Artist Contracts and Stonemaier Games

17 September 2018 | 31 Comments

Stonemaier Games would not be where it is today were it not for the the artists who have brought out games to life.

Beth Sobel, Jacqui Davis, Jakub Rozalski, Mr Cuddington…and that’s just the tip of the iceberg. We’ve contracted dozens of artists for illustrations and sculpts big and small, and I’m fortunate to have had great experiences with the vast majority of them.

On the heels of my recent legal-themed articles about third-party accessories and game designers, a few people have asked me about artist negotiations and contracts. So that’s today’s topic! I’ll talk a little bit about the process, and then I’ll dive deep into our standard artist contract.

The Process

Here’s a rough summary of how I execute the initial process/negotiations with artists:

  1. I discuss the project with the artist to gauge their interest and availability. I try to provide a rough estimate as to the scope of the work.
  2. I typically request one or two illustrations specific to the game, just to make sure we’re on the same page. I prepay for these samples, and there is no further commitment in place at this time.
  3. If we decide to proceed, I share the cost ranges I’m open to considering for each type of illustration, again emphasizing the number of illustrations. If you’re paying an artist for several months’ worth of work, that is often invaluable to them, as that’s easier for them than finding a new project every week.
  4. If we’re both ready to move forward, I put together the contract and send it to them to review.

The Contract

As with our other contracts, I like to keep our artist agreement short, sweet, and written in plain language. My intent is to protect both parties and to make sure we’re on the same page. Below I’ve pasted our exact artist contract template with explanatory commentary by me in italics.

This Agreement is made as between Stonemaier LLC (“Stonemaier”) and X (“Artist”). It replaces any previous agreement by these parties.

  1. Grant of License
    • Stonemaier is the owner of all rights to X (the “Product”), which includes all illustrations created specifically for the game. This is a sticking point for some artists, and I respect that. However, if I’m paying someone to create something, they are the creator of that thing, but I am the owner of it. If you pay someone to build your house, you own the house, right? I haven’t always had this phrase in our contracts, but in almost all instances where it’s missing, it’s caused quite a bit of frustration.
    • License Grant. Beginning no earlier than the official announcement of the game, Stonemaier grants to the Artist the limited right of usage as it relates to the Product for self-promotion, personal display, and custom prints. Apart from these rights, this contract represents a general grant of use to Stonemaier. I am more than happy for our artists to showcase their art and even sell prints of it. The key point here is timing–we don’t want the game spoiled before we’ve announced it.
    • The duration of use of the Product for Stonemaier is indefinite and extends across all forms of media (print and digital) and all geographic regions.
    • Ownership and Validity. Licensee acknowledges that Stonemaier is the sole and exclusive owner of the entire right, title, and interest (including all accompanying goodwill) in and to the Products. Licensee agrees not to attack the validity of any of the Products at any time.
  2. Payment and expenses
    • Invoices: Stonemaier agrees to pay all invoices related to finished work upon Artist’s request. This is basically saying to the artist, “Whenever you ask me to pay you, I’ll pay you right away.” I want our artists to know that we’ll pay them on their schedule, not on ours. Usually this means the artist weights until big batches of art are complete, but sometimes an artist needs part of the payment right away, and as long as it aligns with completed work, I’m happy to pay them immediately.
    • Rate: Stonemaier will pay the Artist $X per standard illustration. Other illustration types are negotiable. A “standard illustration” can vary from project to project (usually it’s cards), so often this section can be longer. Occasionally we’ll offer an Artist a royalty, but our margins are already very tight, so that’s difficult.
    • Revisions: Artist agrees to up to 2 stages of revision per illustration. Beyond that, Stonemaier is subject to additional fees. No additional fees shall be billed, however, for changes required to bring final artwork up to original specifications. Stonemaier may have other Artists perform the revisions if necessary. This section protects both parties. On my side, I want to ensure that every illustration is perfect, and sometimes that means multiple revisions. Also, if I ask an artist to illustrate a cat and they instead illustrate a dog, that’s on them to fix. On their side, I want to make sure they’re protected against the potential of an ongoing series of revisions. 
    • Art Book: Stonemaier will have the first right of refusal to publish an art book for the Product, paying a 10% royalty on revenue for the book to the Artist. It’s very rare that we would create an art book for a game, but it’s possible. Even though we have the rights to the art per this contract, I feel that it’s fair to compensate the artist above and beyond the initial payment if we create something like this that solely focuses on their art. I think it’s most likely that we would combine the work of several artists into one book.
    • Derivative Works: Stonemaier will pay the Artist 5% of all revenue generated by non-board game uses of the art (movies, TV shows, etc.). This does not include digital ports of the board game. This is even more unlikely than the art book, but you never know.
  3. Infringement
    • Artist will defend, indemnify, and hold Stonemaier harmless from and against all loss, liability, claims, suits, actions, proceedings, judgments, awards, damages and expenses (including attorneys’ fees) that they may incur by reason of the Artist’s process and completed works. Stonemaier holds the Artist in good faith that their illustrations are original and are consistent with copyright law.
    • Governing Law. Any dispute arising under or in connection with this Agreement will be governed by the law of the State of Missouri and be resolved in the state or federal courts of Missouri.

***

Like all things I do, this is a work in progress. It’s evolved quite a bit over time. So if you have any thoughts or questions, I’d love to hear them in the comments.

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31 Comments on “Artist Contracts and Stonemaier Games

  1. Hi,
    Thanks again for the share. I work on a lot of agreements for me as a designer, for me and my co designer and for the publishers I localize for. Trying to find a happy medium that covers the basics but protects both parties in the best and utmost fair way is my goal there.

    So I read this with much interest and think you have a solid looking framework set up for it.
    You also do have “artbooks” and “TV shows” and such, I would suggest merchandise there too. That is the most logical next step with games usually… Mugs, shirts, maybe custom made inserts… (hahaha, unsolicited advice ;-) Sorry!!)

    1. That’s a good point! The contract does cover those types of things, just not specifically–that’s one of the reasons for the line about how we own all rights to the product, including the art (however we choose to use it).

  2. How is the art book royalty clause intended to work in the scenario where multiple artists are featured in the same book? Five artists would result in 50% of the revenue (split five ways) going to royalties, at least on a straightforward reading of the text.

  3. Hey Jamey, Another perfectly timed post as I’ve been dragging my feet on getting an official agreement signed between me and my artist for a long time now. My case is a little different as we’ve already been working together for around 2 years and most of the money has changed hands already. I took a huge risk doing it this way, but it hasn’t bitten me so far :) (Knock on anything and everything wooden in the vicinity.)

    I noticed you didn’t talk much about deadlines (as far as I could tell). Is that something you don’t really worry about? Have you had issues with artists taking a long time to produce work? I guess the don’t get paid until the work is done helps some, but curious what you do on top of that.

    Thanks again for all that you do.

    Raymond

    1. Raymond: That’s a good observation. I haven’t really figured out how to put deadlines in the contract, as it seems like they’re difficult to enforce. Like, if the contracts says all art must be completed in the next 3 months, what can I really do if it’s late? I’ll still want to use the art I have, and I may just need to add another artist. Also, on the other side, what if I keep giving the artist more work–then it’s my fault if they don’t meet the deadlines.

      In that way, I’m not sure what to put in the contract, but if you have any ideas, I’m open to them. I do discuss timelines with the artist by e-mail, so we have that information in writing–I’m just not sure it’s enforceable.

      1. I think there needs to be a deadline as you could have a contract and 4 years later an upset artist finishes the work and contractually you would need to paid them as there was no time limit. You are also missing a termination of contract like you have with game designers.

        DEADLINES AND COMPLETION
        Upon receipt of the Client’s specifications the Freelancer agrees to complete the Work by __ of ____, ____, unless otherwise agreed in writing.

        Final work shall be emailed to the client.

        TERMINATION OF CONTRACT
        The Freelancer or Client can terminate the Work at any time for any reason.

        If the Client terminates the Work the Client will pay the Freelancer for any pieces of completed Work delivered. If the Freelancer terminates the Work the Freelancer will refund the balance of deposits, if any, back to the Client for Work not yet completed.

          1. and “unless otherwise agreed in writing” allows for flexible deadlines. The artist just emails you, “I need an extra week”, and you reply, “That’s fine.” You could probably word the deadline section better.

      2. I agree with not knowing how to enforce deadlines. I struggle with the same thing. I think discussing timelines in emails while keeping a paper trail is a good solution – at least as far as I can think of. I’d be interested in hearing others thoughts on this as well.

        1. One way to enforce deadlines without using the “stick”… is to use the “carrot”. You can offer a slight premium, bonus, or close out incentive that if the final work is completed by X, that they receive more. So basically you set it up to say I lm paying X if you deliver my September 1st. Y by October 1st, and Z if after October 1st. Then you just put in a condition that says if you fail to provide a response to any requested communication or cause delays of revisions etc that their deadline extends proportionally for the bonus.

          You’ll tend to find when someone is prioritizing “what to work on today”… the one with a ticking bonus clock tends to get the priority.

          This does NOT have to be a lot and may be 5-10% more than their quoted rate… so they said it’s $5,000 for the scope… you offer $5,500 for the hard deadline, $5,000 for the secondary date, and $4,000 for anything after. (Or whatever numbers amounts and dates work for you). Many people do not expect to be offered anything OVER their quotes and are used to negotiating DOWN. So if timing of delivery is important. This can be a real nice incentive. Versus the “do it or else we are off and I sue you or whatever” model. My two cents

          1. That’s a great point, Joel. I have a completion bonus in one of my artist contracts, but it isn’t associated with a date (just because the work itself is in flux). But for projects with a very set, specific amount of work, I like that method.

          2. Well even a scope in flux can have timing bonuses. As pieces of the scope are delivered, those sub-elements would have dates. The premium can be as simple as paying 5-10% more on each little piece based on time… in other words.
            Rate A (10% above quote) for EARLY DELIVERY
            Rate B (at Quote) for ON TIME DELIVERY
            Rate C (10-15% below Quote) for LATE DELIVERY.

            Then if you’re asking for one piece at a time… if it’s $300 for two weeks out promised. Ya already agreed to the ABC rate model in main contract. So each scope comes over with a simple rate amount as agreed.
            A$350 – by 1 week our date here
            B$300 – by 2 week scoped date here
            B$225 – after scoped date

            Now there is an element of trust or else some very FIRM definitions of what constitutes a delay on your part so an unscrupulous buyer of the work wouldn’t stall out on purpose to push them late and discounted.

            But in general this puts the motivation on the deliverer. They make a choice and if you’re deal is the only one with a bonus based on TIME… you tend to find it at the top of the to-do list when they sit down to the art table / PC.

  4. Hi Jamey, with the RATE section I would add in “illustrations that match the skill level of the artist’s previous illustrations (X, Y, Z).” Most artists are good, but a bad one might rush 10 pieces to meet the deadline and they are of poor quality.

    On Ownership, I never full understood ownership of “all accompanying goodwill”. It’s very legalese. Do you know what it means?

    1. I like that! Here’s how Investopedia describes goodwill: “Goodwill is an intangible asset that arises when one company purchases another for a premium value. The value of a company’s brand name, solid customer base, good customer relations, good employee relations ,and any patents or proprietary technology represent goodwill.”

  5. Not to provide unsolicited advice, and certainly not legal advice, but I might recommend including specific language that it is a work-for-hire agreement. For example, “Artist is an independent contractor. This work is considered work-for-hire under the United States Copyright Act of 1976.”

  6. Great info, as always! I have found many artists will not enter into a contract where they do not own the art, but it does always complicate things. I think you’re right that it’s too important to let that one go.

    Mr. Fitzsimons and Raymond make a good point — in the publisher/artist relationship I haven’t mastered how to make sure I get the artwork done in a timely manner and in chunks rather than all at once at the end. For example, the contract says it needs to be delivered by Jan 1st, but I get everything March 1st. Or the contract says it needs to be delivered by Jan 1st and I get it all delivered in one big chunk on December 31st but I need to ask them for a bunch of revisions.

    These delays are so costly and can clog up the release pipeline. How do you make sure it doesn’t happen in the first place and/or penalize the artist if it does happen? If anyone has suggestions, I’d love to hear ’em.

    1. That’s a good question, Brian, and I wish I knew the answer! It’s worked best for me when I’m able to get a several-month block of time from the artist when my project is the only thing they’re working on (and they’re getting paid along the way upon request when they complete work). That’s pretty rare, though. It’s more common for art to drag on for quite some time, which has worked out for me almost solely because I have artists start making the art so early in the process.

      1. I do discuss the schedule and milestones with the artist, but it often ends up in flux throughout the project, so I like to leave those conversations in email instead of setting them in stone in the contract.

        1. Jamey, my reply was mainly aimed at Brians original question :-) But you might have some good experiences to share on simple scheduling/milestones? Because I totally agree that plans often don’t survive first contact with reality.

          1. I just try to discuss with the artist over email about what is fair and reasonable. If I have a hard deadline, I try to let them know as early as possible so they can tell me if I need to bring on another artist to make it happen.

  7. Thank you for sharing the contract text, as well as your comments about the intent. It is very helpful. I have two questions. The first is : how would you handle use of a piece of already existing art (e.g. posted on by the artist online)? The second is : how do you manage expectations for timely delivery of art pieces after a contract is signed (do you address time limits for original or revision work, or time extensions)?

    1. Ah, I see now my second question was discussed above by you and A. Gerald Fitzsimons. It is hard to cover everything, but some kind of general and fair termination clause seems like a good thing to consider.

    2. Philip: That’s a good question about existing art. Since it wasn’t created specifically for the project, I would probably say that the artist retains ownership over that illustration, and you’re just paying for the rights to use it in your game.

  8. I know that this is a bit off-topic, but I followed links in this post to Michael Iachini’s website, “The Online Dungeon Master,” where I left this comment about art I’m seeking. Unfortunately Michael couldn’t help, so I’m hoping someone here might.

    I’m seeking a game illustrator who does art in what I call the “primitive” or “naive” style—but I’m not at all sure that is the right term. The art I seek has whimsy and humor.

    Anyway, I’ve tried mightily but in vain to contact Marie Cardouat, illustrator of Dixit, via messages at BGG, Facebook, her blog website (I even wrote a second time in French), and publishers of games she illustrated.

    My queendom for her direct email address! Any suggestions re that? Or any artists with similar style?

    1. Dorothy: I think you’re on the right path by finding games with that style and contacting the artists directly. If an artist doesn’t respond (especially after trying multiple ways), it raises a big red flag about their communication skills–it’s probably foretelling issues you might experience later if you work with them.

    2. Dorothy,

      I can’t recommend someone but I can suggest an artist to take a little gamble on if you do such things.

      A young artist posts to the board game design lab Facebook group. I’m impressed by his work and how quick he is. His style is similar to Dixit. How reliable is he? How much does he charge? I don’t know, I only know 2 things about him, that is why I said a nice punt (a calculated risk) to test with 1 or 2 piece.

      If you want I can send you the link for him through your website contact page.

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