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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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