Tuesday, November 20, 2012

More Artist Exploitation

In the past, if you pitched an idea to a studio, they would ask you to sign a release form before pitching.  The form stated that the studio might already be developing a property similar to what you were about to pitch and that you acknowledged this.  The purpose of the form was to prevent the people pitching from launching lawsuits if they felt their ideas had been stolen by the studios.  In truth, at any given moment, studios have multiple properties in development and coincidences do occur.  There were also cases where the release forms allowed studios to rip off ideas without paying for them.

However, the release form made no claims to ownership of the material being pitched.  The pitcher was free to take the material anywhere else.

The world has changed for the worse.  Sony is hiring storyboard artists and visual development artists.  They are not looking for ideas here; they are looking for artists who can draw and develop ideas that Sony will provide.  It is clearly a work-for-hire arrangement.  Yet Sony, in its terms of use portion of the online application for both jobs states this:

7. Submissions
Subject to applicable law and except as otherwise expressly provided in any other agreement that you (or your employer if you are not employed by SPE) may have with SPE with respect to the resources made available on this Site (a “Base Agreement”):
• You agree that any intellectual property or materials, including but not limited to questions, comments, suggestions, ideas, discoveries, plans, notes, drawings, original or creative materials, or other information, provided by you in the form of e-mail or electronic submissions to SPE, or uploads or postings to this Site (“Submissions”), shall become the sole property of SPE to the fullest extent permitted by applicable law and will be considered "works made for hire" or "commissioned works" owned by SPE;
• To the extent that any Submission may not constitute a "work made for hire" or "commissioned work" owned by SPE under applicable law, you hereby irrevocably assign, and agree to assign, to SPE all current and future right, title and interest in any and all such Submissions; and
• SPE shall own exclusive rights, including any and all intellectual property rights, and shall be entitled to the unrestricted use of Submissions for any purpose, commercial or otherwise, without acknowledgment or additional compensation to you.
In the event applicable law operates to prevent such assignment described above, or otherwise prevents SPE from becoming the sole owner of any such Submissions, you agree to grant to SPE, and this provision shall be effective as granting to SPE, (with unfettered rights of assignment) a perpetual, worldwide, paid-in-full, nonexclusive right (including any moral rights) and license to make, use, sell, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, communicate to the public, perform and display the Submissions (in whole or in part) worldwide and or to incorporate it in other works in any form, media, or technology now known or later developed, for the full term of any rights that may exist in any such Submissions.
By making Submissions, you represent that (i) you have full power and authority to make the assignment and license set forth above, (ii) the Submissions do not infringe the intellectual property rights of any third party, and (iii) SPE shall be free and have the right to use, assign, modify, edit, alter, adapt, distribute, dispose, promote, display, and transmit the Submissions, or reproduce them, in whole or in part, without compensation, notification, or additional consent from you or from any third party.

Essentially, the above states that Sony takes ownership of your portfolio material when you apply for the job.  If you are submitting samples of work you have done for other companies, Sony wants you to assign the rights to them. You clearly don't have the authority to do that for work you don't own, so that means that you are not legally allowed to show Sony work you've done for other companies.  Sort of defeats the purpose of a submission portfolio, doesn't it?

What's clearly disturbing though, is that any original work in your portfolio becomes their property.  This does not depend on whether they hire you or not, they get ownership because you applied.

How absurd is this?  It means that legally, you could not take your own work and use it to apply to another company later, as it would now be owned by Sony.  Furthermore, what right does Sony have to take ownership of your work without payment?  And of course, it's not enough that Sony owns it, they list all the ways that they can use and mutilate your work "without compensation, notification, additional consent from you or from any third party."

Sony's lawyers have been overzealous here.  It means that nobody should be applying for these jobs, as you can't show them your work for others and shouldn't show them your personal work.

Undoubtedly, someone will say it's just boilerplate.  Sony would never exercise these rights, they're just trying to protect themselves.  People sign what they have to in order to get work.  But it remains a legal document unless it is successfully challenged in court, and that takes time and money.

Imagine this scenario.  I may hire you, but before you apply, I say you have to sign an I.O.U. for $100,000.  I have no intention of ever collecting.  It's just a formality.  But the fact remains that by applying to work for me, you've given me the right to collect $100,000 from you.  Would you want that hanging over your head?  Would you want to hire a lawyer and go to court if I decide to collect?  Isn't it doubly absurd if I don't hire you and never pay you a nickel but still want the $100,000?

Sony needs to rewrite their terms of use. 

22 comments:

Charles Kenny said...

The real worry is how many applicants will actually read the full TOS. The vast majority of people tend to skip the legalese and just click accept.

Normally there is nothing to worry about but when somebody buries a dirty trick like this, it really does drive home the point that you have to know what you are getting into.

Virgil said...

Damn this is mental!! How can this even be possible, legally? They do write "to the fullest extent permitted by applicable law". So my problem is with this law that actually allows them to write and use such a form. Companies are allowed to write anything they want in contracts? If I write a contract that states that I own you, personally, and you sign it cuz you didn't read all those 965 pages of contract... that means you can actually, legally, become my slave? Of course not, it's mental... and illegal. Also, I don't think it should be legally possible to write in small print in a contract that deals with selling shoes... something like... 'and you also sell us your house for 25 cents'. And anyway, shouldn't I be held legally responsible for a crime against that person, if I even try to scam them? Back to Sony, if this shit is legal... it's at least morally wrong. If I sell the rights to my work I should do it knowingly, with a contract that deals with exactly that and nothing else, and I should be fairly compensated.

richard o'connor said...

...published before I could sign...

richard o'connor said...

The law doesn't permit contracts like one which gives entities copyright over any material that passes through their door. Whether a party signs this agreement or not, it's unenforceable.

Sony's concern should be whether this language invalidates the entirety of their submission agreement.

It could open them up to unexpected litigation.

(apologies if I'm jamming up your comments, browser is acting screwy)

Alan Cook said...

I'm sure that this type of agreement is fairly standard. I'd imagine studios enact such a broad language to protect themselves from litigation if a studio comes up with an idea that is similar to what an artist had in a portfolio.

Sarah said...

Alan, I'm sure I've never seen any other studio flat-out say "everything in your portfolio will become our property, and you will lose all rights to it whether you're hired or not."

If they're only trying "to protect themselves from litigation if [they] come up with an idea that is similar to what an artist had in a portfolio," why do they need language that so very clearly gives them the right to mine applicants' portfolios for material, steal whatever they want from it, and use it in any way they see fit without compensating the creator in any way whatsoever?

Richard said...

That's outrageous!
The first dot point says it all, and it's not even written in some legal mumbo jumbo manner.
As Charles Kenny said "how many people read the full TOS"
Yikes!

Tim said...

I was once presented with a contract that had a clause that said if the studio got sued for anything in the movie (like a copyright or trademark infringement), that I could be held financially responsible. NOT just if the infraction was my fault, but if it happened at all. It was simply poorly worded. So I pointed it out to the studio lawyer, and he said, "Oh, but we would never follow thru with that."
Me: But it says you can.
Lawyer: Yeah, but we wouldn't.
Me: But it says you can.
Lawyer: Fine. What if we re-worded it?
Me: Thank you.

Alan Cook said...

Mark,

Thanks first of all for pointing this out. Like you said though this seems boilerplate to me.

Sarah,  I've pulled up the terms of use from various feature animation studios. The practice is of course outrageous, however, the wording is almost universally the same. Submit your work to us, and we can use it however we want. It is an overarching reaction to studios being sued over idea theft, rightly or wrongly, and they are protecting themselves in an overly hamhanded  manner. Most will say they get a license to use your work as they see fit. Dreamworks' does seem to be the best worded to balance the rights of the artist vs the studio. Take a look:

Alan Cook said...

Dreamworks

"In the event that You submit Your Portfolio as requested, You hereby acknowledge and agree that You will not receive any compensation for submitting Your Portfolio; that You are submitting the Portfolio voluntarily (and not in confidence or trust); that no confidential or fiduciary relationship is intended or created by reason of the submission of the Portfolio or otherwise; and that the Portfolio (and any individual element in the Portfolio) may be identical or similar to material that is or may be in development at DreamWorks.  You agree that You understand that the purpose of this policy and these terms is to avoid the possibility of future misunderstandings or disputes when projects developed independently by DreamWorks might appear to be similar to others’ creative works.

Nothing herein, or in the submission of the Portfolio, shall place DreamWorks in any different position from any other member of the public with respect to the Portfolio.  Accordingly, any part of the Portfolio that could be freely used by a member of the public may be used by DreamWorks without liability to You or any third-party claiming rights from or through You.  You hereby acknowledge and agree that DreamWorks’ use of material identical or similar to the Portfolio, or containing features or elements identical or similar to those contained in the Portfolio, shall not obligate DreamWorks to negotiate with You, nor entitle You to any compensation or other entitlement, if DreamWorks determines, in its sole and absolute discretion, that DreamWorks has an independent legal right to use such other material (for example, because such features or elements were not new or novel, were not originated by You, or were or may hereafter be independently created by or submitted to DreamWorks)."

Alan Cook said...

Blue Sky
" Notwithstanding the above, Participant hereby waives any and all rights to any stories, ideas, drawings, opinions, and any other creative materials posted to the Fox site. Participant authorizes Fox to utilize, in any manner it sees fit and for eternity, the materials posted on the site, which shall become the property of Fox. Participant releases Fox from any and all claims or liability (now known or hereafter arising) in connection therewith, and agrees to indemnify Fox in connection therewith pursuant to the terms of Paragraph 3 below. Participant agrees and acknowledges that participation in the Fox site shall not give rise to any confidential, fiduciary, implied-in-fact, implied-in-law, contractual, or other special relationship between Fox and Participant (other than the contractual relationship between Fox and Participant entered into by virtue of Participant's agreement to these Rules of Conduct.)"

Alan Cook said...

Laika
"You grant (or warrant that the owner of the rights to the Transmissions has expressly granted) to LAIKA a non-exclusive, worldwide, perpetual, royalty-free license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, transmit and display those Transmissions and to incorporate the Transmissions into any other works in any form, media or technology now known or developed in the future, and LAIKA may use or disclose those Transmissions for any purpose, including without limitation developing, manufacturing and marketing goods and/or services, and you warrant that all "moral rights" in those Transmissions have been waived. LAIKA will treat Transmissions as non-confidential and non-proprietary; however, LAIKA will handle all personal data provided to LAIKA in the manner provided in LAIKA's Privacy Policy."

JPilot said...

Alan, you are right about standard legal copy from major studios. And legal verbiage is so much tangled spaghetti sometimes. But I would definitely bring the SPE contract to be reviewed by my own lawyer for this little tidbit:

"To the extent that any Submission may not constitute a "work made for hire" or "commissioned work" owned by SPE under applicable law, you hereby irrevocably assign, and agree to assign, to SPE all current and future right, title and interest in any and all such Submissions;"

As Elvis said, "Only fools rush in".

Scott Squires said...

This type of thing is happening a lot now.

Amazon studios has full rights to any script ideas and script submitted even if they don't purchase them. They get an automatic option for a long length of time and have the rights to exploit it as they desire.

Disney ran an invitation to submit ideas for their imagineering group recently. Any submission became their property, regardless if they made any further deals with the submitter.

Some of photo share sites and things like picture services for Twitter have similar clauses that they own the rights to anything you upload. They could take that great photo you took an turn it into a greeting card or a t-shirt and you wouldn't make any money yourself from their sales.

There are also many 'contests' that push people to create spec spots, compositions, posters, etc on their own dime with the chance of 'winning' the contest and being paid (free spec work essentially). But to add insult to injury they retain the rights to all non-winning entries as well.

It will be interesting to see when a landmark case or two happens but as always the companies have far more money to spend on legal fees than most individuals so even if it's not legal how many people are going to be up for spending 10s of thousands or 100s of thousands of dollars to get a judgement that may pay off years from know?

Steven Kaplan said...

As Alan pointed out, and Mark even admitted, this seems to be what has become "boilerplate" and common on applications.

I, without having read this post first, posted the two SPA jobs to the Guild's membership via our Email List and subsequently our Twitter account.

I would not hesitate to engage our lawyer on any matter of Sony attempting to use this language to claim ownership of artist material submitted for review for employment that resulted in profit for the studio. I imagine it would be an incredibly messy case with the burden of proof on the artist to establish ownership of the material.

While I agree that the language needs to change (and I'll be calling said lawyer to see what we can do), I have a feeling we're going to have to see someone harmed by this first before we can see it removed from application contracts.


Steve Kaplan
Organizer
The Animation Guild, Local 839 IATSE
skaplan@animationguild.org

Peter Saumur said...

Very common. I had a fellow student at Animation Mentor apply to the studio and they used his demo reel to solicit work from a client as "what we can do", without hiring him or informing him that this was the case. Since they could potentially profit from hooking work with materials that they "own" (based on the Terms of Submission), it becomes an obvious legal minefield; with the artist getting the short end, as always.

Steven Kaplan said...

Peter, lets be clear here. Are you saying that a friend submitted material to Sony Pictures Animation who then used his material on a demo reel to get work?

Peter Saumur said...

Sorry. I meant a studio, not "the" as in Sony.

Important to check one's entries.

Anonymous said...

The best thing to do is submit a portfolio that uses their own characters, style and storylines. You have no business impressing them with your own intellectual property. It's up to YOU to develop that on your own.

Luc Latulippe said...

I worked in animation from 1990-2000, signing contracts with various studios (Nelvana, Disney, MGM, as well as many smaller ones). I was lucky to know a lawyer friend who helped me go through each one meticulously, helping me understand the complex verbiage in each. While they all stated it was work-for-hire and that this work would be owned by them "throughout the universe in perpetuity" none of them ever stated they owned the contents of your portfolio. I'm appalled that so many studios are now saying this. When did this trend start?

Zek said...

"In the event that You submit Your Portfolio as requested, You hereby acknowledge and agree that You will not receive any compensation for submitting Your Portfolio;"

Then there is the issue of tests, which are done after any portfolio submission.

There's one recent instance I know of where a television studio - one of the above mentioned, but will remain nameless otherwise - that would ask for the standard storyboard test from an applicant: Page or two of script, so many boards after so many days, etc.

Which is all fine and good, until the applicant would be paid $100 afterwards.

Unbeknownst to them, they had just done freelance work for an episode that was either currently in production or slated further down the production pipeline. So not only does the applicant not get the 9 am-to-midnight gig, they also get severely undercut on the freelance wage.

From what I understand, the union has this on record.

online portfolio said...

Yes, I partly agree with some of your pointers. Overall, you are raising your voice for rightful things. Artist must read terms and conditions full with patience prior opting any option.