Your advice on using copyrighted material in demos-mods-small games

Game mods? Unless the resource comes from the game the mod is for, I really doubt it.

Freeware software that will be distributed? I really wouldn't think so.

Graphics demos? Probably because it's only a small demo, and I doubt anyone will really care.

Basically, they are all illegal (as far as I know), but I would assume that the companies wouldn't really care unless the software/game is actually being distributed (regardless of whether the software is free or not).

My advice: don't touch it with a 50 foot pole.

You can distribute 30 sec's part of songs through internet without legal problems.
So why not use them in free game/demos?

Because you can distribute 100% of the thousands of free materials placed under creative commons by independent developers and completely avoid the issue all together.

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.... There is no simple test to determine what is fair use. Section 107 of the Copyright Act sets forth the four fair use factors which should be assessed in each instance, based on the particular facts of a given case, to determine whether a use is a "fair use": (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and (4) the effect of the use upon the potential market for or value of the copyrighted work. ....

What part of the above legal definition is violating the cases i mentioned?
Does fair use exists in games?

The purpose or character of the use.

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Original post by Sneftel The purpose or character of the use.

Non-profit use.

I wouldn't even try it without the written consent of the studio or company that owns the rights to the materials you're wanting to use. Otherwise you could face a "cease and desist" letter or legal action. I've actually been a part of two small groups that wanted to make games using copyrighted material. I told them they should be careful and they thought I was nuts and paranoid! About a month or two later, both groups got letters from law firms representing the companies. One group decided to go forward taking out all of the copyrighted material and make the game their own. The other group completely fell apart.

As to why you can't do it: it is intellectual property that some company has paid to be able to use. Odds are they paid a good deal of money for that right as well.

Also, even if you're wanting to use this in small, indie games that may be free- it is still illegal and you could still face legal troubles.

I suggest reading this article on the subject, do some more research and try contacting the companies that own the rights. Some are okay with mods, demo and indie games using their materials, while others are dead set against it.

I think a good rule of thumb is if the game is still being marketed (or in a series that is) you can pretty much count it out. Companies want to protect their investments and make the most out of them. If the game has been stale for about ten years, and there are no plans to make more of that game....then maybe.

Best to always check before hand!

Good luck!

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Original post by Yperloxas Quote: .... There is no simple test to determine what is fair use. Section 107 of the Copyright Act sets forth the four fair use factors which should be assessed in each instance, based on the particular facts of a given case, to determine whether a use is a "fair use": (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and (4) the effect of the use upon the potential market for or value of the copyrighted work. .... What part of the above legal definition is violating the cases i mentioned? Does fair use exists in games?

I've never heard of a case where such use as you described was successfully defended when a case was brought against them. If you can't find one, that means you'd probably lose a court case. Even if you can, the chances are slim. Using copyright work without permissions is, in general, a bad idea. Criticism, parody, and short citations in general, seem to be protected.

Using without permission a sprite, texture, or sound would violate #3 and #4 at the very least, since you're stealing the entire copyrighted work and are using it in a way that directly competes with the game (whether it be a demo, mod, or freeware game, it still competes). A short sample of a song might be different, but using it is just asking for trouble.

If you don't have express written consent from the IP rights holder, don't use the IP. Even if it is conceivably "fair use," they can afford better lawyers than you, so you will lose if it goes to court.

In today's generous society of open source, creative commons licensing, and general IP altruism, risking legal trouble over protected IP is just foolish.

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Original post by Yperloxas Quote: .... There is no simple test to determine what is fair use. Section 107 of the Copyright Act sets forth the four fair use factors which should be assessed in each instance, based on the particular facts of a given case, to determine whether a use is a "fair use": (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and (4) the effect of the use upon the potential market for or value of the copyrighted work. .... What part of the above legal definition is violating the cases i mentioned? Does fair use exists in games?

I thought you were asking for our advice on the situation, not looking for an IP argument.

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Original post by ApochPiQ In today's generous society of open source, creative commons licensing, and general IP altruism, risking legal trouble over protected IP is just foolish.

I would have to agree, and there is no reason to want to use someone else's stuff out side of not being able to reproduce it. There is nothing "fair" about swiping someone else's work because its better than yours or it's handy.

I'm not a lawyer but I ran a game project for a long time based on existing IP (we ended up getting permission), and so I've done a bit of research.

Yes, fair use does exist in games, as it does for all works.

It is meant to allow you to enhance an original work by permitting you to use insignificant portions of a copyrighted work, like in Back to the Future where Marty says he's "Darth Vader from the planet Vulcan" or in Starcraft where a background graphic looks remarkably like a Star Wars Sarlacc pit.

Taking the first 30 seconds of a song MIGHT be ok, depending on how you use it. For example: taking a repeatable intro to a song and using it as one of your game's themes is a CLEAR copyright violation, while in an FPS if a portion of a song is part of backround noise (say it plays in only one room from a raido you place) then it might (I stress MIGHT) be ok.

From your posts it seems like you're trying to shortcut content creation by taking small pieces of other games - That's copyright violaton and you know it because you're trying to find what you can get away with rather than applying fair use as it was intended.

Beleive me, the money it will take you to legally defend innappropriate use of copyrighted material will be FAR less than what it would take to license (or commission the creation of) content.

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Original post by Yperloxas Can someone use the limited amount of copyrighted material that can be fair use, in game mods,graphics demos,freeware games? Example,use of 20-30 sec's of a song? 1 or 2 ambient sound effects of a commercial game or even 1 or 2 textures of a game?

No because making a game isn't protected by Fair Use unless it meets strict criteria. The project needs to be for the purpose of "criticism, comment, news reporting, teaching, scholarship, and [or] research."

And no you can't just make a game and claim that it is for commentary - you have to be prepared to defend that statement in court because a copyright owner has the right to sue you.

I know of a developer who used one sound effect from another game. The original developer spotted it and went after them. They ended up having to settle out of court for over $100,000 to avoid huge legal fees. Likewise record labels now sue anyone using even a few seconds of sampled music. - Stay away it just isn't worth it.

What Obscure said.

I'd also like to point out -- and I really cannot stress this enough -- that the Internet is not subject to one, single, solitary country's laws. (This seems to be a common misconception. If you don't live in County X, that country's laws do not apply to you. Period.) Content is subject to the laws of whichever country the copyright holder happens to work in.

With all the genuinely free stuff out there, it's simply not worth the gamble. Use free stuff. Use royalty-free clip-art, or pay up.

Do not steal. Stealing is bad.

As Obscure points out, "Fair Use" does NOT apply UNLESS your intention is to use the extracts EXPLICITLY in an applicable context.

Have anyone seen this:
http://www.transfusion-game.com/

They use not a texture or some sound effect,but the whole data set of the game.
But they asked permission for this...

Can you mention a mod that was closed/sued for one texture or some sound effect(like an explosion not Duke Nukem) and which commercial game developer did that?

The only one i know is generations mod for quake 2,but they tried to include the majority of Wolfenstein,Doom,Quake data.

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Original post by Yperloxas Have anyone seen this: http://www.transfusion-game.com/ They use not a texture or some sound effect,but the whole data set of the game. But they asked permission for this...

They used all the media content, with explicit written permission from the IP owner. The technology they are using (Quake engine) is released under the GPL and therefore breaks no copyright laws.

It sounds to me like you are trying to rationalize something that you know is illegal. Honestly ask yourself, why is it that you need to use copyright material? If you absolutely need to use it, find out who owns the intellectual property and get their permission in writing. If you don't, you risk litigation. If it were me, I'd stay away from IP all together.

Do you know any freeware game(or even OpenGL demo for contest) that got permission to use small samples(<30 secs) of commercial music?

Instead of asking for examples of instances where someone has used copyrighted IP, just understand that it is illegal and something that major companies protect and take VERY seriously. As others have pointed out- there is SOOOOO much free domain resources out there and many people on here (and other web communities) would love to help out for very little payment, or even for free.

People have been more than clear with you about the legal issues, not even mentioning the moral issues of stealing someone's IP. I'm a professional musician and composer and I wouldn't want you to use 30 seconds of my commercial music without consulting me first. Ask first, you never know....they may grant you permission.