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Intellectual Rights

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Javier SaldivarIntellectual Rights
by on Sep 16, 2009 at 3:04:23 am


I am a digital animator/filmmaker. I was hired to make a fully animated commercial for a company. I conceptualized, designed and modeled all the characters visible on the commercial. I was already paid and I delivered the finished piece to the client.

The client really liked the characters I designed for the commercial so mow they want to use these characters for marketing purposes (printed materials, website, etc) and also to represent their brand.

So the question I have is: should I be compensated for the use of these characters outside the commercial I was hired to make?

Any suggestions will be appreciated.

Thank you!


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Arnie SchlisselRe: Intellectual Rights
by on Sep 16, 2009 at 3:26:24 am

What does your original contract say? There's often a clause about this saying who owns logos, characters and other graphic elements developed for the project.


Post production is not an afterthought!

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Javier SaldivarRe: Intellectual Rights
by on Sep 16, 2009 at 3:58:38 am

There is no contract.


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Timothy J. AllenRe: Intellectual Rights
by on Sep 16, 2009 at 9:48:52 pm

It's complicated. You may own the character concept, but not the tangible expression of them. You may own the expression of them, but not the character concept. It greatly depends on what you were actually hired to do and what you gave them as part of the agreement. Even with no contract, there has to be some verbal contract.

Do you have email threads that speak to the roles and responsibilities of each party in the agreement?

Rather than approach this pessimistically, you should approach it as an opportunity to further develop the characters and their visual representation... this time with a clear contract that covers who owns what.

I'm assuming that they would need tangible representation of the characters in a different format or medium than you have already provided. If they are simply re-purposing what you have already provided to them, you may have a tougher call to make.

The big question is "How much do you value the intellectual property at stake?" It seems that it's at least worth opening the dialog with the client, but I have to warn you that clients tend to understand these things even less than artists. That's when they bring lawyers in to explain it to them - and a lawyer is always going to present and fight for the most advantageous position for the person who is paying them.

It boggles my mind when people don't use contracts - or when they are in the mindset that a contract is only useful if something goes wrong. It's not so much for when things go wrong - the best use of a contract is to ensure what "things going right" means. A contract is simply a tool for you and your clients to clarify expectations on both sides of the fence before the work starts - so that you are both happy when the terms of the agreement are met.

Apologies for the rant.
Best of luck to you!

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Chris BlairRe: Intellectual Rights
by on Sep 16, 2009 at 11:42:37 pm

I've read up a lot on copyright law over the years and have never come across the terms "character concept" or "tangible expression." I'm not saying they don't exist and aren't valid but there are tons of resources online as well as a handful of media law books written specifically about copyright law and it's not addressed in any of them I've read so I'm not sure what they mean.

Most media copyright laws (which intellectual property falls under) are tilted in favor of the author of the media. So in the absence of a contract, he's got a pretty good case for owning everything related to the piece, including the characters and the concept. So he should definitely be compensated in some way for their continued use of characters he created. Of course, it's a delicate situation to address since the client likely believes they're the rightful owners, but he's well within his legal and ethical bounds to ask for some sort of compensation for them since they want to use his creation to further promote their company.

The original creators of the Taco Bell chihuahua were awarded a huge settlement from the ad agency and YUM Brands about a year ago because the agency took their creation, (which amounted to basically an idea they pitched to YUM and the agency), and built that entire ad campaign around it. The agency and YUM brands also made money from merchandising of the character. It took the two guys that sued almost a decade, but they won.

As for people not using contracts. We have dozens of clients where it would literally be impossible to conduct business and insist on contracts on every project. One large client will often call us on a Monday and need a completed marketing video by Thursday or Friday. And I'm not talking a low-budget, thrown together video. I'm talking a nicely produced, edited piece with slick graphics. Just getting them an estimate, coordinating all the particulars (scripting, layout & design, source footage to use or to acquire) is enough to keep half our staff busy for the entire week. By the time we drafted the contract, sent it to their marketing director, got it signed and sent back, the video would be completed and out the door, billed and within a week paid for. That said, we get contracts on most projects we do.

Chris Blair
Magnetic Image, Inc.
Evansville, IN

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Timothy J. AllenRe: Intellectual Rights
by on Sep 17, 2009 at 4:38:58 am

The reason I'm familiar with those terms is because I've been the client who is contracting with an animation studio to create characters that would then be used by a third party organization (in this case a federal government agency). The resulting products were broadcast on PBS stations across the country and cable networks. When we were working to get these aired, it was clear that we would need to be able to furnish clear evidence of who owns the Intellectual Property (I.P.) for anything that might be trademarked in the project. We needed to be clear about who owned those rights in order to protect the brand.

But it wasn't about copyright, it was about trademarks.

We also respond to quick requests with established clients. In those cases, we still have a blanket "memorandum of agreement" that is signed before we commit equipment and personnel to a project. Sometimes the agreement is for "X amount of products" within "X amount of time". That speeds things along, since the technical and artistic details for each specific product can be handled by the Producer under the basic financial and I.P. provisions of the main agreement.

I do understand that there is a line between clarifying things with the client and burdening them - or scaring them away - with paperwork. That line is different with every client and with every vendor.

Personally, I'd rather risk losing a the job from over-communicating before I've actually put a full crew on something than have something fall through because of a lack of communication after I've already committed substantial resources to a project. Usually it's as simple as a 10-minute (or less) run through of what I think we've agreed to and asking the client if there are any follow up questions, concerns or clarifications we need to address regarding any of it.

It's just rare that I see someone post to this forum wishing they didn't have a contract with their client that spells out expectations clearly for both sides. If the contract is understood by both parties, most issues can be addressed before they ever come up. Dealing with potential misunderstandings on paper before the production starts can save time, money and client relationships.

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Scott CarnegieRe: Intellectual Rights
by on Sep 25, 2009 at 3:07:17 pm

Always hav a contract when I.P. is being created, always.

That said, there are differnet laws for different places. In Canada, if I am hired to create a character for a client and there is no contract, by default I would be the creator of that character and would own the I.P.

I believe that the opposite is true in the U.S. Unless otherwise stated in a contract, you would be a "work-for-hire" and the entity paying you would own it. I'm 100% about that of course.

The Law and Video podcast is a good resource, check out a few episodes and you'll learn a thing or two, I did :)

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