Who owns a commissioned piece?

[eldargal]

I don't mean the physical object, rather the 'rights' to it. One of my brothers recently commissioned a few accessories for his IG army and a piece of terrain from a sculptor he knows. He has since had someone else cast the finished product up in resin so as not to damage the original GS masters. They proved to be quite popular in our games group so he has been selling some of the resin copies. The sculptor found out and is threatening to sue claiming that he owns the rights to the sculpts so he should receive royalites.

My brother is visiting the family lawyer later today, but what is your opinion on the matter, loungers? Should my brother be paying royalties or does he own outright what he commissions?

[DrLove42]

In my opinion the creative rights belong your brother. Obviously.

But technically the artwork belongs to the sculptor

Think of it as a piece of art. You commision a piece from a professional painter. He paints it and you recieve it. You then pay someone else to make copies of it, which you sell on. Although you as the original creative mind behind the project came up with it, you are selling the artists work and not cutting him in on it

[slxiii]

In my opinion the creative rights belong your brother. Obviously.

But technically the artwork belongs to the sculptor

Think of it as a piece of art. You commision a piece from a professional painter. He paints it and you recieve it. You then pay someone else to make copies of it, which you sell on. Although you as the original creative mind behind the project came up with it, you are selling the artists work and not cutting him in on it

Agreed. Had no profit been involved i don't think it would be a problem.

[addamsfamily36]

hey eldargal. If i may suggest i would tell your brother to go to the sculptors website if he has one and search for any disclaimers or copyrights. Whenever i do a piece of Graphic design (2d), i should copyright it but i often don't. If working for a client i am usually either using their own imagery or i am creating it for them. IF i wanted to maintain royalties or copyrights i would have to negotiaite / write that up into a contract before the commision of the piece started. Once i have handed over the work, i have the right to publish it as part of my portfolio etc but i can;t then go to the client and say wait you can;t make posters of my design its my copyright, as i gave that up when they paid for it. As far as i am aware i cannot see why this would be any different for a commisoned sculpt. I hope this helps.

[addamsfamily36]

Hmmm just read an article on " a guide to commisioned artwork"

It states: "Ownership & moral rights - under copyright laws the artist possesses first ownership of a work of art they themselves have created. You need to agree in advance with the artist the ownership and copyright of the artwork."

This is where it gets very grey. If the piece was a work-for-hire contract all rights go to your brother. If not, then rights might be retained by the original sculptor. Either way i think it all depends on if there was any contract or agreement at the beginning of the process.

[eldargal]

Well my brother was quite clear that he was hiring the sculptor to make these things for him, it was my brother who designed them the sculptor just executed the design. Also my brother is just charging a few pounds to cover the cost of the resin and the time and effort he put into making the moulds and taking the casts. We are talking five pounds for a batch of casts, it isn't like he has start selling them on a website for profit.

[Denzark]

Tell your brother to call him out for a duel.

You know, grass before breakfast. Pistols are hard to get hold of and any poxy artist will be crap with swords.

[eldargal]

My brother would probably feel honour bound to lend him one of his pistols.:rolleyes:

[addamsfamily36]

Yeh in that case the original artwork, the design for the model was done by your brother so he has original creative copyright. He then hired the sculptor on a work for hire basis (by the sounds of things). So i would be inclined to say your brother is fine casting up. Even if he didn't sell them, he could cast them up for personal use no problems.

[StraightSilver]

Yeah I agree that essentially the sculpter was paid to produce something your brother designed and that your brother therefore owns the rights to it.

A company I am involved in has commissioned independent sculptors to do commisions for us based on our designs, but we then own the rights to mass produce these items by casting them up.

However in that instance this was agreed in the contracts beforehand.

But I don't think the original sculptor really has a leg to stand on here as technically he was a freelancer working to your brother's designs.

I would say though that it is normally good etiquette to attach the names of sculptors and painters to any works you produce, so maybe your brother could recommend him to the other guys in the group?

Or better still the original sculptor could make up some fliers advertising his work and your brother could include these with any of the models he sells, thereby generating more work for the sculptor and hopefully sorting the situation out.

But as I say, I am of the opinion in this case that your brother is in the right.

[isotope99]

All copyrights, trademarks and one of your kidneys belong to Games Workshop until the end of time.

Whilst not a legal expert, I would say that unless there is something in the terms and conditions that says the sculptor retains copyright on the finished design then it stays with the person who asked for it. Things probably get more complicated if this was an informal arrangement with no contract/terms & conditions. Tell the sculptor that you are countersuing them for using the original design.

I believe that there is also an overarching rule that says that the copyright holder must demonstrate some kind of loss to be redressed, which is a tough sell if you're talking low numbers sold at cost for no profit.

[scadugenga]

Copyright/IP law is tricksy in the states. I cannot imagine how it would be across the pond, since you folk do things a mite differently over there. :)

However, based upon the fact that your brother conceived the idea and created the initial design before having someone else create the master--I don't think your brother has much to worry about. If anything, the sculptor may (again, having no knowledge of your IP legal system) end up wasting a lot of money in legal fees for little to no result.

[Hive Mind]

Hey. I'm a second year law student and while admittedly copyrights and IP law isn't my thing I know enough to know that unless there's a contractual arrangement allowing for the sculptor to retain any rights he doesn't have a claim.

I've just got back home after sitting an international law exam and I haven't slept for two days so right now I'm going to crash hard but if you want I'll elaborate on this later when I don't feel like I've gone into the future.

[eldargal]

Thanks but its ok, my brother has gone to see our lawyer and someone in his firm ought to know exactly whats what.:) He is rather annoyed, not so much at the threat of legal action but of being accused of ripping someone off.

[energongoodie]

I get commissioned to do artwork for tv shows. Once created, I do not own those graphics, they do and they are free to do what they want with them.
Even stuff I have done off my own back that hasn't been asked for and isn't really for use in the show. Like these photos:
http://www.e4.com/misfits/pictures/series2/series2-bts-filming.html?decorator-index=1

They come and say 'give us everything, it's ours'. But... I am contracted. Without a written understanding, all bets are off.

[Grailkeeper]

I'm a lawyer doing a masters in law, although its about 3 years since I studied IP law, and I don't have any of the text books in front of me.

Firstly- are there any GW symbols or Logos on the pieces?

Secondly was there any form of written contract between your brother and the sculptor?- Did they discuss who would own the IP in the works in any detail other than the fact your brother commissioned him to make the pieces? Can you give me any of the details of the background of the agreement

I might be able to have a look in the college library at some stage next week and give you a bit of a run down. I must admit my gut instinct from what I do know is that it belongs to the artist and not your brother.

Oh and just so I don't get into any kind of ethical difficulty- I should point out that this is not legal advise but just a pointer. (If i gave legal advise and got it wrong, you could sue me too.)

[Drew da Destroya]

I'm a lawyer doing a masters in law, although its about 3 years since I studied IP law, and I don't have any of the text books in front of me.

Firstly- are there any GW symbols or Logos on the pieces?

Secondly was there any form of written contract between your brother and the sculptor?- Did they discuss who would own the IP in the works in any detail other than the fact your brother commissioned him to make the pieces? Can you give me any of the details of the background of the agreement

I might be able to have a look in the college library at some stage next week and give you a bit of a run down. I must admit my gut instinct from what I do know is that it belongs to the artist and not your brother.

Oh and just so I don't get into any kind of ethical difficulty- I should point out that this is not legal advise but just a pointer. (If i gave legal advise and got it wrong, you could sue me too.)

It seems like her brother is the artist (he designed the pieces), they were just sculpted by a third party. Not sure if that changes your "pointer".

It also seems like there wasn't a written contract, although I'm getting that just by inference, and I could be wrong.

[eldargal]

No written contract beyond a receipt. My brother did the actual design, the sculptor just executed it. No GW symbols, my brother has some moulds he made of various GW insignia relevent to his armies which he has used to add insignia to the terrain piece, but he was never going to sell those.

[Necron_Lord]

I don't know about copyright law in the UK, but I had a case similar to yours in an Entertainment Law class in my MBA program. In that case a non-profit commissioned a sculpture about homeless people to use in a parade. They then had possession and ownership of the sculpture. It was such a success that they wanted to show it off across the country to further generate awareness about homelessness. For some reason the sculptor objected, and asked for the non-profit not to display it because he asserted that he had copyright to the sculpture. The case was Community for Creative Non-Violence v. Reid (1989), which actually went to the Supreme Court of the United States.

Bottom line, ideas aren't copyrightable, only the original expression of ideas fixated in a durable medium are. It will hinge on how specific your brother's instructions were, how similar the sculpture was to the idea of your brother's, and even then it probably won't hold because expression of the idea by creating the mold is what's copyrightable, so that would belong to the sculptor. It would seem that since your brother didn't make the sculptor sign a work-for-hire contract and thus giving the copyright to himself, my gut would tell me that the sculptor has the copyright. While your brother may own the landscape or even the mold, any replications, licensing or public display of the work belongs to the copyright holder, which would seem to be the sculptor.

Again, the precedent in the UK may be different than in the States, but I think your brother blew it.

[Necron2.0]

My brother did the actual design, the sculptor just executed it.

The other side of the equation is, can he prove this? Does he have anything other than his word that he was the creative designer (diagrams, notes, stick figures, etc.)?

[eldargal]

Yep he has all the drawings, with dates on them. Proper design drawings too, if you look at the pictures and look at the finished product it is quite clear they are the same thing, right down to chips in the stonework and gashes in the metal etc.

[Unzuul the Lascivious]

Your brother paid outright for the item and did original concept drawings. He then paid for the sculptor to carry out the work. Rights to the piece belong to your brother, as the sculptor was paid for his work. He has no claim to the rights and is a lackwit for thinking he does. If he designed them, however, the creative rights do rest with him. Also, if he did not make clear his views on this matter before the transaction was complete, then any verbal contract is null and void. Only a written contract will prove anything, so I'd tell the guy to pee up his leg and play with the steam.

[eldargal]

Well I heard back from my brother, the gist of the meeting with the lawyer being:

The drawings show my brother designed it, an email to the artist prior to the commission icnluding a scan of one of the drawings proves it. The artist could try and fight it but it would an uphill battle assuming we didn't just string everything out and wait for him to run out of money. :rolleyes:

They are drafting a letter to the artist, and my brother is going to offer him another commission to show there was nothing personal on his side.

[energongoodie]

Can we see a picture of the model? Or a drawing? All this talk about it has peaked my curiosity.

[Corvus-Master-of-The-4th]

Can we see a picture of the model? Or a drawing? All this talk about it has peaked my curiosity.

Agreed

[Lockark]

I am personally a artiest and do alot of drawing. For your brother it counts on the verbal agreement/understanding of when he commissioned the sculptor.

If it was understood that this commission was for your brother's own personal use, then the artiest is in the right for wanting royalties for his work. Because it was never part of the agreement to have the pieace replicated and sold.

If the agreement was with the understanding that the piece was going to be reproduced and sold, then your brother is in the right.


From the way you tell the story it sounds like the former, and I actually feel really bad for the sculptor. (Especially after the comment about about stringing out a legal proceeding waiting for the other to run out of money. I have been on the receiving end of that.)

=|

[eldargal]

I'll see what I can do.:)

My brother did make it clear he was going to cast copies of it, he doesn't recall if he mentioned he might sell some or not. The artist says he did not say that. They seem to have come to some kind of arrangement last night, the sculptor does good work and none of us want a confrontation with him.


Can we see a picture of the model? Or a drawing? All this talk about it has peaked my curiosity.

[Lemt]

Glad it was all worked out. Morale of the story, always write down some sort of IP deal, even if only in email form.

And I too am now curious to see the piece.

[Lockark]

I'll see what I can do.:)

My brother did make it clear he was going to cast copies of it, he doesn't recall if he mentioned he might sell some or not. The artist says he did not say that. They seem to have come to some kind of arrangement last night, the sculptor does good work and none of us want a confrontation with him.

Casting copies for one's personal use, and selling them for money are kinda two completely different things. (For what I assume is obvious reasons.)

It is good to hear thow the problem was sorted out of court. Best of Luck to both your brother and the sculptor. If this pieces is so good/nice then hopefully they will be able to work together again.

^^

[L192837465]

If the commissioned party had a disclaimer on their site, they own all rights to the item.

If I write down "speed reactive windshield wiper blades" and, say, BMW designs that and produces it on a car, they do NOT owe you royalties.

If you are on the BMW design team and are given patent credit, you could depending on your status, but in THAT case, BMW would own the rights.

If that designer then went and sold the patent elsewhere, BMW could sue him.

Actually, now with that in play, I have no idea. i think it's fair game for the sculptor to say "yo, bro, you want casts made, let me do em because you're stealing my business"

[Thornblood]

Im an illustrator in the UK. Whilst this has been resolved I thought i might mention the shift in law and ownership in this area of late.

Firstly, a verbal contract is not worth the paper it is written on. Whilst people may even try to infer non-verbal contracts in sales, at the time of the sale, on request the seller must produce a receipt, which is in fact a legal contract of a sale. If there is no contract, there is nothing to stand on. However- for theft of ideas (intellectual property), i recommend posting it to yourself- sheet music, photos of sculptures and art prints, CD's, and NOT OPENING THEM, as the postmark is legally binding and you can prove in a court of law that you created said work before it was sent through the mail. This is a poor-mans form of copyrighting.

When you sell a piece of art/sculpture/urinal the new owner owns it and can do whatever they like with it and replicate it as many times as they like.

However.

New contractual law is being implemented slowly, and worldwide that a buyer only owns an image for a set amount of time- like a rental fee. This is why in the back of many photo-heavy magazines that the opportunity to buy back issues only has the last few pictured- the cover images contract has expired for older issues. The older issues were produced within the time frame of the contract so they are fine to continue being sold.

Similarly, if such a contract would be created for a sculpt, say for a months use, the buyer could create as many as he can within a month and then it would become illegal to keep reproducing them. He can then sell the copies at his leisure, but cannot create any more. However if the buyer claimed that he owned the model in question, the sculptor would now produce the postmarked unopened envelope to prove that he has the earliest legally dated images of said sculpt, proving it was his.

It is up to the artist/ their agent to have this written into their contracts. I was gutted at uni when we were halfway through a brief and the clients wanted unlimited access to the work we had produced, but the uni contract would be that the contract expires when we graduate. At which point the buyers would have been able to contact us, but we would have been in a position to name our prices. So we never got paid for that job, and the clients never got the artwork (and we were asked to never contact them again).

However, an in-house creative has normally signed a contract selling there soul for a stable wage and job security (allowing you to eat every day and prove income and rent somewhere), and everything they produce is generally owned by the comopany they work for (i.e. games workshop's creative team).

I hope this helps!

[Lemt]

That mail-to-self seems like a great idea, think i'll be using it!