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).

 

[Lanefan]

Asked and answered.

Partly.

1. Don't run competitions that ask artists to give up rights to products you may or may not sell in the future.

2. Don't run competitions that ask artists to give up rights.

3. The competition runner gets the right to display the art but no publication rights.

4. The competition runner gets the rights to the winner(s) but all other artists retain full rights.

I think the yet-unanswered question is what the legal "boilerplate" would look like, to achieve these ends. Still hoping a lawyer can chime in here with some suggestions.

 

[Snarf Zagyg]

Partly.

I think the yet-unanswered question is what the legal "boilerplate" would look like, to achieve these ends. Still hoping a lawyer can chime in here with some suggestions.

I'm hoping three lawyers chime in.

...because then we'll get five different answers!

 

[Lanefan]

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)

"To spec." means what you say it means: you're producing to someone else's specifications.

"On spec." means it's been produced on speculation, in hopes it'll sell but without having a buyer lined up ahead of time.

I'm not sure which meaning the poster you're referring to had in mind.

 

[Snarf Zagyg]

I'm not sure which meaning the poster you're referring to had in mind.

Since I wrote both “to spec,” “on spec” and also just “spec art” I can understand the confusion!

But I was referring to production to specification.

 

[Hussar]

/snip

Alice: No, Hussar has a great idea; we will just hire people to review the submissions each time we put out a new product to make sure we aren't infringing!

Carrie: Um, so we have to pay people to review the contest submissions each time we put out a new product? That sounds ... expensive. Really expensive. But it's the right thing to do! Okay, Debbie, will that work? So we won't get sued?

Debbie: Well, no. People sue all the time. Reviewing them might help factually, but it's not a defense. We'll still have to pay for the litigation, and that's what costs the real money. The entire purpose of the language we put in is so that if someone submits something and sues us later, we don't have to spend tons of money on litigation.
/snip

@Snarf Zagyg, I have to said first off, this is an excellent post and I agree with pretty much everything you say here. I just not sure I agree with this specific point. Why would a 3 second image search be expensive? These are all digital images and there are "search for similar images" search programs. Heck, MS Photos will group photos this way. I'm pretty sure Mac has similar functionality. There are also several free and paid local image searching programs that will do the same thing. So, I'm not sure that "expensive" is an issue.

And, since you can do these image searches, you can ensure that your images aren't copying anyone else's images, which should make it pretty hard for anyone to make claims against you. Not impossible, true, but, much more difficult since you can ensure that none of your images are close enough to get sued over. Or, heck, if you find an image that already looks like something you wanted to use, you do have that artist's contact information...

 

[Mort]

@Snarf Zagyg, I have to said first off, this is an excellent post and I agree with pretty much everything you say here. I just not sure I agree with this specific point. Why would a 3 second image search be expensive? These are all digital images and there are "search for similar images" search programs. Heck, MS Photos will group photos this way. I'm pretty sure Mac has similar functionality. There are also several free and paid local image searching programs that will do the same thing. So, I'm not sure that "expensive" is an issue.

And, since you can do these image searches, you can ensure that your images aren't copying anyone else's images, which should make it pretty hard for anyone to make claims against you. Not impossible, true, but, much more difficult since you can ensure that none of your images are close enough to get sued over. Or, heck, if you find an image that already looks like something you wanted to use, you do have that artist's contact information...

You may think it's simple and inexpensive - it's really, really not,

I just asked my wife (a patent attorney) what her firm charges for a prior art search (as in to see if someone else has done something similar) - immediate answer $2,500-5,000.00.

Now, that's primarily to see if you can copyright/trademark/or patent (depending on what it is) something but this isn't THAT different. Rather than analyzing how easy it would be to get the copyright/patent/trademark the attorney is analyzing how likely you are to get sued by using an image.

That's going to add up really fast if you want to cover your bases. Better to just cover your bases initially (the initial language at issue here) and drastically lower the chance of being sued.

 

[Hussar]

Partly.

I think the yet-unanswered question is what the legal "boilerplate" would look like, to achieve these ends. Still hoping a lawyer can chime in here with some suggestions.

Well, in case 1 - the artist retain all rights, - I'm not sure there is any legal boilerplate that you could make that would work. Maybe something like an agreement to give up the rights to sue over similar images? I don't think that works. It's basically no protections for the company whatsoever and the company gets to eat any future issues. OTOH, if the company doesn't sell products that are created by contests, then there's no problem right? That would solve all the issues right there. So, don't run contests asking for someone to make something when you plan on selling that thing later on down the road.

Case 2 - Yup, the company is totally on the hook here.

3. The competition runner gets the right to display the art but no publication rights. Again, we're back to the notion of not asking fans to create material similar to something you're going to sell down the road for profit. Personally, that's one of the larger objections I have in this specific case - DDB, particularly if they go the VTT route, WILL be selling character frames. That's practically a given. Every VTT I can think of has them for sale. I think that running a contest for something you're going to sell down the road and then getting the sales rights to thousands of hours of free labour in the process is pretty indefensible.

and


4. The competition runner gets the rights to the winner(s) but all other artists retain full rights. To me, this is the most justifiable solution. As I said earlier, similar image search engines are free and included with Windows. There are other ones available too. So, down the road, when you want to sell frames like this, the first thing you do is hit up that image search and make sure that the ones you want to sell aren't copying anyone. And, if they are, call up the artist and pay them before you sell your image.

Again, does this 100% protect the company? No, maybe not. I don't really care that much to be honest. Protecting the rights of the artist right now is more important to me than protecting a company from potential lawsuit down the line. The company simply has so many other options.

 

[Snarf Zagyg]

@Snarf Zagyg, I have to said first off, this is an excellent post and I agree with pretty much everything you say here. I just not sure I agree with this specific point. Why would a 3 second image search be expensive? These are all digital images and there are "search for similar images" search programs. Heck, MS Photos will group photos this way. I'm pretty sure Mac has similar functionality. There are also several free and paid local image searching programs that will do the same thing. So, I'm not sure that "expensive" is an issue.

And, since you can do these image searches, you can ensure that your images aren't copying anyone else's images, which should make it pretty hard for anyone to make claims against you. Not impossible, true, but, much more difficult since you can ensure that none of your images are close enough to get sued over. Or, heck, if you find an image that already looks like something you wanted to use, you do have that artist's contact information...

I appreciate the questions (and discussion). I will divide this into two parts-

First, I honestly didn't think about AI. As @Mort just pointed out, checking for images in patents (prior art) or trademarks can be expensive and time-consuming, and I had imagined this to be similar. But maybe not! I don't know how advanced things will be, or how quickly. For that matter, how confortable people will be with "good enough."

Second, it doesn't really matter (from my P.O.V.). The reason that reputable companies running reputable contests have this language isn't to steal artist's IP- it's to protect themselves from a lawsuit. Now, the best form of lawsuit protection is to try and keep the lawsuit from ever being filed. Once you get into silly things like "facts" and arguing over those, you've already lost. And checking each and every time doesn't keep a lawsuit from being filed- it just gets you into "messy facts." (And the plaintiff would likely say, "That's evidence that they knew about my art ... after all, they were accessing it constantly!" I know ... people suck.)

And that's how you need to view these types of provisions- it's to keep someone from filing in the first place, because if they do, it will result in a quick dismissal. They can't sue, because the company has a license to use it.

Trust me- I understand how unsatisfying this can sound. Which is why I tend to think that, to the extent that people are saying that this is an issue that is adversely affecting creatives, the best answer is for corporations to just not have these contests.

 

[Hussar]

You may think it's simple and inexpensive - it's really, really not,

I just asked my wife (a patent attorney) what her firm charges for a prior art search (as in to see if someone else has done something similar) - immediate answer $2,500-5,000.00.

Now, that's primarily to see if you can copyright/trademark/or patent (depending on what it is) something but this isn't THAT different. Rather than analyzing how easy it would be to get the copyright/patent/trademark the attorney is analyzing how likely you are to get sued by using an image.

That's going to add up really fast if you want to cover your bases. Better to just cover your bases initially (the initial language at issue here) and drastically lower the chance of being sued.

A prior art search isn't searching your hard drive though. It's sifting through massive databases and possible offline sources as well.

We're talking about searching a single hard drive. And, ok, it's 5000 dollars.

So what?

That's the cost of running the contest. It's still a massive deal for the company that is getting thousands of man hours of labor for, essentially, free. Never minding that that 5000 dollars is an expense and comes out of your taxes anyway.

And, finally, you would only need to do this search when and if you are selling art that is similar to the art being submitted for the contest. Which, frankly, you're going to have to do ANYWAY because you are selling images that might too close to the images copyrighted by your competition.

 

[Azzy]

That is the argument being used in this thread so my point is directly relevant.

It was an extreme example that was a response to a specific poster.