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What I'm interested in is the prevalent practices for licensing art within the tabletop games industry:

How is most art commissioned for tabletop games licensed to the creator of the tabletop game itself? For example, how would Wizards of the Coast treat an illustration created for Dungeons and Dragons? What about releasing art into public domain/Creative Commons licensing?

In short, what I'm interested in are answers that look at prior knowledge, industry insights, and legal concerns related to the licensing of external work for a tabletop game.

Kyle Willey
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    What makes you think that CC licenses are iffy when commissioned? That's the normal way of doing this. Typically, an artist will simply charge more for giving the commissioner more license rights; that's true whether it's CC, signing over copyright entirely, or some other agreement. – SevenSidedDie Oct 14 '13 at 20:13
  • The only issue is that they can potentially be terminated. That is to say, if I didn't get a WMFH then release it to CC myself, I'd be in potential trouble 35 years down the line when the termination right comes up against CC, which is something that we've never seen and I don't want to leave in the air. – Kyle Willey Oct 14 '13 at 20:21
  • Oh, I see what you're saying there. Yeah, normally the artist is the one putting it under CC, for extra pay (or altruism). – SevenSidedDie Oct 14 '13 at 20:29
  • Exactly; works well now, but the problem is if the artist really doesn't want their stuff floating around for free (or if their heirs don't), they could get it back under a more restrictive license. – Kyle Willey Oct 14 '13 at 20:43
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    You way want to talk to the folks at Posthuman Studios. Eclipse Phase is distributed under a CC-BY-NC-SA 3.0 license, and they spell out how the license applies to the art in the books. – Erik Schmidt Oct 14 '13 at 20:45
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    As I understand it, termination rights are only for reclaiming copyright that has been signed away. That doesn't apply to licensing, since no transfer of copyright ownership is involved. AFAIK, a perpetual, royalty-free, worldwide license is irrevocable except under its own termination clause. – SevenSidedDie Oct 14 '13 at 21:27
  • @ErikSchmidt will do; I see that they retain the copyright to certain works, which implies WMFH. – Kyle Willey Oct 14 '13 at 21:41
  • @SevenSidedDie: "In the case of any work other than a work made for hire, the exclusive or nonexclusive grant of a transfer or license of copyright or of any right under a copyright, executed by the author on or after January 1, 1978, otherwise than by will, is subject to termination under the following conditions:"

    Copyright includes the rights to license intellectual property. Licenses can and have been voided this way without any termination scheme (a la Superman). In fact, that's pretty much the point of termination, to provide "a second bite at the apple."

     – Kyle Willey Oct 14 '13 at 21:45
  • I'm pretty sure that simply doesn't apply, due to the "otherwise than by will" part. If it did, no open license would ever exist or be enforceable, and termination has (AFAIK) never been used to revoke an open license. – SevenSidedDie Oct 14 '13 at 21:48
  • Will means "last will and testament" sort of will, not "I don't plan to terminate it down the road". The exact concern is that open licenses are not enforceable. Plus, one could argue that they did not will for the work to be permanently under open licenses, which gets back to the whole can of works; this clause is meant to protect artists and has almost always been interpreted for that purpose. – Kyle Willey Oct 14 '13 at 21:50
  • http://en.wikisource.org/wiki/Shrinking_the_Commons:_Termination_of_Copyright_Licenses_and_Transfers_for_the_Benefit_of_the_Public Apparently that concern is considered quite valid. Kyle's right. – Vigilant Oct 15 '13 at 03:22
  • I'm in a copyright law class as part of my studies, so I've gotten somewhat paranoid about licensing. As a general rule as an end-user, were I to take files from MorgueFile/Wikipedia/Open Game Art or the like, I'd be fine unless someone told me to cease and desist and was credible, since it would be the uploader's fault, but on a work I commissioned I don't have that "Well, it said here that it was released, and nobody told me that it's been un-released/released on false premises" stuff. – Kyle Willey Oct 15 '13 at 03:46
  • I thought by the 35 year rule that they had to give you two years notice they were withdrawing the transfer of rights? http://www.copyright.gov/title17/92chap2.html#204 (see 203.a.4 and 203.a.4.A ) – Vigilant Oct 15 '13 at 15:41
  • Yes, I could avoid infringement, but it would also mean going back and removing all the art I'd commissioned. – Kyle Willey Oct 15 '13 at 17:42
  • The only likely instance anyone would withdraw their art at that point is if the book was still massively profitable 35 years later. This would imply you'd have the resources to either renegotiate a deal with the art person or (more likely) commission a different person. My personal plan, having a similar issue, would be to eventually do a second printing with an artist formally hired as an employee, thus securely establishing their contributions as work for hire. Thus, the new book would be enforceably mine without any concerns. – Vigilant Oct 15 '13 at 19:29
  • The whole point of the exercise is to entirely avoid ever having to concern myself with updates and revisions, as game design is a hobby and not a career prospect for me, so I'd like to bounce around projects freely in the future rather than return to clean up legal messes on earlier ones. – Kyle Willey Oct 15 '13 at 23:08
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    Comments are not for chatting. Please incorporate these into your question. – Brian Ballsun-Stanton Oct 16 '13 at 01:36
  • Actually, feel free to delete them, I'm going to shorten this to a "industry standard" question, which means that all the CC/PD stuff is entirely extraneous. – Kyle Willey Oct 16 '13 at 03:12
  • This got turned into a mess by changing the question after the answers - a question that gets away from the real problem in the first place. Closing. – mxyzplk Sep 08 '14 at 04:20

2 Answers2

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No one will care about your game in 35 years. You will be lucky if they care about it in 3 years. If they do care about it in 35 years, doubtless you will have a new version with new art. D&D isn't still using the same illustrations from 35 years ago now are they?

Many people, and I see this in the tech startup world all the time, get wrapped around the axle of "well but what if..." and it causes them to never actually deliver anything; it becomes a risk-averse excuse for inaction. Which is fine - for the other people who are going to do something instead.

The legal, compliance, competitive, etc. landscape will not be the same in 35 years just as it's not the same now as it was 35 years ago.

mxyzplk
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It would seem that Posthuman Studios gets works made as a "work made for hire" then releases them under CC licenses. It wouldn't surprise me overly if other games used a similar system; the copyright licenses in the most recent Earthdawn, Shadowrun, and Legend of the 5 Rings (just what I happened to have) don't mention any distinctions between licensed art and the text of the work; this implies that the copyright is indeed held, not licensed, by the producers of these works, which would typically mean that they were produced as a work made for hire.

So, in short, the common trend seems to be that tabletop roleplaying games are considered a collective work for the sake of qualifying commissioned art as a work made for hire, and to my knowledge no precedent has been established to counteract this general notion.

Erik Schmidt
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Kyle Willey
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  • I suspect that Posthuman does it this way specifically so they can put the entire game under CC licensing with assurance. Adam Jury just made a comment on a Fate Core Google+ page about the Fate Core conversion kit (in development) for EP being possible only because Fate Core is available under a compatible CC license – Erik Schmidt Oct 15 '13 at 23:25
  • For Posthuman, that's likely a large part of it; however, for companies that want a closed-license work under traditional copyright, it's still likely the best solution. – Kyle Willey Oct 15 '13 at 23:28
  • Agreed. People sometimes treat Creative Commons as something distinct from the copyright regime, forgetting that CC relies on copyright. Without copyright there could be no Creative Commons licensing, because it would be unclear who had the legal standing to license the specific rights covered under a Creative Commons license. So the business requirements when commissioning art are similar for closed and CC-licensed collective works. You want to be sure you control the rights, regardless of whether you keep them proprietary or assign them using a permissive license. – Erik Schmidt Oct 15 '13 at 23:50