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EyalD

Law | Fair use, referencing and copyrights

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Let me first start by saying that I have read the FAQs and I'm either too stupid to find it or the answer to my question is not there.

 

So, recently I've been thinking of a new game concept that will require me to use some big games (AAA Games) references,

The use and referencing of these games will only be small and placed as a parody/satire.

 

By referencing I mean quoting one line or even using a picture of a similar character.

The identity of the referenced game will be clear, though it will also be clear that it is used  as a parody/satire.

 

I saw the explanation about the Fair use, and I'm still not sure it is it.

 

Is referencing legal? is there anyway around it? (similarto old Pro Evolution games using fake names and symbols)

 

If this question is out of place / stupid I'm truly sorry as this is my first topic on this forum.

 

Also, I'm sorry if my English bothered anybody :P

Thank you very much, Eyal. 

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You really need to talk to a lawyer about specific uses. Fair use is something for the courts to decide. Even if you win a suit against you, can you afford to go to court against big companies with deep pockets.

You cite pro evo using fake names when they don't have licenses. EA has recently settled a lawsuit with college football players regarding using their likenesses. They used fake names as well, yet they still were taken to court. While EA technically didn't lose the lawsuit it still cost them millions of dollars in payouts and legal fees.

You really need to have a lawyer assess your risks of litigation and you need to be ok with those risks before proceeding.

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The use and referencing of these games will only be small and placed as a parody/satire.

By referencing I mean quoting one line or even using a picture of a similar character.

The identity of the referenced game will be clear, though it will also be clear that it is used as a parody/satire.

 

What does your lawyer advise? You'll need to show your lawyer some specific examples of exactly what you plan to do.

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Its amazing how fast (and helpful) comments submitted here, thanks to everone how answered me.

Since you mention fair use specifically, it sounds like you are in the US referencing US law. (In other nations you would likely have mentioned "fair dealing" instead). If you are in another nation, please specify what nation it is.


concept that will require me to use some big games (AAA Games) references

You might consider changing your concepts.

Parody is an affirmative defense. It says "Yes, I am infringing on copyright. However, it is allowed because of a very specific exemption. If the judge disagrees and says my use is not part of the exception, then I fully admit that I am infringing."


referencing of these games will only be small and placed as a parody/satire


Satire and parody are different. Do you know the difference?

Parody is an exception, but most people who claim they are using parody are really just using either humor or satire. Neither of those are protected. Parody is often funny, but not always.

To qualify for the parody exception, among other things you must use the object itself as a social commentary about the item. Both the SCOTUS and the appeals courts have repeatedly stated several requirements. It is not enough to make fun of something, you absolutely must be making a comment about the thing being parodied.


As a good example, consider the youtube clip depicting Mario and Bowser and assorted koopas and goombas in their reverse roles. Mario was depicted as invading Bowser's kingdom, murdering thousands of innocent creatures. After the death toll was high enough, they started defending themselves with Bullet Bills and eventually airships. Princess Peach was even in the castle with King Bowser trying to negotiate reparations for Mario's destruction.

As a bad example, If you used Mario and Bowser and the rest to make a commentary about how society is bad, how wars are evil, and how states should secede from countries, that is not parody. Parody must make a commentary about the thing itself, and no matter what you may be saying about politics, the use of the Mario characters does not make a commentary about Mario or Nintendo's products.

(Yay Wikipedia for a list) Some of the specific cases that succeeded with a parody defense include "The Wind Done Gone", a parody of Gone with the Wind telling events from the opposite side, the slaves rather than the slave masters. Mattel lost to a parody defense when someone made videos of Barbie dolls being cooked in an oven and otherwise consumed as a parody to the ads and videos by Mattel depicting Barbie in the kitchen and doing positive things, instead being the victim of negative things in similar situations.

An example of a loss, someone copying a puppies photograph but using it as a commentary on society at large rather than a commentary on the original photograph is not parody. The sculpture did make a social commentary. The sculpture had its own artistic merit. But ultimately it was infringing and was not covered under the parody exemption because the sculpture made no commentary about the original artwork it was imitating.


quoting one line or even using a picture of a similar character


That's another sign that it probably isn't a real parody. If you are using Mario as an example, are you using it to make a statement about Mario or Nintendo? With just one line it is unlikely to be an actual parody. Do people hear your one line comment and think "Wow, Mario is a jerk!" or do they think something unrelated to the thing being parodied?

The parody fair use exemption is very narrow. Humor is not parody. Satire is not parody. Insults are not parody. Social commentary is not parody. Comedy is not parody. Imitation is not parody. You must keep your otherwise infringing use to a minimum, and ensure that every moment is an actual parody.
Thank you so much for the detailed comment.

I still belive that this is going to be a parody, an example of using one line as a parody is about the game portal, quoting the ever annoying witly and than blowing his head off.

But i guess i will probably change the concept, instead of making a parody about specific games ill build,it around genres (parody about the shooting genre, the music games and so on).

Thanks again!

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I still belive that this is going to be a parody, an example of using one line as a parody is about the game portal, quoting the ever annoying witly and than blowing his head off.

 

Still dangerous. 

 

Do not take the parody route until after talking with your lawyer. 

 

If Valve doesn't like it or doesn't appreciate it or in any other way wants to protect their property, then they can still send their attack lawyers against you. It will probably start with a C&D demand, or possibly a takedown order. Do you really want to finish your game and then immediately have it taken down by ISPs who are bound to remove it from a DCMA request?

 

And since parody is an affirmative defense, you *DO* need to go through the courts to assert the defense. You need to tell the judge "We are guilty of infringement, but it is okay in this case." The cost of asserting your defense could easily reach multiple hundred thousand dollars. 

 

Talk with your lawyer and be absolutely certain you want to take that route and understand the very real, very expensive risks involved.

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