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I wanted to start a thread that will help everyone learn what to avoid when it comes to contracts, business agreements, terms etc...
Feel free to chime in and share your thoughts and experiences...even if you don't have a solution. Perhaps others can help with answers and best practices.
1. When doing freelance or any type of work for clients where they will end up owning the work, you need to be sure you are protected from a number of things. One that pops to mind is that clients will often provide you with art direction images, reference materials or photos which they may or may not own. The contracts will also state that the work you do is original and not infringing on any rights. So if they give you a picture of Morgan Freeman or Indiana Jones and say copy this...or make it Morgan Freeman...then you would be legally liable if there were problems over doing that. Based on industry best practices, the way to get around it is to include words that state something to the effect of:
Company (the client), will indemnify and hold you harmless (or your employees/officers/agents etc..)from any legal actions or lawsuits which may arise due to materials, or art direction which Company provides to Contractor/Employee (you).
You will want an attorney to put the language perfectly...but you get the gist I hope.
An example...years ago at MB we had a client (Pandemic Studios RIP) refuse to include the above terms. I fought back and they refused to put it. As we wanted the client added to the roster I agreed to move forward. What could go wrong...right? Well...the first thing they asked the artists to do was to put their character in the same pose as Indiana Jones in the famous poster. As I was not managing production I did not know, and the artists didn't know they couldn't do that so closely. It was a different character after all. However, it took all of a day being released for someone to catch the similarity right here on conceptart.org. I immediately responded to their legal at Pandemic and put it on record. Nothing ever happened but it was a panic moment for me. I then knew why they didn't want to include that term.
In other words...if they refuse...there will be problems...as all that says is they are responsible for the rights to the things they give you and you wont get in trouble for doing what you are asked to do. After all, we did not know if EA obtained the rights to that stuff. We have no way of knowing.
However..when in doubt...ask.
Again...not an attorney but this is general biz advice that is hopefully helpful. There are a hundred examples of stuff like this. Please feel free to share your experiences...
Thanks Jason I've never considered such a problem before.
Does email correspondence count as a legally binding agreement? Before I sign a big complicated legaleese contract I ask them to explain what their contract means in simple terms I can understand and I ask them to agree to my simple terms of service, which usually consists of "I bill xyz a day and what you pay me to draw on your dime is your property and responsibility to do with as you please after I have been compensated in full"
Would this protect me if there were any legal trouble?
I'd say it depends on what kind of legal trouble. I think it's always good to outline the the specific terms of an agreement as well as include language that will protect you should a situation occur like the one Jason outlined above. The Graphic Artists Guild Pricing and Ethical Guidelines has a few sample contracts where I pulled my language from.
5. Permissions and Releases
The Client agrees to indemnify and hold the artist harmless against any and all claims, costs, and expenses, including attorney’s fees, due to materials included in the Work at the request of the Client for which no copyright permission or privacy release was requested or for which uses exceed the uses allowed pursuant to a permission or release.
9. Warranty of Originality
The Illustrator warrants and represents that, to the best of his/her knowledge, the work assigned hereunder is original and has not been previously published, or that consent to use has been obtained on an unlimited basis; that all work or portions thereof obtained through the undersigned from third parties is original or, if previously published, that consent to use has been obtained on an unlimited basis; that the Illustrator has full authority to make this agreement; and that the work prepared by the Illustrator does not contain any scandalous, libelous, or unlawful matter. This warranty does not extend to any uses that the Client or others may make of the Artist’s product that may infringe on the rights of others. Client Expressly agrees that it will hold the illustrator harmless for all liability caused by the Client’s use of the Illustrator’s product to the extent such use infringes on the rights of others.
If you're talking about getting paid, then from what I understand, it should hold up in court if both people agree to terms. However, you may want to include specific terms regarding kill fees, payment terms (time to pay and usage rights tied to payment).
Payment for finished work is due upon acceptance, net 30 days. The Client’s right to use the work is conditioned upon receipt of payment within 30 days of acceptance and upon the Client’s compliance with the terms of this agreement. A 3% monthly service charge will be billed against late payment.
I've never signed anything a company sent over besides NDA's and confidentiality agreements. A lot of them had some ridiculous (aka - dangerous for the artist)terms in the contracts.
Hope this helps. And I'm not a lawyer either.
Well...I am a lawyer and here is my input. This of course is not legal advise on any specific matter, just some thoughts and suggestions.
Its tempting to just sign whatever is put in front of you, just to get the job. Its hard to stand your ground and potentially lose the job.
But remember, contracts are for bad times, not good times. At the beginning of the relationship, who doesn't get along?
If everything goes smooth and you get paid, who really cares what the contract says, or even if there is a contract.
When things go wrong, both sides hurry to find the contracts, emails, etc, and see what they provide.
What will you find, when you go looking??
On the specific topic started by Jason, as artists, you will clearly recognize when you are asked to copy some famous image. You would be hard pressed to claim that you never heard of Indiana Jones.
Therefore, unless you have something from the client acknowledging that they have permission to use the image or likeness, you may be found as liable as them.
So yes, always have a contract, and insist on the minimum provisions giving you protection.
Spell out the details as much as possible. Trust me, it will help when it all goes wrong.