News & Insights

General BusinessNovember 16, 2018by Stanton LawWhen Fanart Meets Copyright Law: Artists, Ubisoft, and Beyond Good and Evil 2

by Jessica Winans.

During its presentation last summer at the giant video game conference E3 Expo, Ubisoft announced a collaboration with Joseph Gordon Levitt’s company, hitRECord, for Ubisoft’s upcoming video game, Beyond Good and Evil 2. This collaboration, Ubisoft and Levitt announced, would allow fans to submit graphics, music, and other content that might make an appearance in the game.

Instead of being applauded for this opportunity to let fans “be a part of the game,” Ubisoft and hitRECord were hit with a backlash. Artists and others spoke up in protest, advocating their belief that artists should be compensated for their work. They felt that Ubisoft’s solicitation of in-game art was unethical.

This ethical issue notwithstanding, are there other risks an artist might face if they submit content to this project? What happens to that artwork when they submit it? What rights does an artist retain, if any, to the work once they’ve submitted? And, are they opening themselves up to liability by self-identifying as fan artists?

Copyright and Licensing: What Rights Do Creators Have?

First, here is a brief overview of the rights that graphic designers, artists, and composers have when they create content.

Every copyright holder has a set of exclusive rights that relate to what they can do with their work. These rights are defined in Section 106 of the Copyright Act. Some of these rights include reproducing the work, distributing copies of the work, using the work for commercial purposes, and creating derivative works—for example, adapting a book into a film.

Copyright holders can transfer (or assign) their rights to another, giving up their ownership interest in the work. They can also license some, or all, of these exclusive rights. Licensing allows creators to retain their ownership and control over the work while also letting others use the work in a way that maybe they can’t do by themselves. To continue with the film adaptation example above, an author of a popular book might sell the “movie rights” to a movie studio because they don’t have the skillset to produce a film.

Licenses can be broad or narrow, depending on the terms. Licenses can have limited terms, or they can be unlimited. It all depends on what the parties agree to at the time of the agreement.

hitRECord’s Terms of Use: Licensing and Assignment

So back to the Beyond Good and Evil 2 project. According to hitRECord’s Terms of Service (TOS), when someone submits content to the website, they grant hitRECord a “worldwide, non-exclusive, royalty-free, sublicensable, perpetual (for the duration of the copyrighted work)… and transferable license” to do basically whatever it wants with the content. These broad terms include the right to host, transfer, publicly display, reproduce, create derivative works, including in advertising, etc.

In short, the creator is licensing all of their copyright holder rights to hitRECord. They remain owners of the work, but the license gives hitRECord permission to use the work however they want. They can even assign or sublicense it to third parties.

Moreover, hitRECord’s license takes effect even if the user’s contribution isn’t used in a “final product” for which the company’s monetization terms would apply. This means there may be situations where an artist’s contribution is used but the artist may not be paid.

The license also specifies that users may delete their contributions and their accounts, but they cannot revoke the licenses for content that contains the artist’s contribution and was created before the deletion occurred. Basically, once you submit content, it’s really too late to undo anything.

In addition, the TOS specify that users may be asked to assign their rights to certain third parties. The Ubisoft collaboration is an example of when an assignment would be required. Ubisoft wants to make sure that submitted graphics and music don’t appear in games from other studios. It’s likely they would require artists to assign their rights to Ubisoft if their contributions were used in the final Beyond Good and Evil 2 game.

What Are the Risks?

If an artist submits material to the hitRECord/Ubisoft collaboration and their work isn’t chosen to appear in-game, what then?

If creators don’t assign their rights, then they can continue to exercise their Section 106 rights over their work. They can make copies and sell prints, perform their music piece at a concert, etc. However, if their work appears in any of Ubisoft’s assets, like previously-created themes or images of the characters, then their work becomes infringing and they don’t have those exclusive rights. Remember, for a copyright to be valid, the work can’t infringe on another’s rights. In this case, the artist has created work for free that they can’t monetize, and, worse, may have even put a target on their backs.

By participating in the collaboration, artists are essentially telling Ubisoft that they are creators of derivative fanart or other works. Fanart, fanfiction, cosplays, and other fan-created works are common in the video game industry. In some cases, studios encourage the creation of otherwise-infringing derivative works by soliciting fanart for contests or providing 360-degree character views for cosplay.

At the end of the day, though, fan creators are at the whim of the rights holder. If a rights holder decides they want to discourage these works, they have the right to issue a cease and desist or initiate a lawsuit against fan creators. In a way, the Beyond Good and Evil 2 collaboration has created an easily-accessible resource of fan creators who can be targeted if Ubisoft decides to enforce its intellectual property rights.

Create with Caution

As artists grapple with the ethics of working for free or for exposure, they should also think carefully about the risks they face when creating unauthorized derivative works. They should be careful to ensure their portfolio includes original work they can monetize. Also, when submitting work to a contest or a collaborative website like hitRECord, they should verify that they can maintain all the rights in anything they submit and agree with the terms of use. After all, you can die from exposure.

Learn More About Legal Risk to Artists, Musicians, and Creators

Copyrights can be complex, and it’s normal to have questions about how to protect your rights to the works you have created. Contact Atlanta business attorney Jessica Winans at Stanton Law by email or at 404-531-2341. She can help you understand your rights and how a company’s terms of service may alter them.