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).

 

[Snarf Zagyg]

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.

Yes, attorneys don't have to use boilerplate language. But since you seem to be thinking about this issue, why don't you ponder the following:

Unlike many contracts, which are written for a particular jurisdiction, a contest/sweepstakes is a specific form of unilateral contract that comes with all sorts of problems. Like, really bad and known problems. This isn't rocket science (not that anything legal really is).

In addition, they have the particular and unenviable issue, when they are publicized on the internet and/or nationwide of being subject to the vagaries of not just federal law (FTC, baby!) but also all those different states. So you can have a state that has rules allowing unliteral contracts of adhesion to include waivers of the right to sue, and one that doesn't ... and guess what? That's right, you have to write it to the lowest common denominator.

So this gets into ... why boilerplate? I mean, besides the obvious ("Ima write COMES NOW because that's what everyone writes, right?"). Because it is what works. There's a reason that companies have defaulted to variations of the "license," or "use" or even "own it outright," - because that's one way that always works. It's not like this was created out of whole cloth just to screw people- you go with what works.

Now, as I wrote before-

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."

Which is what you just said at great length. It's possible! Anything is possible! But it's not easy. There are ways to get around it (geographic limitations, restrictions), but the easiest way to get around all of this is to just not have these types of competitions.

Again, if you're confident (and maybe you're right), then why not get some pro bono attorneys to canvas the state and federal law on contests (not sweepstakes) and see what language can be used that protects artists? That would be interesting, and far less dogmatic than, "Just make it work. It's easy. Guys at my high school used to do it all the time."

 

[LordEntrails]

(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?)

I believe, and as I understand it, "Spec" is being used here to indicate producing a product to a specific specification.

In this case it's something like, it must be this size, this resolution, contain these elements, be useful for a character portrait frame etc. All as opposed to "submit your art you have created for favorite D&D character" (Which could be any size, any medium, any stlye, any use, etc)

 

[Xetheral]

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.

Courts deal with issues relating to boilerplate language on a daily basis, yes. But it doesn't follow that all boilerplate language is tested in court. Consider the fact that only a tiny fraction of contracts are ever subject to dispute, and only a tiny fraction of those disputes ever go to trial, and its easy to see how a lot of boilerplate language goes untested.

 

[Snarf Zagyg]

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.

That's ... not quite right.

Most language that has been added is in response to a particular holding. For example, one court says that a particular clause in a contract wasn't enforceable, because it wasn't emphasized. So people read that and they start putting that clause in ALL BOLD and require separate initials for that. And that becomes "boilerplate" (standard)- it was added to "solve" a particular problem and it is included going forward.

Of course, what might happen is that 5, 10, 40 years down the road, no one remembers why particular language has been added. It just keeps getting used because people are afraid to take it out. So even if the original reason for it being there is no longer relevant, it will still be used.

 

[Snarf Zagyg]

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.

Ugh. Small businesses can be the worst in general when it comes to artists. For all the talk of "the man" or the "big corporations" screwing over artists, most of the real horror stories I've heard come from the small businesses.

Most of them don't understand what art really costs (in terms of supplies and labor). They have this vision of artists, just hangin' out and drinkin' wine. And they will demand constant changes to the work without paying for it. And sometimes they just won't pay for the piece (or, just as bad, not pay the agreed-upon price ... because what else is the artist going to do with a sign for "Snarf Zagyg's House of Sandals and Fishmongers"?).

 

[Xetheral]

That's ... not quite right.

Most language that has been added is in response to a particular holding. For example, one court says that a particular clause in a contract wasn't enforceable, because it wasn't emphasized. So people read that and they start putting that clause in ALL BOLD and require separate initials for that. And that becomes "boilerplate" (standard)- it was added to "solve" a particular problem and it is included going forward.

Of course, what might happen is that 5, 10, 40 years down the road, no one remembers why particular language has been added. It just keeps getting used because people are afraid to take it out. So even if the original reason for it being there is no longer relevant, it will still be used.

Emphasis added. We apparently have wildly different perceptions of how comprehensive extant case law is concerning contract language.

 

[Umbran]

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.

I expect that the context of a contest is largely irrelevant.

From what I have read, legally speaking, there was absolutely no issue with the contest terms. There's a bit of a tendency for legal duffers to conflate how they want things to work with how the law has, is, and/or should be interpreted, which muddies the waters a lot.

There's certainly a popular desire for creators to retain rights to their creations, and there's nothing really wrong with that. However, that desire often runs contrary to the long-term needs of publishers with respect to events long after the contests are done.

So, maybe we don't get contests any more.

 

[Snarf Zagyg]

Emphasis added. We apparently have wildly different perceptions of how comprehensive extant case law is concerning contract language.

I would think so! I mean, in 2019, there were over 26,000 contract cases filed in federal court alone. Federal courts have fewer contract cases than state courts. The first state I looked up had over 50,000 pure contract cases filed in 2019 (not including specialized contractual ones, like landlord/tenant or contract involving real property). That's one state.

So, yeah. In my opinion, contracts get tested a lot, and saying otherwise is ... not correct.

Anyway, that's pretty far afield from my original point- which is that this language is inserted for a specific reason, not just "to screw over artists," and that it is helpful to understand why it is there before getting all "twirling mustache capitalist" on it.

But hey, I've said what I needed to. The issues with running contests and sweepstakes are very well known. It's not easy (if you want to do it right). The rest of this is just noise, and a lot of posturing, and "my morals can beat up ur lawyer" stuff. It's all good.

 

[Maxperson]

I expect that the context of a contest is largely irrelevant.

From what I have read, legally speaking, there was absolutely no issue with the contest terms. Some folks would like there to be legal issues, because that supports their desires, but the terms looked pretty clear and sound.

There's simply a popular drive these days for creators to retain rights to their creations. There's nothing wrong with that desire, except insofar as it can make some forms of contest untenable for the company who would want to run them.

But this contest explicitly let them keep the rights to their work.

 

[Umbran]

But this contest explicitly let them keep the rights to their work.

It is more correct to say they retained almost all rights to their work. They retain their right to use it themselves, but in submitting to the contest, one would give up the right to say, "No," to future use by D&D Beyond.

I am sure folks upthread have outlined why that is necessary, from D&DB's point of view.