SO YOU WANT TO BE AN ANIME WAIFU/HUSBANDO?

VTubers have been extremely popular in Japan for quite some time and now they are exploding in popularity with Western content creators in the last couple years. VTubers, a portmanteau of “virtual YouTubers,” are content creators on social media such as YouTube, Twitch, and TikTok; but rather than recording themselves, they use a virtual avatar that simulates their movements and expressions. There are many reasons why a content creator may want to use such an avatar: mental health, physical ailments, personal security, or simply they just want to be a cute avatar. Regardless of the reason, VTubing allows many content creators to amass a large following where they would otherwise not have dipped their toes into content creation. On the other side of the spectrum, many established influencers with millions of followers have jumped on the trend and also purchased VTube models as alternative content.

As with anything popular, the cost of purchasing a VTube model has climbed up significantly. Affectionately dubbed Mamas and Papas, modelers will illustrate and rig the avatar to a preferred motion capture software using similar technology as Apple’s Animoji. Rigging the avatar means to create joints and facial expressions so the illustration can move and emote realistically to the motion capture software. The rigging can vary from simple arm movements to complex actions and facial changes. Illustrations can also vary from basic 2d sketches to 3d character models rivaling AAA animation studios. The varying degrees of detail is reflected in the price, where a simple avatar can be as low as $200, with higher end models costing upwards of $5,000+. Also content creators might want to hire artists to create props, additional outfits and other accessories for the avatar, which can add to the cost of Vtubing. With the high price of a VTube model and the time investment it takes to create a brand for the persona, it is very important for content creators to know what are some of the issues involved in commissioning a VTuber. The rest of the post will go over some important points that should be discussed when forming a contract with Mamas or Papas or similar companies.

WARRANTY OF ORIGINALITY

It is extremely bad faux pas in the VTubing community to copy someone else’s avatar or personality; which can even lead to VTubers being “cancelled” during their debut by fans of other VTubers. Legally, this can lead to intellectual property troubles such as copyright and trademark infringement. A way to protect the buyer from unknowingly purchasing an infringing work is a warranty of originality. Warranties are contractual guarantees and a warranty of originality is a guarantee the creating party’s work is original, has not been previously published, and free from infringement upon any other intellectual property. Warranties may also come with certain consequences when violated, such as, voiding the contract and other agreements, refunds, and assumption of certain liabilities.

There are also other measures one can take to help ensure the artist is creating an original work. When asked to describe the work to be commissioned it is best to use specific language such as black hair, yellow headband, red eyes and slender face rather than “something that looks like ‘x anime character.’” An artist may look at other works for inspiration, but when a client specify a particular character, the artist might use too much characteristics from such character that it approaches infringement.

Another measure is to speak up. Much of art is built on the styles, techniques, and influences of previous artists and an artist may unknowingly create work resembling a copyrighted or trademarked material. It is important to bring any concerns to the artist as soon as possible. This is especially true during the sketch phase of the commission when both parties are trying to sample what the work will look like. When brought up early it is fairly easy to change the work to meet these concerns. However, it may cost the buyer more money and the artist more time if any concerns of originality are not addressed at the point.

WORK FOR HIRE

Now that the parties have taken care to not infringe on any third parties’ intellectual properties, who will own the copyright to the work being commissioned? I wrote on the issue HERE, but I will summarize. Copyright is created when an original work is “fixed in any tangible medium of expression,” meaning copyright vests once the work comes into existence and no longer just a mere idea. The owner of the copyright is the person or persons bringing the work into existence and, in the case of VTubers, the Mamas and Papas. Note that it is NOT the person who paid for the commission. This might be surprising to some. Luckily, copyright can vest upon another through the “work for hire” exception that treats someone else as the true author of the work. The exception applies when either the creator is an employee or the work was commissioned and expressly states the work is a “work for hire” in a written contract. Outside of a company owned VTuber, the latter is the most common scenario, a content creator commissions an independent contractor to create the model. Therefore, if the buyer wants to own the copyright to the character, there should be language specifically stating the commission is a “work of hire.” Otherwise, the VTuber will only have a license or less to the underlying work. Having a mere license can inhibit how a content creator can use the VTube model.

For greater protection, in addition to the “work for hire,” one might want to also include a buyout clause stating, in the event a “work for hire” relationship was NOT established, the author to the work will assign the copyright to the person commissioning the work. This creates a safety net where if the copyright vest to the artist, the copyright is transferred to the buyer once payment is made. This type of language might be needed because it is common for “work for hire” formalities to not be met and unknowingly the copyright can be kept with the author of the work. It is important to note, in terms of retaining the copyright, a “work for hire” will be preferable to a copyright transfer. U.S. copyright law allows the original author to terminate a copyright transfer after 35 years, but this does not apply to a “work for hire.”

PAYMENT STRUCTURE

Complaints about satisfactory work or timely payment are common issues in commissioned art, and as such, both artists and buyers should take steps to mitigate any losses if either performance or payment fails to come through. Take time early to review the steps in creating a VTuber and break down milestones to inspect the work and make payments. Each phase of the development should have clear instructions and expectations for the artists, deadlines, amount of payment either before or after completion of the milestone. Do not be scared in discussing what will happen if the project ends prematurely. Sometimes the art might not be what you expect it to be and ending the project before completion is fine as long as the artist is paid for the time they put in. If the project is terminated also discuss the rights each party has in any work already being developed.

For example, the parties might agree to break down the development to sketches and revisions, final illustration and coloring, and rigging. These milestones can be broken down further depending on how the buyer and artist agree to structure their relationship. The cost of each step may also vary immensely depending on how the artist’s workflow is structured. Some artists might provide three mock up sketches while some might provide six. Some artists might include a set number of revisions while some might charge a fee after a certain amount. The important thing is to make all the steps known and be comfortable with the artist’s workflow and the cost of the work with each step. Remember, not all artists might be the right fit for the costumer and it is best to discover that early on rather than disputing it when the work is completed.

CONCLUSION

These issues are frequent problems I see in purchasing a VTube model, but they are far from the only ones. There can be a plethora of problems in any contract, especially those that deal with commissioned art. Recently there have been quite a large amount of changes and legal developments in digital artwork that might come down from legislations and pending court cases. Taking time to discuss and create a written agreement between buyers and artists can secure what everyone wants out of the relationship. As always, if these concerns seem to affect you or your rights, please contact a licensed attorney to work out the details with you.