(I'm really not doing this -just- to be perverse--I think it's important to
look at both sides of any negotiation--if only to improve your own tactical
Note that the GAG guidelines exceptions to opposition to work for hire fall
into two categories. 1) Where an addition is being made to a copyrightable
work and others having claims would weaken the true author's copyright
position. 2) Large projects where the work is (or should be) a group effort
and where sorting out individual claims would be nearly impossible and/or
rights are likely to be freely traded later, making many separate
negotiations tremendously counterproductive..
A major interactive piece clearly falls into the latter category. If you
were producing a complex work that is supposed to be a team effort you
would be a chump to leave yourself in the position where you cannot expand
on a visual motif or do variations on a theme without possibly having
someone make outrageous demands for compensation ex post facto.
Jill, OTOH, would be a chump to do work where the price was based on one
set of assumptions and then allow the rules to be changed to her detriment.
The two solutions I can see are Jill negotiating a price that is high
enough to cover a complete buyout and leave her happy or the client
negotiating a "what if" series where they say "If we use your work for x
you get $a but if we use it for y you get $b."
It is my experience that most disputes over "work for hire" or copyright
buyouts are silliness on the part of both parties. Usually the buyer has
particular needs or particular fears that could be satisfied otherwise and
the same is true of the seller. Typical is the client who wants the
photographer to transfer the copyright. Photographers are the folk most
aware of copyright issues and they usually refuse. Everyone thinks everyone
else is unreasonable and the deal goes south.
Usually the client just wants to make sure that the photo won't be used
later in a way that would embarrass them or benefit their competition. The
photographer just wants to be able to use the image to promote herself.
Since the photo is usually something like a picture of an old guy in a suit
in front of a warehouse full of boxes with the client's logo on them and
the client has no intention of preventing the photographer's self
promotion, the whole argument makes no sense.
If all parties were upfront about their desires and concerns, working out a
usage agreement that everyone would like would be easy. If, however, the
client falls into the second most common category--those who intend to use
the work beyond what they say and are just trying to get a cheap
price--such negotiations will reveal that, also. The usual dodge is, of
course, to do this all on a rush basis and claim ignorance or pull
something like Jill described--amending the contract after the fact with a
purchase order that comes late.
I don't believe that there is usually one situation for people with reps
and another for those without. It's more like one situation for those who
bargain in good faith but protect themselves and negotiate well and another
for those who either say "I'm an artist; I can't be bothered by this stuff"
or "You guys just want to fuck me." (BTW, if publishers wanting as much for
their money as they can get is the desire to fuck artists, is the fact that
artists want as much for their work as they can get a desire to fuck
Getting a rep isn't a viable choice for most people. Jill is one of the
minority whose category of work, its quality, and her experience make her
attractive to a good rep.
An important point missed in this discussion is that there is going to be
more work all the time on projects that are complex enough that many people
contribute. To the extent that these are done by ad hoc groups rather than
by employees of one company, copyright gripes are likely. If, however,
people stick to traditional rights negotiations it means that the tendency
will be toward compartmentalized working methods. Only employees who have
no copyrights will freely work as a group, feeding off each other's
creativity. A few big firms will do the truly good work and ad hoc work
groups and use of freelancers will fade. The problem is how to allow people
to work as teams and still be properly compensated.
At 10:24 AM -0700 8/21/98, Sean Cavanaugh wrote:
>> Actually I think it's the people who read their contracts carefully before
>> signing, and who understand and accept the terms they're agreeing to, who
>> generally end up winning.
> Get an agent.
> With a few notable exceptions, publishers are out to FUCK artists,
>writers, etc. It's about ownership and power, and they want to grab as much
>of that as they possibly can, and right off the bat. They will rationalize
>their position by telling you about their risks, costs, etc., but it really
>is little more than hollow rationalization of what is at heart an
>exceedingly greedy and unethical business philosophy. They also assume that
>you, as an artist, writer, freelancer, etc., are a commodity, unless you
>think and act otherwise. Having an agent says you're not a commodity, or at
>least puts a little doubt in the publisher's mind.
> It's almost as if publishers have two types of contracts: the one they
>offer to people with representation, and the one they offer to everyone
>else, the one that serves as chortle fodder for their lawyers, producers,
>acquisitions editors, managers, and lackeys.
> And everything you don't explicitly state (and vigorously defend) as
>yours, they'll steal. Proposals, comps, etc.
> Jill was right-on to tell the studio to get bent. Unfortunately they know
>they'll find an artist who'll accept their terms just for the prestige
>value, or maybe to get his foot in the door.
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