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Copyright and You

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There have been a few posts in the past month at a higher frequency than normal talking about Magic’s contracts with their card artists, specifically their pay rates and licensing. There have been countless questions being thrown out, and since I worked in rights and reproductions at a major art museum and as an art director for a stint, I feel happy to shed some light on a bunch of introductory queries.

Every city has copyright attorneys, and I’ve found that they tend to be friendlier than the stereotypical lawyers you may envision. In Minneapolis, there’s an entire sector of attorneys who work the creative economy, from Kickstarter games to microbrews and more. Friedman Iverson is one firm I’ve even used while I was working on a side project if you need an example of what that kind of looks like.

Copyright is confusing as hell, but I hope we can scratch the surface a little today. If you’re an attorney and want to comment below, definitely correct me with any insight you can offer! I can’t give legal advice, and I’m not offering any solutions, but I’d like to explain a little how copyright works from my perspective. I posted a few calls for questions, and I’ve put them below—there are great questions in there!

What Is Copyright?

“Copyright is a legal right created by the law of a country that grants the creator of an original work exclusive rights to its use and distribution, usually for a limited time. The exclusive rights are not absolute; they are limited by limitations and exceptions to copyright law, including fair use. Copyright is a form of intellectual property.”

— Wikipedia, Copyright

Who Owns the Copyright to a Magic Artwork?

“Retains the rights” is what the field calls it, and since all Magic art contracts are “work for hire,” Wizards of the Coast owns all rights and reproductions of the image. The artists are given lifetime licenses to make prints and any art books with 75% or less of the artworks included being from Magic.

What if a Painting Is Made for Magic but Never Sees Print, Such as a Last-Minute Development Cut from a Set?

These pieces can still, and often are, still bought for Magic and are added into a future use pile. The industry calls that “slush art,” and cards such as Baneslayer Angel began their lives that way.

Baneslayer Angel by Greg Staples, copyright Wizards of the Coast

Do You Gain any Rights when You Acquire an Original Art of Magic?

No. You gain a pretty fun thing to see on your wall every day, but you do not gain any rights to reproduce of any kind. This means no play mats, no prints, and nothing of that sort at all. You do gain one little oddity though: If working with your insurance company, or for any reason when you would need to make a list of your artworks, you may take a photo of the work for documentation.

Some insurance policies will only cover restoration costs, making a photo of the front and back of the work for the restorer to examine invaluable. I would make sure that you keep some semblance of a fair-market value appraisal in your documentation as well, in order to make sure that your insurance policy will cover the worth of your art today.

The Original Artwork of My Favorite Art Is Sold, but I Still Want Something Special to Hang on My Wall. Is There Any Licensed, Official Thing to Buy That isn’t Just a Print?

Generally yes! Most artists have limited-edition prints, signed and numbered on better archival quality paper. Some artists even have canvas giclees artworks, like Eric Deschamps of Planeswalkers, already stretched onto wood and ready to hang. Even more rare are canvas giclees that are made by the artist and embellished with paint to make the darkest darks correct (they can print light sometimes) and the light colors as the artist intended. They’re generally rather affordable, too (under $500), for something so unique. A handful of digital artists will make singular copies of these embellished canvas giclees and consider that their only original. Artist John Stanko really puts a lot of paint on his, and they look beautiful!

Does Copyright Expire? (And Then Can I Make Stuff!?)

Technically, it’s seventy years after the death of the creator, but if the work is of corporate authorship, it’s ninety-five years after publication or one hundred twenty years from creation, whichever expires first. Unless you’re a lich or vampire, you’ll probably never have the ability to use the art for whatever purpose you wish. There’s a reason why those dates are chosen!

I’ve Heard the First Set of Magic Artists Received Royalties and Kept Copyright; Is That True?

Well, again, “keeping copyright” is a difficult way to say it. Right around 1996, artists were given a choice: sign a new contract, transferring all copyright of their works, or don’t receive any additional Magic assignments. Royalties ended at this point. A large restock of artists occurred, which Jesse Mason mentions in his interview of the Art Director Sue Ann Harkey.

Why Doesn’t Magic Online Use the Original Power 9 Artworks in Vintage Masters?

Well, they can, but they choose not to. They have recommissioned older art instead. In some cases, royalties would need to be paid to some artists if one of their paintings shows up.

Artists Can Make Prints. What Is the Dividing Line Between a Print and Something Like a Bookmark or a Postcard? How Does Size Come into Play?

Logic is the best bet for what’s considered a print. There used to be verbiage that prints couldn’t be made larger than the original painted image, but that has gone away since digital paintings don’t really work by constrained physical size.

Before I can discuss what the actual issue is, I need to cover some ground, explaining a few things.

An Artist I Know Is out of “Limited-Edition Prints” of My Favorite Work. Will That Artist ever Make More of Them?

Making another version or run of a limited-edition print run is possible, and that decision is up to the artist, but it’s very uncommon to do so in our industry. Open edition prints tend to be available though. Ask them for one of those!

Why Aren’t Artists Making Art Books about Magic? Are They Not Allowed to?

They are, and they do make them! The Gathering, a book by artist Jeff Menges and forty of the earliest Magic artists, was made, as was John Avon’s Journeys to Somewhere Else. Magic has always allowed artists to make books, and a recent change in contracts now allows the books to include more Magic art than was previous allowed, which is great!

Why Can’t I Buy My Favorite Artwork on a Play Mat from an Artist?

The copyright to produce a play mat lies with Wizards, and Ultra Pro is the official and exclusive producer of Magic card art on play mats. Since Wizards owns the rights (copyright) to the image, they decide if it is made into a play mat. If you want one made of your favorite art, absolutely contact them. If enough people contact them, defining a market, it’s possible it could be made. This is especially true with older odd cards that become relevant in the Modern or Legacy format out of nowhere.

I Don’t Think Ultra Pro Has Made or Will Make My Favorite Artwork into a Play Mat, and I want to Make My Own. What Do I Do?

I fully recommend commissioning the artist of your artwork to make you one on a white play mat. I hear a few hundred dollars and a little patience will absolutely get you your perfect play mat.

Gravecrawler by Steve Belledin, a charity play mat for a 2013 tourney

Can I Ask an Artist for a High-Resolution Image of Someone’s Work to Make into a Play Mat?

Yes, you can ask someone for it, and he or she may give it to you, but you cannot legally make play mat because the artist no longer owns the copyright or licensing rights to do so, and since he or she doesn’t, he or she can’t license them to you. This is a copyright infringement by the company making the item. Fair usage does not cover a player or a company here.

I Bought a Token, but the Back of It Isn’t a Magic card; Why Is That?

Even the back of the card is copyrighted and cannot be reproduced. More difficult to explain is that even tokens are probably trademarked. It’s definitely a gray area with Wizards of the Coast seemingly being very supportive of Magic artists making tokens of stuff thus far.

Do Recreations of Existing Magic Art Violate Copyright?

Yes, but they may not. Technically, work-for-hire contracts cover all derivatives with any characters depicted, but derivative artworks can be transformative, meaning they are a new work, despite having characteristics from the original. Things like making a new print of a Planeswalker are obviously against Wizards owning the rights, whereas painting a dragon in a snowy landscape isn’t necessarily from Ice Age or Coldsnap.

It’s much more complex than I’m making it out to be, and consulting a copyright attorney would be a good idea if any artist wishes to mass-produce anything even remotely resembling Magic.

People Online Use Images of Magic Cards All the Time; Why Isn’t This a Problem When They Don’t Credit the Art?!

Well, folks should be crediting artists and Wizards of the Coast when using any Magic images. I like to use the card, as it has all the info, but even then, it’s technically fair use to any scholarly- or commentary-based medium to not need permission to include the image. Fair use is a rabbit hole—I’m well aware—but if it isn’t for your classes (undergraduates citing Magic is always good), a scholarly thing, journalism (which is what I am), or social commentary, I’d get permission A.S.A.P. Who would you acquire that from? Generally, the Brand and PR folks at Wizards of the Coast are whom you would contact.

Can Recreations Use the Card Name as Long as No Trademarks Are Used?

Nope. Titles of works are transferred in a work-for-hire as well. More interesting is that if a work doesn’t see print (e.g. is bought and made into slush art), neither the title nor card-name-yet-to-be-determined can be used for any other ancillary product.




I hope you enjoyed today, and as always, ask an attorney friend if you need official advice about this! For anything else, I’m always on Twitter @VorthosMike.

-Mike


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