D&D 5E D&D Beyond Cancels Competition

D&D Beyond has been running an art contest which asked creators to enter D&D-themed portrait frame. DDB got to use any or all of the entries, while the winner and some runners up received some digital content as a prize.

There was a backlash -- and DDB has cancelled the contest.

Thank you to all of our community for sharing your comments and concerns regarding our anniversary Frame Design Contest.

While we wanted to celebrate fan art as a part of our upcoming anniversary, it's clear that our community disagrees with the way we approached it. We've heard your feedback, and will be pulling the contest.

We will also strive to do better as we continue to look for ways to showcase the passion and creativity of our fellow D&D players and fans in the future. Our team will be taking this as a learning moment, and as encouragement to further educate ourselves in this pursuit.

Your feedback is absolutely instrumental to us, and we are always happy to listen and grow in response to our community's needs and concerns. Thank you all again for giving us the opportunity to review this event, and take the appropriate action.

The company went on to say:

Members of our community raised concerns about the contest’s impact on artists and designers, and the implications of running a contest to create art where only some entrants would receive a prize, and that the prize was exclusively digital material on D&D Beyond. Issues were similarly raised with regards to the contest terms and conditions. Though the entrants would all retain ownership of their design to use in any way they saw fit, including selling, printing, or reproducing, it also granted D&D Beyond rights to use submitted designs in the future. We have listened to these concerns, and in response closed the competition. We’ll be looking at ways we can better uplift our community, while also doing fun community events, in the future.

Competitions where the company in question acquires rights to all entries are generally frowned upon (unless you're WotC).

 

[J.Quondam]

1. There are scams out there; contests that are run by fly-by-night organizations, some that require "entry fees" (ahem "processing fees" for art) or others that intend to use your art (sell it for stock photography, for example, or keep it for their own use). That is morally wrong and needs to be called out. I think @J.Quondam mentioned that this happened to him. Unfortunately, scams happen all the time and are not limited to contests. Still, watch out.

I just want to clarify that I don't believe what happened to me was a scam, or at least not an intentional one. My experience involved a well-regarded company in the relevant industry; and I really don't think they set out, mustaches atwirl, to steal anyone's labor. I suspect they simply didn't grasp, at the time, that using the losing contest entries as they did, per "the letter" of the rules, wasn't terribly ethical. I mean, I myself didn't really think anything was wrong with it at the time, either!

Just for the record, near as I can tell, they haven't run another contest like that since the one I entered way back when, so I suspect they've sorted out the issue for the better - quite likely for the exact reasons you've already cited: too much expense and legal risk. And that's fine by me! They're a good company that produces great products and maintains a loyal customer base, even without competitions.

 

[Snarf Zagyg]

I just want to clarify that I don't believe what happened to me was a scam, or at least not an intentional one. My experience involved a well-regarded company in the relevant industry; and I really don't think they set out, mustaches atwirl, to steal anyone's labor. I suspect they simply didn't grasp, at the time, that using the losing contest entries as they did, per "the letter" of the rules, wasn't terribly ethical. I mean, I myself didn't really think anything was wrong with it at the time, either!

Just for the record, near as I can tell, they haven't run another contest like that since the one I entered way back when, so I suspect they've sorted out the issue for the better - quite likely for the exact reasons you've already cited: too much expense and legal risk. And that's fine by me! They're a good company that produces great products and maintains a loyal customer base, even without competitions.

Fair enough! Unfortunately, there are a lot of scams out there. It's seems endemic today in all areas of life, and contests are certainly not immune. But most of the scams tend to be of the "entry fee / processing fee" type.

I do think that there has been a change in perception regarding fan content contests- it used to be that people were often pleased just to see their entry used, while that is no longer the case.

I tend to have a somewhat jaundiced view of all of this because I see what is most likely to happen; there are better and cheaper ways to get buzz and engagement than fan competitions - even simple fan giveaways tend to be lower-cost, and have less downside. So I think that we will just see them disappear.

That's not a definite- perhaps there are some clever clogs out there who can wordsmith something that protects companies, protects artists, and doesn't run afoul of the myriad rules regarding contracts and contests in the different states, but I'm not holding my breath, and I'm certainly not taking the word of people who say "Whatever, it's easy, just do it."

 

[Xetheral]

I assume that you are familiar with required legal boilerplate (and the reasons for it), have done a survey of 50 states, other US jurisdictions, and federal law, and can now confidently state that all you need is what you have said?

Note that legal boilerplate (i.e. the same contractual terms in similar contracts across an industry) arises to protect the attorneys, rather than to protect the company. There are any number of ways contest terms might be structured to adequately protect the company's interest (and no, you won't get attorneys listing examples here, because that would be providing legal advice), but it's in the attorneys' interest to use wording that someone else has used before--if the language ends up being ineffective at protecting the company, using "standard" language makes it easier for the attorneys to escape blame. That doesn't mean that the boilerplate language is any good or even useful--often it's just an exact copy of whatever language was used first, plus whatever extra provisions have been added over time as later attorneys try to add more and more protections for their clients.

Using the boilerplate is certainly not required. A company that wants to can retain an attorney (or use in-house counsel) to develop customized contest language that strikes the company's preferred balance between protecting themselves and respecting the rights of the entrants. A company that chooses to go to that effort (and expense) won't use the boilerplate, because the boilerplate isn't trying to strike any sort of balance at all.

2. These competitions, for larger companies, are always loss leaders. As @PsyzhranV2 has correctly pointed out (and as I had a whole thread devoted to), creatives in the TTRPG industry get paid squat. It is cheaper for companies to pay creatives to create to spec than to design and run these competitions. The only reason they do it is for the buzz- the marketing, the engagement. When I say this, referring to what I wrote, I am discussing reputable companies, not ones that are running scam competitions. But these aren't profit centers ... far from it.

I'm having a hard time following what you see as the out-of-pocket expenses in running this contest. Using the lopsided boilerplate language minimizes attorney fees (quite possibly to zero, if DDB or its parent has an attorney on staff or if they didn't consult an attorney), they're not likely engaging an outside PR firm for something of this scope, advertising is probably limited to standard social media channels, and the prize (a digital license) has a marginal cost of zero. So as I see it, the total probable out-of-pocket cost to DDB (and/or its parent) is or is close to zero. There are opportunity costs, including staff time and (potentially) lost sales to the contest winner who now doesn't need to buy the product, but that's it.

In exchange for that lack of expenditure, they get immediate commercial use the winning entry and the potential future commercial use of any or all of the non-winning entries. (Even if current management doesn't intend to make use of their license to the non-winning entries, they still have value that future management, a corporate successor, or a bankruptcy trustee can access.) That seems like a much better deal for the company than paying a single artist for a single piece of work.

(Also, you appear to be using the term "spec" in a way I am unfamiliar with. The work produced for the contest is "spec" work because it was made by the artist with the hope of later payment. Contracting a freelance artist for work-for-hire is the opposite of spec work. Maybe there are regional differences in the use of the term?)

3. As has been repeatedly pointed out, and as you keep ignoring, it's not just some "theoretical lawsuit," it's a whole lot of actual lawsuits.

That's a factual claim. Maybe it's true, maybe it isn't, but if you're going to rely on that claim to support your assertion that the boilerplate language is justified by legal risk, it would carry for more weight if you presented data to back it up. The same goes for your claim that such contests are becoming less common.

 

[Maxperson]

Note that legal boilerplate (i.e. the same contractual terms in similar contracts across an industry) arises to protect the attorneys, rather than to protect the company. There are any number of ways contest terms might be structured to adequately protect the company's interest (and no, you won't get attorneys listing examples here, because that would be providing legal advice), but it's in the attorneys' interest to use wording that someone else has used before--if the language ends up being ineffective at protecting the company, using "standard" language makes it easier for the attorneys to escape blame. That doesn't mean that the boilerplate language is any good or even useful--often it's just an exact copy of whatever language was used first, plus whatever extra provisions have been added over time as later attorneys try to add more and more protections for their clients.

"Everyone doing it" is not going to protect an attorney from malpractice. Boilerplate language protects attorneys by standing up in court. By standing up in court, it also protects the client. Protecting the client = protecting the attorney.

It's also often tweaked. You start with boilerplate language and modify it for specific circumstances.

 

[FrozenNorth]

So, you read that entire post, and this was your response?

I assume that you are familiar with required legal boilerplate (and the reasons for it), have done a survey of 50 states, other US jurisdictions, and federal law, and can now confidently state that all you need is what you have said?

And that the lawyers who have put in this language don't know what they are doing, but you do?

Your position is wrong and more than a little unfair. @Vaalingrade, who is likely not a trained lawyer, is not required to provide language that can pass legal muster, just provide an idea of how it could be done.

And it definitely could be done. The whole purpose of the profession of law is to express often complicated ideas in written form, in such a manner that it is consistent with current law.

As to why that may not have been done in this situation, other posters have expressed extremely plausible scenarios:

• Lawyers draft things to protect their clients, here, the company. A lawyer will generally not go out of their way to protect a non-client (and unrepresented party) unless the client asks them to;
• Lawyers (and clients) sometimes use boilerplate. They should try to ensure that the boilerplate is fit for purpose, but they are human too, and sometimes, they make mistakes;
• Lawyers can, and often are, overzealous in protecting their client’s interests. Even if the client doesn’t intend to use the non-winning entries, the lawyer wrote the contract to allow it;
• The PR issues and the industry-specific context (of spec work in the illustration industry) is probably something the lawyer was unaware of;

 

[Xetheral]

"Everyone doing it" is not going to protect an attorney from malpractice. Boilerplate language protects attorneys by standing up in court. By standing up in court, it also protects the client. Protecting the client = protecting the attorney.

It's also often tweaked. You start with boilerplate language and modify it for specific circumstances.

Only a tiny fraction of boilerplate language is ever tested in court. It's not boilerplate because it's been tested, it's boilerplate because it's common enough to have become standard.

 

[Maxperson]

Only a tiny fraction of boilerplate language is ever tested in court. It's not boilerplate because it's been tested, it's boilerplate because it's common enough to have become standard.

There's a reason it becomes standard. And boilerplate gets tested in court on a daily basis. It's in virtually every contract out there.

 

[FrozenNorth]

Note that legal boilerplate (i.e. the same contractual terms in similar contracts across an industry) arises to protect the attorneys, rather than to protect the company. There are any number of ways contest terms might be structured to adequately protect the company's interest (and no, you won't get attorneys listing examples here, because that would be providing legal advice), but it's in the attorneys' interest to use wording that someone else has used before--if the language ends up being ineffective at protecting the company, using "standard" language makes it easier for the attorneys to escape blame. That doesn't mean that the boilerplate language is any good or even useful--often it's just an exact copy of whatever language was used first, plus whatever extra provisions have been added over time as later attorneys try to add more and more protections for their clients.

I'm having a hard time following what you see as the out-of-pocket expenses in running this contest. Using the lopsided boilerplate language minimizes attorney fees (quite possibly to zero, if DDB or its parent has an attorney on staff or if they didn't consult an attorney), they're not likely engaging an outside PR firm for something of this scope, advertising is probably limited to standard social media channels, and the prize (a digital license) has a marginal cost of zero. So as I see it, the total probable out-of-pocket cost to DDB (and/or its parent) is or is close to zero. There are opportunity costs, including staff time and (potentially) lost sales to the contest winner who now doesn't need to buy the product, but that's it.

Quoted for truth. I’ll add that the legal profession (like many others) has grown exceedingly specialized, so even if the terms and conditions had been given to an in-house lawyer (or farmed out to a junior at a law firm), the drafter may have simply used boilerplate because it was outside their specialty.

 

[FrozenNorth]

There's a reason it becomes standard. And boilerplate gets tested in court on a daily basis. It's in virtually every contract out there.

That not even close to being the case. And it is even less the case for the boilerplate language that is being discussed here: transfer of intellectual property rights in the context of a contest.

 

[Scott Christian]

That is a totally valid opinion.

However, you are incorrect in one aspect. "Fan contests" such as this are rapidly dwindling, due to the downside risks of litigation and because they cost more to run.

It's a lot cheaper for a company to get creative work that they want on spec than to run these types of contests.*


*I am sure that there are exceptions, for smaller companies that don't care about the legal issues, but that's neither here nor there.

I agree. But at least offer me this: it depends on the company. You are assuming the company here has the capital to hire creative work. Many many do not. From the restaurant that needs a logo to the purse designer that needs a prototypes to the gaming company that needs artwork. Many do not have the funds.