D&D 5E Anatomy of a Snafu- D&D Beyond and the Curious Contest

[Snarf Zagyg]

Is it snafu or snarfu? I digress....

The following two threads are probably relevant to this thread, and will explain why I am doing a deep dive on this issue:
Thread about pay in the TTRPG Industry
Thread about D&D Beyond Canceling an Art Competition

I realized today that while many people had discussed these issues as general propositions, I hadn't seen anyone do much actual legwork into ... well, the actual problematic language everyone was so worked up about! So I took it upon myself to see if I could locate the language- the "terms and conditions" that people had issues with. For purposes of discussion, you can find the three things that are being discussed here:
The D&D Beyond Art Contest (the "Art Contest") *click on T&C
The D&D Beyond Style Sweepstakes (the "DDB Sweepstakes") *click on T&C
The Apple Shot on iPhone Challenge (the "Apple Contest") *this goes directly to a pdf on apple's site

Finally, nothing is forever. If the links do not work, these documents are also available as a resource here.

D&D Beyond, Contest Contracts

Snarf Zagyg submitted a new resource: D&D Beyond, Contest Contracts - For Reviewing for a Post For use in understanding a post, and to provide a resource for people looking at contest entries in TTRPGs. Read more about this resource...

www.enworld.org

This post is for fun and for interest only, and because it impacts freelance creatives in the TTRPG industry and is germane to the site. Please remember- do not take take anything in this as gospel or legal advice. In addition, please remember to never, ever, ever take advice (legal or otherwise) from anonymous internet people, Mad Hatters, fictional cartoon characters, or youtube/instagram celebrities. If you ever have a legal question about something in your life, consult with a licensed professional in your area. Advice is usually worth what you've paid for it.

If you've been reading my posts for a while, you know that I can't read. Tragic, really. So for this deep dive into what happened with D&D Beyond, and what it might mean, I knew I had to call in the big guns... and also? Probably someone who could read. I knew that there was only one person I could trust .... Phil Ken Sebben.

Snarf: Hey, Phil. It's Snarf. I need your help on a legal issue.

Phil: Did you kill someone again? Not everyone is a bard, Snarf. Do you know what this means to the firm, the billable hours? I can finally build that lakehouse, and I'll run around naked all day. HA HA! ....dangly parts.

Snarf: No, Phil. I need you to do some pro bono work.

Phil: I don't work for the bone, Snarf.

Snarf: For free. I can't read, remember? I need you to look into something weird for me.

Phil: HA HA! You're illegitimate. I don't work for free.

(the remainder of the ensuing conversation has been elided, primarily because Phil made several unfortunate remarks that do not need to be repeated ... the following is the correspondence sent from Phil, apparently from his contemporaneous notes, which is posted without review, because, again, I can't read. I did request he find out what was up with this, and maybe hazard a guess as to what happened.)

Analysis by Phil Ken Sebben
So I'm looking at the contract, the Art Contest. O. M. G. What is this? Are you trying to make me go blind in my other eye? Who drafted this? It was Harvey, wasn't it? This is terrible. Okay, concentrate. Look, this could not possibly have been drafted by an attorney, right? The Art Contest says it is a ... sweepstakes? Right at the top? That's like, the most fundamental difference you can have! It's not a sweepstakes... and wait, paragraph 12 ... it's choice of law is ... the United States? What? And you can have venue anywhere in the United States? And they don't even bother with subject/verb agreement ("You further waives ..."). This hurts. Ugh, why does Snarf send me this? Why would D&D Beyond's lawyers draft this mess?

Okay, let's see. Ah, yes. They aren't running it or drafting it, are they? They are just the sponsor. They farmed the contest out to ... Gleam? So I'm going to look at the last thing they ran ... the DDB Sweepstakes. Wait- the boilerplate is identical. Exactly identical. Even though the DDB Sweepstakes is a sweepstakes, and the Art Contest is a competition. In fact, the sweepstakes has the exact same language about rights in paragraph 9 even though there is no submission? What is going on here? I need to find out what this Gleam thing is ....
Gleam is an internet company in Australia that runs competitions..... LINK.
"Gleam automatically generates ready-to-publish Terms & Condiditons [sic] for your competition using our globally compliant template, plus relevant information from your campaign setup. This means that your competitions will always have comprehensive and personalised Terms & Conditions without any effort from you."

Oh. Okay. I mean, boilerplate language is one thing, but trusting an app to run sweepstakes and contests and protect your company "without any effort" from the company? I mean... okay! HA HA George Michael has faith!

Now, larger companies will ensure they are protected. Let's look at the Apple Contest Snarf sent me..... oh.... that feels so good. I just get warm tinglies looking at well drafted language like that. That is some carefully curated and edited boilerplate. That is just some bang-on contractual language that has been carefully thought out. Now, let's look at the licenses for the people who submit art in ¶ 1, page 2. All works provide an irrevocable license for one year; winners provide an irrevocable license for the term of copyright. This is incredibly protective of the company (waiver of moral rights, no legal recourse, waiver of class action, requirement to arbitrate cases in California, etc.) and also handles photographers' concerns (non-winning entrants have no license after one year).

But Apple can do that- they aren't going to be using or making creative products (their own photos) that would compete in this sphere- this is just to show how good their cameras are for marketing purposes. I would be more concerned if I was soliciting art that I was using.

Anyway- here's the deal, Snarf. It looks like D&D Beyond has been using a third party provider for their contests and sweepstakes, and they've been using the exact same language that the third party has auto-generated for them. That sounds like a marketing call; I would guess that when there was controversy over the legal language used, this percolated up and someone said, "Wait, wut?" but who knows? Companies are mysterious beasts.

Mysterious, glorious, and very very sexy beasts, Snarf. HA HA! Sir Ben Kingsley playing against type. Phil Ken Sebben out.

*****************************************************************

And there you have it. Based on what Phil said I would just add the following:
1. Boilerplate language is often derided, but ... it's super important.
2. It appears that the T&C for D&D Beyond's contest (the language in the contract that people had an issue with regarding licensing) was auto-generated and has been used repeatedly for all of the sweepstakes and contests.
3. It's possible to have better language (like Apple)- but it's still going to be restrictive and protective of the company.
4. Learn to read. If nothing else, you won't have to listen to Phil Ken Sebben mock you.




EDIT- if this is confusing, it is explained in comment #10.

 

[Blue]

Welp, I learned something.

And my eyes are bleeding.

Fair trade, I guess.

 

[Snarf Zagyg]

Welp, I learned something.

I'll pass that on to Phil. I'm quite sure he will be terribly disappointed.

 

[DemoMonkey]

"And my eyes are bleeding."

That's how you know it's working!

 

[Istbor]

Thanks. Now I have to go listen to Phil telling me to sit There. Not there! THERE!

 

[LordEntrails]

Thanks for this. Seems pretty obvious what happened, marketing did want to or wasn't allowed to use the DDB lawyers because you know, they would actually cost DDB money. And someone said, Gleam will just us the T&C for free, what could go wrong?

Nothing, absolutely nothing

 

[SkidAce]

Situation Normal, All F'd Up.

 

[dragoner]

My lawyer charges $300 an hour, which we have a long term relationship so he would look over something for free, no criticism of the OP, except WotC probably paid less for their gleam boilerplate.

 

[LordEntrails]

My lawyer charges $300 an hour, which we have a long term relationship so he would look over something for free, no criticism of the OP, except WotC probably paid less for their gleam boilerplate.

WotC was not involved. They do not own or control DDB. DDB has a license to publish some WotC IP, but they are a totally independent company.

 

[Snarf Zagyg]

My lawyer charges $300 an hour, which we have a long term relationship so he would look over something for free, no criticism of the OP, except WotC probably paid less for their gleam boilerplate.

After reading your comment (t/y) I realized that perhaps, in my usual desire to make the funny (and get my good friend Phil Ken Sebben some work), I might have buried the lede or made things not completely clear. Some things that might seem obvious to me (which is why I put up the links and source documents) may not pop and be obvious to everyone else; I guess I should have realized that given there is a whole 'nother thread about it. Bad on me! Here's the very brief sketch of what the OP is "about"-


A. Background

1. There are 50 states and a federal government. If you don't live in the US, you may not realize that every ... single ... state ... has a different legal system. Different legislature, different courts, different laws. While there is some degree of homogenization, things that are lawful in one state can be unlawful in another state, and a court in one state would uphold a contract that a court in another state would not uphold (for example). In addition, there is a federal government (the US government) which is kind of an "overlay" of different laws, and different courts, with a different legislature.

2. Sweepstakes and contests have always caused problems. Sweepstakes (enter to win a free car!) and contests (the best 10 photos will win a prize) have been a source of problems throughout US history for two primary reasons- first is gambling. Because there is very little to distinguish between a sweepstake and a lottery (or other forms of gambling, like the 'numbers racket'), and because gambling has long been unlawful in the United States, there are a lot of laws to make sure that there's no gambling going on. In addition, sweepstakes and contests are a tradition point of fraud- promising prizes that don't exist, used to lure shoppers into store and then the "prize" will go to the store manager, or contests run to solicit entry fees ("We want to see how good your art is!") with no actual contest.

3. States and the federal government have a multitude of ways of regulating sweepstakes and contests. Legislatures are reactionary; something bad happens, and "there has to be a law!" So as all of this gambling and fraud was publicized for decades and decades, laws were passed- and they are different in different states, and different for the federal government (which I will ignore from now on, other than to say that the FTC concerns itself with these issues). So in one state, a person might have promised a huge prize that didn't exist, and that state passed a law requiring sweepstakes organizers to post a bond. In another state, they might have specific rules about contests & sweepstakes involving alcohol. Other states might have barred the "get you in the door" sweepstakes (no requirement to visit a store). And so on.

4. The different states are really different. But it doesn't end there- in addition to the specific laws on sweepstakes and contests, the state will have more general laws that might apply- and these laws vary from state to state. Finally, if there are terms and conditions- which will be a unilateral contract (the sponsor offers a prize, the participant accepts the offer by entering the contest), the contract will be construed by state laws ... which are different.

5. If it's that hard, how can companies run these things? Well, reputable companies protect themselves through a contract. And back in the old days, it wasn't that hard. A company would start small, and run some type of thing, and no one would care if they weren't obeying every single rule. As they grew, and became more of a target, they were still located within a single state- so they didn't have to worry about all of the states. If they continued to get big, and were operating around the US, then they were big enough to hire fancy pants attorneys to make sure they were covered if they wanted to run a nationwide sweepstakes. But you can immediately see the problem- it's not the old days. Today, with the internet, even the smallest businesses are selling across the US (and sometimes around the world). And the contests and sweepstakes? Yeah, those will have a much bigger reach.


B. The D&D Beyond Controversy

1. D&D Beyond was pilloried for acquiring the rights to all the art entries in a contest.
If you look back at the thread, and the D&D Beyond controversy, you see that the issue (as Morrus put it in the OP) was that "Competitions where the company in question acquires rights to all entries are generally frowned upon[.]" As presented, this was one of those, "Yay, labor" moments. Which I can totally get- I literally just wrote a long post about how people should hold companies more accountable for their labor practices. And it sounds terrible, right? "Evil derpcorp outsourcing all their art for a pittance; working artists get screwed again."

...And yet, I didn't quite understand it. Because America is a litigious place, and companies need to protect themselves. For example, any service you use that allows you to upload your photos will have very expansive licensing rights for those photos- you are welcome to look at facebook/instagram, google photos, or ... any single place. Part of that makes sense- if you upload a photo to facebook that you made, you have the copyright in that. If facebook shares that photo to someone else, that can be an issue for them (because facebook is a monetized platform). Multiple the number of users on facebook ... and you get the idea. On the other hand, there are very real concerns about the scope of some of those licenses and what companies might be doing.

But this didn't make sense. This looked like it was a simple fan contest. I think there are very good arguments that companies should not be running these types of contests at all, but ... I think it was intended to solicit non-professional work for fun, not for any sinister purpose, and that the use of standard licensing language did not make it evil. And yet, no one had posted the language they used ... or had gotten hold of Phil Ken Sebben.

2. D&D Beyond was using marketing software to generate the contest and the terms & conditions (T&C).

If you look at the actual T&C for the contest that is linked to in the OP, something pops out immediately- it's not ... quite ... right. It's apparent in all sorts of ways, but I'll use a single example. Remember that whole spiel about protecting companies and litigation in the U.S.? As soon as you look at this document, you'll see paragraph 12- which is "Disputes." Notice that it refers to the United States, twice. Both that the laws of the United States are used, and that an action will be brought in the United States. That's profoundly weird. I'm not going to go into why- but it is super weird (and you can look at the Apple one I posted to see what a normal one would look like).

So I looked at the last thing that was run by D&D Beyond- it wasn't a contest like the art contest, it was a sweepstakes. The T&C are linked to as well. And you know what? It was the exact same. They were using the same weird language for both. Even though sweepstakes and contests are not the same thing, and come with different issues.

Which meant that this wasn't a case of evil derpcorp stealing art, but something far more interesting and weird. And that's where we get to Gleam.

3. Gleam makes all your marketing dreams come true.
Gleam is the company, based in Australia, that runs competitions (contests & sweepstakes, so I don't have to keep writing that). They have a gorgeous website, and if I was into marketing, I would totally buy what they are selling. You can integrate with social media, I'm sure that there are synergies involved, and there might even be a pivot to video somewhere. I am starting to make jokes again- but it really does look like some cool marketing software that would help drive engagement and (holy grail time) get more information about the users. Cool cool.

However ... Gleam lets companies (like D&D Beyond) run competitions on social media and have those embedded in your website in under three minutes. And part of doing that is that they will create the T&C for you through a template. That's right- no one made the T&C. It was auto-generated. Which is why ... it's weird.


4. What really happened?

I don't know. But if I had to hazard a guess, I would say that people in marketing in D&D Beyond (and/or people running the social media) found this great new way to drive engagement. 'Cuz it is! And no one cared about the T&C, which was auto-generated, until it became a controversy. Once it became a "thing" someone higher up the food chain (D&D Beyond was owned by Curse, but apparently Fandom bought them?) probably looked at the T&C and said, "Woah now. Let's take a big step back." But it wasn't really about the art, ever. Sad as it is to say, I am quite sure almost no thought was given to the contest itself. They had a successful sweepstakes, and then someone said, "Hey, let's celebrate some fan art ... and drive engagement!"

Given that it likely really isn't about the art, a limited-time irrevocable license (one year from the competition) along with a more carefully-crafted real T&C would likely alleviate the issues. But who knows? That's up to them.


5. Is there any big picture takeaway?

Kinda. I'm not really into the whole "social media" thing (or the whole "social" thing) but I do know that there are a lot of competitions on the internet, and there seem to be more and more of them. If I had to hazard a guess, I'd say that there are competitions that don't even bother with weird T&C, or aren't in compliance with something, somewhere, and may be doing the things that these rules are meant to prevent (fraud, etc.). Be careful out there, and look to reputable places.