18 MULTIMEDIA CONTRACTS
Multimedia is an exciting revolution with high stakes for the professional communicator. To define multimedia is like describing Proteus, but the hallmarks include some or all of the following features: (1) the use of more than one medium, such as combining still pictures, text, music, and film or video; (2) digitization of information; (3) delivery using electronic media, such as DVD, computer networks, the Internet, or by innovations in existing media, such as cable television; and (4) interactivity, which allows the end user to interact with the material in a variety of ways, such as choosing different viewing sequences or ordering additional products.
The digital emphasis of modern multimedia, and the rapid evolution of its various delivery systems, suggests that multimedia works are themselves extremely adaptable. Digital works suffer no loss of quality from one generation to the next. In addition, carrier media often change or become obsolete. In the realm of physical media, magnetic storage like floppy and Zip discs were dominant through the 80s and early 90s, but were quickly eclipsed by high-capacity optical media such as the CD-ROM, whose costs plummeted in the mid 1990s. Later, the even more capacious Digital Versatile Disc (DVD) supplanted the then-ubiquitous CD-ROM. Modern artists are likely familiar with flash-memory based devices that allow content to be deleted and added at any time. Such memory is at the heart of keychainsized “thumb-drives,” which can hold as much data as a DVD, yet require nothing more than a USB port to interface with any Macintosh, Window, or UNIX-based computer.
Indeed, the increasing popularity of highspeed Internet connections, permitting direct transmission of data between distant computers, renders the use of any physical media to be almost quaint. The Internet may be used via hardwired connections, high-speed WiFi networks, or high-speed wireless networks accessible using the latest generation of smartphones. The Internet facilitates direct peer-to-peer transmission, but the proliferation of user-generated content sites such as YouTube also allows artists to broadcast their creative expression to entire communities of Internet users diligent enough to search the site’s archives. As a whole, systems based on the Internet allow multimedia works to effortlessly traverse national boundaries, thereby implicating the laws of many nations. In this increasingly interconnected and complicated world, a knowledge of American law may not be sufficient to understand how multimedia affects, or is affected by, the legal orders it may inhabit.
The artist may play a number of roles in the creation of a multimedia work. The most likely is the creation of visuals to be incorporated into the overall work. So the artist becomes one of many contributors. For example, the artist contributing visuals may be joined by an author who writes text, a videographer who creates video footage, famous people or experts or actors who are interviewed or narrate, composers and performers who supply music, and software or Web designers who develop interfaces and regulate the flow of the work. Researchers may locate existing or stock film clips, photographs, and music. Many decisions have to be made whether to incorporate existing materials or commission new work.
While the artist may be most likely to contribute visuals, which raises the question of the terms and fees, the artist with a larger vision may want to be the producer of the entire multimedia work. The tremendous power of modern software tools enables any talented artist to independently produce sophisticated works. However, with such power comes a veritable minefield of potential liabilities and legal responsibilities. The artist seeking to be a producer should keep in mind that, at one conference discussing multimedia and the law, the attorneys in attendance responded with delight as speaker after speaker said that the evolution of multimedia will prove “a full employment act for attorneys.” The artist who wants to produce would be well advised to be mindful of the potential legal complexities inherent in producing multimedia work, and seek appropriate legal assistance from an attorney knowledgeable in this developing area. One reason why attorneys can look forward to so much additional employment is that each multimedia work is likely to require a large number of permissions.
Rights and Pricing
If an artist is approached by a multimedia producer to create art for a multimedia work, the issues that arise are similar to those already discussed in chapter 15. If new work is to be created, the assignment must be carefully described, due dates given, cancellation fees specified, the right to do revisions assured for the artist, and so on. If an existing work is being licensed for stock usage, the scope of rights must be carefully delineated. The forms at the end of chapter 15 can certainly be used for multimedia as well as other uses.
Several factors make multimedia rather unique. One factor is the interdependence of so many different art forms in the building of the final work. Another factor is best expressed by terms like “interactivity” and “nonlinearity,” which mean that the end user may determine the sequence, timing, and repetitions of the work. To complicate this factor further, concepts such as “scalability” or “manipulability” suggest how images can be changed in size and modified by the end user or consumer who is interacting with the work. This makes certain traditional pricing concepts based on size, placement, or number of insertions difficult to apply or even irrelevant in the multimedia context.
Yet another factor is the inchoate state of multimedia. On the level of large companies, computer and multimedia companies are striving to secure the content, the raw material, for multimedia from traditional entertainment and publishing companies. This is not so easy to do, because the traditional companies are uncertain of the ultimate multimedia use and market potential of the properties that they own (such as movies, books, and photography). This same ambivalence is played out on the micro-level when an artist is approached to contribute to a multimedia work. What will the ultimate use be of this work? The very revolution that makes multimedia exciting also causes it to be constantly in flux, always subject to newer turns in the technology of creation, storage, and delivery of information.
How can the artist decide what to charge if the ultimate use cannot be determined? What if DVD-ROM is replaced by a newer storage medium? And, as modern trends indicate, computers continue to gain ascendency over cable television networks as information providers. How will usage be measured and the artist paid?
Multimedia producers are likely to demand work-for-hire contracts. They will argue that the art is simply one part of a larger work, and that the artist cannot limit the use of the larger work by holding back rights. But if the artist does work for hire, especially in the digital age, more and more stock material will accumulate in the hands of large producers. The negative effect of this could harm the individual artist and centralize the control and ownership of imagery in large corporate entities.
The artist should certainly seek to negotiate out of work-for-hire. The transfer of rights should be limited to known delivery media, which are specifically enumerated. Payment should be a fee, which may also be treated as an advance against a royalty based on total distribution. For example, the sale of CD-ROMs is certainly a basis for royalties, like the royalties paid to artists for book sales or licensing. The amount of such royalties should be reasonable in view of the economics of the overall distribution arrangement (such as how much the producer receives from its distributors, overhead costs, unit production costs, the proportion that the artist’s contribution bears to the total creativity in the multimedia work, etc.). Needless to say, it may be difficult for the artist to determine these factors with exactitude, but the concept should be to share in the overall success of the venture.
Of course, the artist does not want to lose the possibility of participating in an exciting project by being too rigid. It is so early in terms of multimedia that industry standards are not yet in place, although guides like Pricing and Ethical Guidelines (Graphic Artists Guild) and Pricing Photography (Allworth Press) will eventually cover whatever pricing structures do emerge. However, the artist who wants to participate might show a willingness to learn about the fine points of multimedia. What is the product? Who will contribute to it? Who will its audience be? How will it be delivered to that audience? Through this process, the artist will become a more informed participant and feel more comfortable dealing with the issues of rights and pricing.
The producer who cannot obtain work for hire may seek some kind of joint ownership of the copyright in the art. The reason for this is that multimedia works, which by their nature incorporate many elements, are likely to meet the definition under the copyright law for a joint work. While joint work has the drawbacks discussed in chapter 4 for the producer, joint work also has drawbacks for the artist who basically loses control over the usage of the work. Although the artist has a right to share in profits, such profits may be difficult and expensive to prove.
The artist should seek to use a contract like those appearing in chapter 15. These contracts, when properly completed, resolve rights issues. In addition, the very process of negotiating the issues raised by the contracts will reveal points of dispute that must be resolved for the collaboration to be a success. For the artist who feels that he or she must do work for hire, perhaps because of the nature of a particular project and the payment of an unusually large fee, it is still possible to limit the usage of the work by contract. In such a situation, the producer would own the copyright but the contract could require additional payments if certain usage boundaries were exceeded.
Alteration of the art is a special consideration with multimedia works, simply because the digital nature of the work lends itself to modification. The artist must be satisfied that any changes to the work will either be made by or acceptable to the artist. This includes using parts of the art, using the art to form part of other images or using the art in a transformed image (which, as discussed in chapter 6, is quite possible in the digital environment).
The Artist as Producer
The artist who seeks to move into a new creative role as a producer of multimedia will find challenges both in the creation of the work and in its distribution. The artist/producer must assemble all the different pieces that are combined to make the multimedia work. The complicated task of handling permissions may involve negotiating with other artists. How can fair boundaries be established that both give the artist/producer the rights necessary to exploit the work and yet do not take so much of the rights as to exploit the artist?
The artist/producer will also have to contemplate how the multimedia work will reach its audience and how the artist/producer will be compensated. For example, the artist/producer might be hired by a larger company to create a particular work to be added to that company’s multimedia line. Or the artist/producer might create the work independently and then seek distribution. Such distribution might be another company that specializes in reaching the outlets that in turn sell to the consumer, or it might be by sales reps employed or commissioned by the artist/producer to reach the market.
Whenever an artist contracts with a larger entity for distribution, issues arise with respect to the geographic extent of the distribution, the duration of the distribution agreement, how payments are calculated, the time when payments are made, the right to accountings, termination, and related issues. These same issues apply to multimedia, although the nature of the actual distribution channels may change with time. A review of the types of issues that arise between an artist and gallery, an artist and publisher, or an artist and television station would offer a good framework in which to approach the distribution contracts that an artist/producer is likely to encounter (see chapters 14, 16, and 17). To focus precisely on multimedia, the artist/producer will want to turn to one of the in-depth informational resources discussed later in this chapter.
Permissions
The artist/producer is likely to find it necessary to obtain licenses from the owners of copyrights in photographs, illustrations, designs, paintings, music, sound recordings, video, and film—all for a single work of multimedia. Each of these constituent parts may require releases from models, actors, performers, and directors, and perhaps involve union agreements (such as with SAG or AFTRA). Obtaining the materials may also raise issues pertaining to trademarks, unfair competition, trade secrets, and libel as discussed in chapter 9.
The complexity of these permissions may exceed what would be expected in the visual arts. For example, music can require obtaining permissions from different sources. This might involve mechanical rights, which would include the rights to make copies or record music; synchronization rights, which would allow presenting the music with images; performance rights, which would allow presenting the song publicly; and perhaps other rights such as sheet music rights.
While a permission form like the one on page 53 can be modified, the artist/producer will really need a battery of permission forms to apply to a variety of different types of material to be incorporated. No wonder lawyers are so delighted with multimedia and its promise as a full employment act for lawyers.
An Unfolding Drama
Multimedia is an unfolding drama. It offers tools of heretofore unimagined power to the creator; yet it also attracts concentrations of capital that make for highly disparate bargaining strengths between creators, producers, and distributors. The creative and technological challenges require great ingenuity, but so do the business challenges. If the struggles of the past have taught us anything at all, it is certainly that creators must be fairly compensated if they are to thrive and contribute to the dynamism that makes industries grow—including the ever so promising industry of multimedia.