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Parody in games & "Fair Use"

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I'm currently doing research on the Fair Use of Copyrited material. I would appreciate any advise from experienced developers, publishers, and lawyers that may be of aid. If you are not a professional then I would still value your opinion in this matter, but please state that you are not a professional in this regard during your first post in this thread. Ok, so here's the scoop: -REASONING- I'm currently in the design/documentation phase of an action/adventure/RPG. Because it's an older style game I wanted to add a "hook" for the newer gammers. Older gammers will more likely want to play the game because they remember how fun they were, but newer gammers mainly look for amazing 3d graphics and such. This is where the parodies come in. Everyone enjoys parodies, including newer gammers. -GENERAL CONCEPT- Practically every aspect of the game will be impacted in some way with parodies at key points in the game. Usually this will be in the form of a monster or character spoof, but you'll also come across areas of the map that are parodies of real or made up places. -EXAMPLES- 1) Little Bo Sheep is a sorceress wielding a shepard's cain and wears a dress. Her main attack is "Summon Rabid Sheep". 2) Kernel Zanders is a stock of corn with a goatie and large, thick framed glasses. His main attack is the "Cob Attack," which has nothing to do with KFC. However, other monsters called Popcorn Chickens are ALWAYS nearby. 3) Utter is remarkibly similar to a character on The Simpsons with the same name. He is a short, fat, german kid who loves candy. His main attacks are "Pin Wheel" and "Belly Bounce." -FINDINGS- Parodies are legal by law under the Fair Use provision of the Copyright Act, but it's hard to find good guidlines. These are the four points that a court looks at when considering if the case falls within the terms of Fair Use: (1) purpose and character of the use, including whether the use is commercially motivated or instead is for nonprofit educational purposes (2) nature of the copyrighted work (3) amount and substantiality of the portion used in the newly created work in relation to the copyrighted work (4) effect of the use upon the potential market for or value of the copyrighted work. The biggest obsticle is obviously #1 if I ever plan on selling it (which I probably will in small quantities) and #4 since I'll have to be careful not to offend anyone. Some businesses/people have been quite successful doing parodies (ie. 2 Live Crew, Wierd Al Yanovich and The Simpsons) so obviously it can be done. This are the most useful sites that I've found so far: publaw.com - really useful Parody, Copyright Law and the First Amendment - Also very helpful CETUS 10 Myths About Copywrites Copyright Infringement "Fair Use" section of the Copyright Website "Fair Use" section of Copyright.gov Intellectual Property Law Primer for Multimedia and Web Developers I'm still wading through all of this, but it looks like a real possibility. However, I'd definitely be walking on ice. -MOVING FORWARD- If anyone can direct me to more helpful sites then it would be appreciated. I'm finding it hard to find stuff specifically pertaining to parodies since most of the available information is in regards to making copies of something for school and such. Also I'd like to know what people think of this sort of idea in a game and any suggestions in making it succeed. I would also appreciate some general guidlines on what sort of thing is acceptable and what is not. Sorry for any typos...that's a lot of type. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ ~~ The only thing better than word-play is playing with words involving word-play. ~~ ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ [edited by - ChronosVagari on February 19, 2004 9:32:58 PM]

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Guest Anonymous Poster
One of the factors you''ve missed in regards to parody rights is the factor test of how "transformative" or original the use of the parody is. For example, if you are doing a Parody of Super Mario bros, which is already in a video game medium, then your "transformative" or originality of framing the parody isn''t quite so and could be seen as passing off or infringing the rights of Nintendo. Using a parody of the KFC Sander''s in a video game would go easier as it is more "transformative" or a original depiction of i

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The fair use provisions do not prevent big media companies from suing you, so in the US you can still lose a lot of money to legal costs even if you eventually win the trial (in Europe, they loser generally has to pay for the trial, so frivolous lawsuits aren't as effective at silencing non-wealthy people/companies).

[edited by - HenryAPe on February 22, 2004 6:33:15 PM]

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That''s true about it not mattering if you win a case or not. You can still lose a lot of money, even if you win. This is why I''m planning on keeping the parodies of corporations to next to nil. I''ve decided to take out "Kernal Zanders" since that''s a parody of a Trademark, which is harder to defend against in court. And it''s one of those risky ones where you might find yourself going up against one of the big boys.

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First: no I''m not a lawyer, but I am a legal clerk in the industry for 15 years, for a large (650+ attorney) global lawfirm - and I''ve considered similar questions in game design and writing.

Just to use your examples:

Little Bo Peep: no one "owns" the rights to Little Bo Peep. The character is public domain. Use her as you will. Be gentle, tho''. To give a stronger example, the graphic novel/movie The League of Extraordinary Gentlemen used ALL pre-existing public domain characters to create a new work.

Kernal Zanders: actually this would be considered a parody. You didn''t use the exact image - you made him a corn cob, not an elderly southern man in a white suit. The point is to evoke the imagery of KFC''s Colonel Sanders without blatantly ripping off the imagery and name - which you''ve done. Courts do allow a lot of leeway, depending on how it''s used. A video game where your corn cob attacks chickens (are your "popcorn chickens" chickens with popcorn bodies?) would definitely fall under parody/fair use laws.

Utter: infringement. Blatant. You''re using the Simpsons character...why? Because you think the character would fit well in your game? It isn''t fair use - you''re not, say, writing an article on the Simpsons, and using the image and name of Utter to make a point. In its most general sense, a fair use is any copying of copyrighted material done for a limited and "transformative" purpose to comment upon, criticize or parody a copyrighted work. Fox would KILL you on this one.

Good luck!

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Thanx Eric! Your explainations make a lot of sense. They actually helped my understanding quite a bit. I''ll post some more examples when I get the design document back from storyline. I''d be interested to hear your take on some of the others.

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Just as a word of warning, you will want to consult with an lawyer who specialises in international law if you intend to sell anything like this outside the USA. There are lots of things that can turn messy for you.

For example, Canada has no parody provision in our copyright act, which may/may not get you in trouble up here. I can''t really see a problem for you, but it is really better to be safe than sorry.

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quote:
Original post by Anonymous Poster
One of the factors you''ve missed in regards to parody rights is the factor test of how "transformative" or original the use of the parody is. For example, if you are doing a Parody of Super Mario bros, which is already in a video game medium, then your "transformative" or originality of framing the parody isn''t quite so and could be seen as passing off or infringing the rights of Nintendo. Using a parody of the KFC Sander''s in a video game would go easier as it is more "transformative" or a original depiction of i




wasn''t mario the refferee in punch out?

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