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ZenDavis

Copyright Infringement: FAQs and other items

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After reading and responding to several posts on gamedev that were clear violations of copyright I thought it would be helpful to provide some info on copyright. All of this info is easily found on the web, but most people don't seem to do much research or planning before setting off to make their project. This is not just a recent problem, it has been happening since I first joined up back in 2006. I feel much of this is hurting the GD.net community and will explain below. Any considering making a game that involves copyrighted material should read this article: 10 Big Myths about copyright explained. The arrogance, attitude and complete lack of knowledge I'm encountering from many of those involved with making games that violate copyright really worries me. It also frustrates me as well. As a professional game developer, I want to see the indie game development community grow, mature and raise the standards. Seeing multiple projects on several forums where users state such naive statements like this worries me greatly! After all, it isn't just my personal feelings I'm sharing about copyright infringement. Its the law! Many seem to want to point to an absence of punishment as rationale that it is okay. Wrong! Others want to say if I don't charge for it, then I'm in the clear! Wrong! As I said to many others: the intellectual property was purchased (often times at great costs) by someone else. The purchaser of this IP has the say as to how, why and when it is used in games, movies, books and other media. Not you. You, the fan, can enjoy the show and support the show but you cannot steal the show. You don't own the show, so you can't use the materials from the show, unless you get written permission. When I try to explain this to certain posters here I get responses like:
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Yes, I understand there's always the fear of copyright issues, but I'm not very concerned about that in the least as this game has already had an enormous form of popularity that Paramount and/or Bad Robot productions would surely have noticed by now and there has been no such threat or cease and desist order brought to my attention in the least within the past month at all.
or
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Okay, sorry, thanks though. Also there are plenty of fandubs on licensed anime, nobody has ever gotten sued and I doubt everyone gets permission.
and also
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I am continuing the game because: a. Sonic Rules b. If sega decides to stop us, then we will, but they aren't are they? c. All true Sega and Sonic fans would totally understand what i am talking about.
and finally:
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Thanks for your warning, but you are exgagerating a little There are some projects on Robotech (gerwalk.net) and MechWarrior (www.virtualcommander.com) on the web and nobody ever charged them. It is a free fan game. I can do anything unless I try to sell it.
My personal thoughts: Do some research into what you're trying to do. If you want to be viewed as a professional, serious game developer then act like one. Major developers don't just start a project with little or no research. They also certainly don't take a naive or caviler attitude towards copyright issues. To be completely honest, gamedev.net isn't viewed as that serious of a game development site by industry professionals right now. I know from first hand experience in many conversations I've had with my peers! Why? Because there is an influx of young people trying to make games that either: 1) Have very little planning and research 2) Directly violate copyright issues 3) There is a disarmingly low percentage of completely projects from gamedev.net. 4) Combo of any and/or all of the above. Please read what I actually say. I'm not a gamedev hater, I'm actually extremely supportive of this site. This is why I've been a member of this site for over 2 years and continue to promote, educate and support the site, its members and the projects started here. When I first joined I was looking for work to help jump start my career. Now I rarely look for jobs here, but am now passionate about helping others find their way to their dreams. We need to raise the standards here people! When I mention this site to other professional, full time game developers the reaction isn't that positive. I hate to say it, but it is true. I bring it up because the continued disregard by some of the younger members for copyright (and other things) on here is damaging the reputation of GD.net itself. I want to see this site grow into a serious development site, and the potential for this is great! After all there are so many great resources here and many other professionals lingering around eager to help and advise. However, much of the responsibility lies of us: the forum members. I know there are some on here just starting out, just learning the ropes. The rest of us should do our part to education and guide these members. No, I'm not talking about flaming, I'm talking about helping. Two very different things. I've grown quite disappointed in many of the project posts on here because they lack a professional quality. Even if you're only wanting to make one simple game for free, present yourself as best as you can. You'll find that the responses will be much more positive. I started my game career here over two years ago. I was a simple school music teacher who had a dream. Through tons of research, hard work, luck and assistance from many great people, I was able to reach my dream. This is a testament to what gamedev.net could be!! I would like to see this kind of success story for a larger percentage of it's members. Sure some will probably flame me and not actually read what I'm writing here, or hear my actual intent. I hope the others will see that I truly care for this site and want to see it grow! In the future when GD.net comes up again, I want the responses from other professionals in this industry to be overwhelming positive. We can make that happen, but first we must be more accountable for the types of posts we put up, and violating copyright is one way NOT to make this happen. Okay, rant over. I removed the full text because I didn't want to violate Mr. Templeton's copyright. I believe misread the part about linking and have corrected it. :) Thanks, Nathan
So where does parody/satire fall under this? "Although a parody can be considered a derivative work under United States Copyright Law, it can be protected from claims by the copyright owner of the original work under the fair use doctrine, which is codified in 17 USC § 107. The Supreme Court of the United States stated that parody "is the use of some elements of a prior author's composition to create a new one that, at least in part, comments on that author's works." That commentary function provides some justification for use of the older work. See Campbell v. Acuff-Rose Music, Inc. In 2001, the United States Court of Appeals, 11th Circuit, in Suntrust v. Houghton Mifflin, upheld the right of Alice Randall to publish a parody of Gone with the Wind called The Wind Done Gone, which told the same story from the point of view of Scarlett O'Hara's slaves, who were glad to be rid of her."

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Original post by ZenDavis
So where does parody/satire fall under this?

You didn't need to quote all that text to ask this question.

But what is your question about parody/satire exactly? What do you mean, "where does [it] fall under this?"

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Original post by Tom Sloper
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Original post by ZenDavis
So where does parody/satire fall under this?

You didn't need to quote all that text to ask this question.

But what is your question about parody/satire exactly? What do you mean, "where does [it] fall under this?"


Well lets say I want to use Mario in an RPG project that falls under parody, where does GameDev stand with that. Legally the matter has been clearly defined that such content would fall under fair use, and court challenges aside, the game could go to market until a judge says otherwise.

As it is, there hasn't been any legal challenge in the videogame spectrum of such a thing but in regards to movies and books and even music, parody has always fallen under fair use.

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Original post by ZenDavis
Well lets say I want to use Mario in an RPG project that falls under parody, where does GameDev stand with that. Legally the matter has been clearly defined that such content would fall under fair use, and court challenges aside, the game could go to market until a judge says otherwise.

As it is, there hasn't been any legal challenge in the videogame spectrum of such a thing but in regards to movies and books and even music, parody has always fallen under fair use.
Keep in mind that there are two separate issues in your question: Nintendo's intellectual property, and Nintendo's trademark of the character Mario.

As I understand it (and IANAL), the fair-use regulations governing the two are not identical.

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I think you should probably check out this, this, this, and this.

The important thing to realize is that Fair Use isn't a right you have, it is something that you have to PROVE that your usage is fair use. Which mean that, in general, Nintendo can sue you for your use of their IP (such as Mario) and then it is YOUR obligation to PROVE that your usage falls under the guidelines of fair use. That's expensive and, in general, not worth the effort.

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Original post by Washu
The important thing to realize is that Fair Use isn't a right you have, it is something that you have to PROVE that your usage is fair use. Which mean that, in general, Nintendo can sue you for your use of their IP (such as Mario) and then it is YOUR obligation to PROVE that your usage falls under the guidelines of fair use. That's expensive and, in general, not worth the effort.


Right. Essentially 2 kinds of law:

1) the kind where if you do something wrong the police will come get you and you are innocent until proven guilty

2) the generally business regulation kind where police don't have a role in enforcement. In this type, it doesn't matter if you are technically obeying the law. If you make a big company angry they will sue you anyway (and in some cases they have an obligation to sue or they lose their IP protection). In that case you have to be prepared to pay for your legal defense (or pray that the ACLU or EFF take up the case)

- me

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Washu - From one of your links -

In the case of creative and artistic works (including video games, for reference see E.S.S. Entm't 2000, Inc. v. Rock Star Videos, Inc., 547 F.3d 1095, 1099 (9th Cir. Cal. 2008)), it is generally accepted that the public interest in avoiding consumer confusion must outweigh the public interest in free expression for a trademark infringement/Lanham Act claim to survive.

This is an incredibly steep test, actually; according to the 9th and 2nd Circuits, an artistic work's use of a trademark that would otherwise violate the Lanham Act isn't actionable "unless the [use of the mark] has no artistic relevance to the underlying work whatsoever, or, if it has some artistic relevance, unless [it] explicitly misleads as to the source or the content of the work." Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894, 902 (9th Cir. 2002).

As most pornographic works survive the Miller obscenity test based on the "artistic relevance" test alone, it's fair to say that anything above zero artistic merit is sufficient. Humor and parody are typically viewed as having at least some artistic relevance, even if the humor is somewhat tasteless. There is also little to suggest that FailBlog's use of the mark improperly misleads consumers—on the contrary, it points directly to the actual source of the Fail.

---

I'm not concerned with discussing whether the undergoing a project centering on parody would be worth it at the risk of a lawsuit. That's something that would have to be decided in a courtroom.

In the collaboration section rules of GameDev, would it be all right to seek collaboration on a project centered on parody. At worst it's legally ambiguous, and at best, perfectly acceptable considering all the spoof movies, "Meet The Spartans", or shows "South Park", out there.

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Original post by ZenDavis
Washu - From one of your links -

In the case of creative and artistic works (including video games, for reference see E.S.S. Entm't 2000, Inc. v. Rock Star Videos, Inc., 547 F.3d 1095, 1099 (9th Cir. Cal. 2008)), it is generally accepted that the public interest in avoiding consumer confusion must outweigh the public interest in free expression for a trademark infringement/Lanham Act claim to survive.

This is an incredibly steep test, actually; according to the 9th and 2nd Circuits, an artistic work's use of a trademark that would otherwise violate the Lanham Act isn't actionable "unless the [use of the mark] has no artistic relevance to the underlying work whatsoever, or, if it has some artistic relevance, unless [it] explicitly misleads as to the source or the content of the work." Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894, 902 (9th Cir. 2002).

As most pornographic works survive the Miller obscenity test based on the "artistic relevance" test alone, it's fair to say that anything above zero artistic merit is sufficient. Humor and parody are typically viewed as having at least some artistic relevance, even if the humor is somewhat tasteless. There is also little to suggest that FailBlog's use of the mark improperly misleads consumers—on the contrary, it points directly to the actual source of the Fail.


Use [quote][/quote] when quoting something, to prevent confusion.

Nevertheless: You must PROVE it. Which means that unless you have rather significant funds backing you, you've generally lost before you even started. In the case of things like Mario, which is arguably an extremely recognizable character, you would most likely not only end up spending a lot of money trying to prove your fair use of the IP, but then lose. Almost everyone in the USA knows who Mario is, and I'll bet the same is true in most Western European and many Asian countries as well.

Finally, in the area of parody/satire: you again will have to deal with legal fees and prove that your use of their IP is a parody/satire, and the two are not equivalent either parody != satire and the defense of one does not constitute the defense of the other.

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Original post by Washu
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Original post by ZenDavis
Washu - From one of your links -

In the case of creative and artistic works (including video games, for reference see E.S.S. Entm't 2000, Inc. v. Rock Star Videos, Inc., 547 F.3d 1095, 1099 (9th Cir. Cal. 2008)), it is generally accepted that the public interest in avoiding consumer confusion must outweigh the public interest in free expression for a trademark infringement/Lanham Act claim to survive.

This is an incredibly steep test, actually; according to the 9th and 2nd Circuits, an artistic work's use of a trademark that would otherwise violate the Lanham Act isn't actionable "unless the [use of the mark] has no artistic relevance to the underlying work whatsoever, or, if it has some artistic relevance, unless [it] explicitly misleads as to the source or the content of the work." Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894, 902 (9th Cir. 2002).

As most pornographic works survive the Miller obscenity test based on the "artistic relevance" test alone, it's fair to say that anything above zero artistic merit is sufficient. Humor and parody are typically viewed as having at least some artistic relevance, even if the humor is somewhat tasteless. There is also little to suggest that FailBlog's use of the mark improperly misleads consumers—on the contrary, it points directly to the actual source of the Fail.


Use [quote][/quote] when quoting something, to prevent confusion.

Nevertheless: You must PROVE it. Which means that unless you have rather significant funds backing you, you've generally lost before you even started. In the case of things like Mario, which is arguably an extremely recognizable character, you would most likely not only end up spending a lot of money trying to prove your fair use of the IP, but then lose. Almost everyone in the USA knows who Mario is, and I'll bet the same is true in most Western European and many Asian countries as well.


What would someone have to prove? That a parody simply isn't a rip-off and carries its own artistic merit? Either way what you're saying is that it would be decided in a courtroom. My question is whether GameDev would let me seek collaboration for a project that is essentially a videogame equivalent of "South Park".

How well known the IP is irrelevant from what I've read. All that matters is whether the parody carries its own artistic merit, especially considering first amendment protections.

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Original post by ZenDavis
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Original post by Washu
Use [quote][/quote] when quoting something, to prevent confusion.

Nevertheless: You must PROVE it. Which means that unless you have rather significant funds backing you, you've generally lost before you even started. In the case of things like Mario, which is arguably an extremely recognizable character, you would most likely not only end up spending a lot of money trying to prove your fair use of the IP, but then lose. Almost everyone in the USA knows who Mario is, and I'll bet the same is true in most Western European and many Asian countries as well.


What do you have to prove? That a parody simply isn't a rip-off and carries its own artistic merit? Either way what you're saying is that it would be decided in a courtroom. My question is whether GameDev would let me seek collaboration for a project that is essentially a videogame equivalent of "South Park".

You would have to do prove that it is a parody. Satire is not protected by fair use, while parody may be. You would also have to prove that your parody doesn't violate the other tests for fair use as well (listed in one or two of those links I mentioned). Failure to pass any of those tests (which any significant usage of the likeness of Mario probably would), means it's not fair use. You aren't the one who decides if it passes or fails, a court of law is (and generally it will be decided by a judge, not a jury).

GameDev.Net will, in general, not prevent you from starting or pursuing a project provided it does not blatantly violate copyright laws as the owners judge that are applied to the site, or the owners of the works. Obviously the owners of the works whom you happen to be parodying can request we remove said posts from our site, and should that happen we will generally comply. Works that use IP from known copyrights (such as Mario, Command and Conquer, etc) will generally be closed or locked until you can demonstrate that you have permission from the IP owners to use those resources.

In general it is best, from a legal standpoint, to request permission from the IP holders before using the likeness of their characters. Or better yet, create your own fictional characters.

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[quote]Original post by Washu
[quote]Original post by ZenDavis
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Original post by Washu
Use [quote][/quote] when quoting something, to prevent confusion.

Or better yet, create your own fictional characters.


But doesn't that ruin the point of the parody? ;)

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Original post by ZenDavis
Well lets say I want to use Mario in an RPG project that falls under parody, where does GameDev stand with that.

Keep in mind that there are two separate issues in your question:
- What Nintendo would do;
- What GameDev thinks.

Why is the latter important? IOW, why do you ask, what is it you're REALLY trying to find out?

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Original post by ZenDavis
...Either way what you're saying is that it would be decided in a courtroom. My question is whether GameDev would let me seek collaboration for a project that is essentially a videogame equivalent of "South Park".

I get the feeling you think that the "proven in court" part of the discussion is of interest but not vital to your real question; which is, "Will GD allow someone to place HW posts for a parody project".

However the proof issue is a vital part of the answer because, until someone actually goes to court and the judge rules in their favor, the matter remains unproven. Just because someone believes that their project constitutes a parody that doesn't mean that the court will agree. Further more, as the matter is unproven, there remains the chance that the IP owner will take some form of action to prevent the use of the IP.

That is fine if the project team are willing to take on that legal risk (and have suitable indemnity insurance). They can put up a web site, post about the project and hope that Nintendo don't notice. The problems start when they seek to expose Gamedev.net to that risk.

What is the likely action? - In most cases I would assume a simple cease and desist letter and GD.net would immediately remove the offending material. However, there are companies out there who actively pursue trademark and other IP related infringements specifically in order to try and force a pre-court settlement. They know that companies will pay a settlement if it is likely to be cheaper than the cost of mounting a defense. they will often pursue any parties involved in the alleged infringement and specifically those that they think may have some cash. In other words they are less likely to actively pursue the (poor) individual who committed the alleged infringement and put more effort into attempting to prove the involvement of any company involved (such as GD.net), from whom they would have a greater chance of gaining a settlement.

The cost of responding to a cease and desist is minimal; but there is a cost. Any escalation above that and the costs rise dramatically.

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Original post by Tom Sloper
....what is it you're REALLY trying to find out?

What the Op is really trying to find out is NOT "will GD.net allow me to post (what I believe to be) a parody project".
The real question being asked is "will GD.net expose themselves to potential legal action and the associated costs(however minimal), because I want to use someone else's IP".

I certainly don't believe that GD.net has any responsibility to expose themselves to any level of risk and believe the current system whereby IP related projects are banned, unless the team can prove they have permission from the IP owner, is perfectly reasonable.

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Original post by Obscure
What the Op is really trying to find out is NOT "will GD.net allow me to post (what I believe to be) a parody project".
The real question being asked is "will GD.net expose themselves to potential legal action and the associated costs(however minimal), because I want to use someone else's IP".

Ah. I always love seeing the real question!

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Original post by ZenDavis
...Either way what you're saying is that it would be decided in a courtroom. My question is whether GameDev would let me seek collaboration for a project that is essentially a videogame equivalent of "South Park".

I get the feeling you think that the "proven in court" part of the discussion is of interest but not vital to your real question; which is, "Will GD allow someone to place HW posts for a parody project".

However the proof issue is a vital part of the answer because, until someone actually goes to court and the judge rules in their favor, the matter remains unproven. Just because someone believes that their project constitutes a parody that doesn't mean that the court will agree. Further more, as the matter is unproven, there remains the chance that the IP owner will take some form of action to prevent the use of the IP.

That is fine if the project team are willing to take on that legal risk (and have suitable indemnity insurance). They can put up a web site, post about the project and hope that Nintendo don't notice. The problems start when they seek to expose Gamedev.net to that risk.

What is the likely action? - In most cases I would assume a simple cease and desist letter and GD.net would immediately remove the offending material. However, there are companies out there who actively pursue trademark and other IP related infringements specifically in order to try and force a pre-court settlement. They know that companies will pay a settlement if it is likely to be cheaper than the cost of mounting a defense. they will often pursue any parties involved in the alleged infringement and specifically those that they think may have some cash. In other words they are less likely to actively pursue the (poor) individual who committed the alleged infringement and put more effort into attempting to prove the involvement of any company involved (such as GD.net), from whom they would have a greater chance of gaining a settlement.

The cost of responding to a cease and desist is minimal; but there is a cost. Any escalation above that and the costs rise dramatically.

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Original post by Tom Sloper
....what is it you're REALLY trying to find out?

What the Op is really trying to find out is NOT "will GD.net allow me to post (what I believe to be) a parody project".
The real question being asked is "will GD.net expose themselves to potential legal action and the associated costs(however minimal), because I want to use someone else's IP".

I certainly don't believe that GD.net has any responsibility to expose themselves to any level of risk and believe the current system whereby IP related projects are banned, unless the team can prove they have permission from the IP owner, is perfectly reasonable.


Well no. I know how to use the English language. If I had wanted to ask your question, I would have. I asked what I meant to. Don't be presumptuous and put words in my mouth. It reflects badly on you and makes you look like a douche - no offense but it does.

All I wanted to ask was whether GameDev would allow a posting of that nature. That's all. Your relatively confrontational post is silly because it's not like I went ahead and posted any projects dealing with the IP properties and then after being shut down, raised this issue.

The videogame industry has always been caught "is it art or is it not" paradox. All other mediums that are considered art DO allow parody, courtroom challenges or not, and this has been proven by history (and some really shitty movies).

All in all, THIS is discussion. Last time I checked, this wasn't the Help Wanted forum. Your knee-jerk reaction is quite telling however and in the end, I guess in your eyes videogames don't constitute art. More than that, on a personal level, you're kinda being awfully condescending. Tone it down.

And again, this is discussion. I don't have any projects in effect that deal with the IPs of any other company. But discussion on these things IS important.

The bottom line is that if anyone who wanted to step up to plate and make the swing, there is legal precedence that would stand there at home plate with them. Would there be IP challenges? Of course!

But there are parodies of IPs all the time - from Penny-Arcade to Family Guy. In the case of the videogame industry, I think they're relatively okay with it as long as that doesn't enter their respective medium. Once that does happen, there will be a huge court room fight, it will be on media sites everywhere, and winning or losing, the people who make that first step will get known everywhere.

And there is also the fact that although they may lose, they may also win. In that case the company suing would have to be pay for the legal costs of the winning party. And done right, the winning party would have a tidal wave of publicity going forward. It's a risk versus reward scenario - I just think your "OMG! We're GONNA' GET SUED TO OBBBBLLIIIVVIIION!" reaction lacks a certain amount of backbone, especially since once again - THIS IS JUST DISCUSSION.

Then again... you are from England? I don't know why you're commenting on something that discusses American Law. You don't apply to this conversation at all.

[Edited by - ZenDavis on February 19, 2010 11:07:15 AM]

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Original post by ZenDavis
The videogame industry has always been caught "is it art or is it not" paradox. All other mediums that are considered art DO allow parody, courtroom challenges or not, and this has been proven by history (and some really shitty movies).
I think you are missing the wood for the trees here: History hasn't proven anything, nor have bad movies. Instead, a series of very expensive court cases have been fought to secure parody as a legitimate application of fair use.
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Your knee-jerk reaction is quite telling however and in the end, I guess in your eyes videogames don't constitute art.
The relation of games to art has nothing to do with the issue. A parody movie can be taken to court just as easily as a parody computer game, and in either case, the onus is on the producer to prove that the movie/game is a legitimate use of parody.

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Well no. I know how to use the English language. If I had wanted to ask your question, I would have. I asked what I meant to. Don't be presumptuous and put words in my mouth. It reflects badly on you and makes you look like a douche - no offense but it does.

All in all, THIS is discussion. Last time I checked, this wasn't the Help Wanted forum. More than that, on a personal level, you're kinda being awfully condescending. Tone it down.

And again, this is discussion. I don't have any projects in effect that deal with the IPs of any other company. But discussion on these things IS important.

Then again... you are from England? I don't know why you're commenting on something that discusses American Law. You don't apply to this conversation at all.
You asked for GameDev's stance on help wanted posts for parody projects. Obscure replied with a detailed evaluation of the risk GameDev would be taking in doing so, and stated that they would not accept such posts.

Nowhere did Obscure personally attack you, and your attacks on his character are hardly befitting of an "important discussion".

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Instead, a series of very expensive court cases have been fought to secure parody as a legitimate application of fair use.

Did this happen in the past? Then it falls under history. Duh.

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The relation of games to art has nothing to do with the issue. A parody movie can be taken to court just as easily as a parody computer game, and in either case, the onus is on the producer to prove that the movie/game is a legitimate use of parody.

You're repeating yourself (and others and myself). We've all said as much. It's been repeated a hundred times now. Duh.

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You asked for GameDev's stance on help wanted posts for parody projects. Obscure replied with a detailed evaluation of the risk GameDev would be taking in doing so, and stated that they would not accept such posts.

Nowhere did Obscure personally attack you, and your attacks on his character are hardly befitting of an "important discussion".


http://www.thefreedictionary.com/patronizing

Look at definition number three. You can insult someone without vulgar or personal attacks by simply talking down to them. Don't tell me you didn't know this? Duh. (See what I'm doing here? In case you don't, it's a simpler, concise version of what Obscure did.)

All in all. Lets be cordial gentlemen. I've been fine with everyone's responses but Obscure can walk out of the thread. I didn't care for his tone.

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Original post by ZenDavis
I know how to use the English language....
All I wanted to ask was whether GameDev would allow a posting of that nature.

Then why didn't you just ask that in the first place?

Also:
Name-calling is uncalled-for. Let's try to keep it civil.
And please try to keep quoted text short and to the point.

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Original post by Tom Sloper
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Original post by ZenDavis
I know how to use the English language....
All I wanted to ask was whether GameDev would allow a posting of that nature.

Then why didn't you just ask that in the first place?

Also:
Name-calling is uncalled-for. Let's try to keep it civil.
And please try to keep quoted text short and to the point.


Because I thought you guys could make the connection between the bloc-o-text I posted in the OP and asking where the use of parody fell under it.

I mean it was the entire post from the Help Wanted section regarding IP usage, and the subject matter of parody inherently has to do with mocking an IP that usually, but not always, belongs to someone else.

I'm actually a bit shocked that the correlation wasn't made.

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Short answer (or at least my professional opinion) from the lawyer:

Until we get this site registered as a DMCA service provider, any posts containing proposals, content, or other information that may give rise to legal action from a copyright owner, regardless of the merits of that copyright owner's claims, are subject to deletion. This is why Obscure raised that point.

Also, for the sake of civil discourse, please refrain from being belligerant. It undermines any possible objective you may have.

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Original post by madelelaw
Short answer (or at least my professional opinion) from the lawyer:

Until we get this site registered as a DMCA service provider, any posts containing proposals, content, or other information that may give rise to legal action from a copyright owner, regardless of the merits of that copyright owner's claims, are subject to deletion. This is why Obscure raised that point.

Also, for the sake of civil discourse, please refrain from being belligerant. It undermines any possible objective you may have.


Well Obscure should learn how to be nicer in raising his points. There is a reason I was nice until he spoke up. I think he had the very paranoid idea that I was testing the waters to throw up an ad in the Help Wanted section for such an idea and was using this forum to see if it could pass muster. I have more than enough projects being developed that it's not something I have to worry about but I thought it was an interesting enough discussion that I could raise it here. Instead Obscure had to go all crazy Deer Hunter, post-traumatic, Russian roulette crazy playing, Vietnam vet on me. (no it's not a fair, or even adequate comparison. but still it's ridiculous enough to be funny.)

[Edited by - ZenDavis on February 20, 2010 7:40:55 AM]

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Zen, I have read and re-read this thread and still don't see where Obscure's post crossed the line of being condescending. As far as I can tell, Obscure re-phrased one of your questions which you took exception to, but in all honesty I don't think it deserved a multi-paragraph adhominem response. As others have stated, this is a professional board and you are responsible for your own conduct. Claiming you were attacked by another poster doesn't relieve you of maintaining a certain level of professionalism.

In response to your original questions (in the first post) I don't think you will find an official Fair Use FAQ from GD.net any time soon because it might be construed as legal advice. There are plenty of information resources on Fair Use available at Stanford website, the EFF and other such free speech foundations to provide guidance. I practice law (in the USA) and I am not going to jeopardize my license to explain to someone on an open forum how to argue a fair use defense (beyond general info) because if I am wrong (and with fair use that is certainly a possibility) then it's my behind that is hanging in the breeze. I certainly don't expect GD.net to take risks that I am not comfortable taking. As far as GD.net's policy in allowing you to recruit here, that is their call and I don't think that they would be out of bounds in limiting such posts.

If you want to recruit a team to test the limits of parody in video games, then I suggest you consult an attorney prior to releasing the game and obtain a good E&O policy to cover your butt/legal costs if you are sued (which is always a possibility). But I don't think you will find many Sancho Panza's on this forum to step up the plate for this type of project for the sake of increasing their reputation. I expect most developers would rather be known for quality games. Good luck!

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Original post by kdog77
Zen, I have read and re-read this thread and still don't see where Obscure's post crossed the line of being condescending. As far as I can tell, Obscure re-phrased one of your questions which you took exception to, but in all honesty I don't think it deserved a multi-paragraph adhominem response. As others have stated, this is a professional board and you are responsible for your own conduct. Claiming you were attacked by another poster doesn't relieve you of maintaining a certain level of professionalism.


I see you what you've said... but what I think you're really trying to say is that you're excited to see someone stand up for themselves against a party that is taking a knee-jerk, the sky is falling overreaction to a simple question. Thank you for your support. It means a lot to me, the posters of GameDev, and the other mods who have been put under the thumb of Obscure for far, far too long. ::wink, wink, nudge, nudge:: ^_^

Quote:
In response to your original questions (in the first post) I don't think you will find an official Fair Use FAQ from GD.net any time soon because it might be construed as legal advice. There are plenty of information resources on Fair Use available at Stanford website, the EFF and other such free speech foundations to provide guidance. I practice law (in the USA) and I am not going to jeopardize my license to explain to someone on an open forum how to argue a fair use defense (beyond general info) because if I am wrong (and with fair use that is certainly a possibility) then it's my behind that is hanging in the breeze. I certainly don't expect GD.net to take risks that I am not comfortable taking. As far as GD.net's policy in allowing you to recruit here, that is their call and I don't think that they would be out of bounds in limiting such posts.

If you want to recruit a team to test the limits of parody in video games, then I suggest you consult an attorney prior to releasing the game and obtain a good E&O policy to cover your butt/legal costs if you are sued (which is always a possibility). But I don't think you will find many Sancho Panza's on this forum to step up the plate for this type of project for the sake of increasing their reputation. I expect most developers would rather be known for quality games. Good luck!


I think I could probably find plenty of people who might be willing to take the time and energy on something like this. Plenty of modding communities are built on the foundation of working with other IPs. If I relied only on GameDev for my team building efforts, I would still be stuck trying to find a programmer for iPhone development instead of having four ongoing projects making their way into completion towards multiple platforms.

Not to say that I don't respect the site or am not thankful for it. GameDev is the site that got me to believe that I could make games for myself and I love all you guys for it. However it's a matter of principle where I just simply do not put up with condescending attitude from anyone. I wasn't trying to insult the guy.

I simply stated how I felt he was coming across and I meant it one hundred percent. He could have said the same thing without rambling on about what I was *REALLY* asking.

I mean you tell me. What was the purpose of all that extra text other than to speak down to me? And if you should respond that you can't speak for him, then I think you're being a little disingenuous.

Also you've stated a logical fallacy when you say most developers would rather be known for quality games rather than a title based in parody. To say that a parody project couldn't be a quality game at the same time is exceedingly short-sighted. The bottom line is that my question was answered about three posts ago, prior to Obsure really even posting anything.

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Original post by ZenDavis
All I wanted to ask was whether GameDev would allow a posting of that nature. That's all.
From where everyone else is standing, this is the exact question that Obscure answered, with a reasonable and detailed analysis of the risks GameDev would be opening themselves to if they did allow it.

If you wanted only a yes/no answer, perhaps you should have specified that from the start.

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Original post by swiftcoder
Quote:
Original post by ZenDavis
All I wanted to ask was whether GameDev would allow a posting of that nature. That's all.
From where everyone else is standing, this is the exact question that Obscure answered, with a reasonable and detailed analysis of the risks GameDev would be opening themselves to if they did allow it.

If you wanted only a yes/no answer, perhaps you should have specified that from the start.


To reiterate to my thoughts that I was editing in above -

He could have said the same thing without rambling on about what I was *REALLY* asking.

I mean you tell me.

What was the purpose of all that extra text other than to speak down to me? And if you should respond that you can't speak for him, then I think you're being a little disingenuous.

This is the correct post Obscure should have made. In fact after reading it without all his extra nonsense, Obscure sounds like a pretty darn smart guy.

Quote:
Original post by Obscure
The proof issue is a vital part of the answer because, until someone actually goes to court and the judge rules in their favor, the matter remains unproven. Just because someone believes that their project constitutes a parody that doesn't mean that the court will agree. Further more, as the matter is unproven, there remains the chance that the IP owner will take some form of action to prevent the use of the IP.

That is fine if the project team are willing to take on that legal risk (and have suitable indemnity insurance). They can put up a web site, post about the project and hope that Nintendo don't notice. The problems start when they seek to expose Gamedev.net to that risk.

What is the likely action? - In most cases I would assume a simple cease and desist letter and GD.net would immediately remove the offending material. However, there are companies out there who actively pursue trademark and other IP related infringements specifically in order to try and force a pre-court settlement. They know that companies will pay a settlement if it is likely to be cheaper than the cost of mounting a defense. they will often pursue any parties involved in the alleged infringement and specifically those that they think may have some cash. In other words they are less likely to actively pursue the (poor) individual who committed the alleged infringement and put more effort into attempting to prove the involvement of any company involved (such as GD.net), from whom they would have a greater chance of gaining a settlement.

The cost of responding to a cease and desist is minimal; but there is a cost. Any escalation above that and the costs rise dramatically.

I certainly don't believe that GD.net has any responsibility to expose themselves to any level of risk and believe the current system whereby IP related projects are banned, unless the team can prove they have permission from the IP owner, is perfectly reasonable.

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