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Oakioats

Referencing other media in video games...law issues?

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Oakioats    102

I am in the works of designing a game and I want to add some easter eggs. For example, one of the eggs is that when the player finds this hidden area they get to meet the "grand cosmic owl". This experience is very brief and made for kicks. Thing is, "the grand cosmic owl" is a cartoon show reference from Adventure Time. Do I need licensing to use their character? 

 

I know games such as zelda easter egg mario and mario games may easter egg Samus aran. I assume its because these characters are all Nintendo.

 

Asides from a cartoon show character, what about book characters, movies characters, etc...? Also, I am looking to monetize of my game.

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Polama    1105

I'm not a lawyer, but you seem to have a defensible position. I might have misused the tool, but it doesn't look like 'grand cosmic owl' is trademarked, so it's just a copyright thing. They have copyright to the creature, but if you draw your own version, you should have a strong 'de minimis' case. If you parody Adventure Time in the scene, doubly defensible.

 

That said, fair use is an 'affirmative defense', meaning if you're sued you can go to court and argue fair use, but you do actually have to go to court and make the argument. Thus it may be the case that you're in the right legally, but would you really want to hire a lawyer and get that affirmed in the court if push comes to shove? If not, it's probably easier to cut out the easter egg.

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frob    44962

Do I need licensing to use their character? 

Yes.

 

There are very few exceptions to copyright and trademark law.  Many game developers seem to think that the parody exception means any attempt at humor. It does not. Parody is an extremely narrow defense and it does not apply to 'Easter Egg' type content.

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Polama    1105

Why don't you guys think this qualifies as de minimis usage fair use? Doesn't seek to supersede Adventure Time, doesn't have any clear effect on Adventure Time's value, is low in amount and substantiality (if using custom graphics), seems relatively transformative in that it's an alternate depiction in an alternate media. Content hidden away, not intended to be seen by regular players seems like a pretty de minimis "the law doesn't deal in trifles" usage. Since "Cosmic Owl" doesn't appear to be trademarked, this would strictly be a copyright thing.

 

Again, there's the practical aspect of do you want to worry about defending, but I find the question an interesting one and would be interested to hear why people think it clearly falls outside of fair use.

 

It's a different scenario, but here's an interesting article I read a while ago by a person who came up with a game idea (you have a hand of cards referencing pop culture characters, and have to explain why one of yours is the best romantic pairing with a target card), didn't build it (everyone said you'll be sued), and eventually somebody else invented the same game and did build it (de minimis fair use)

 

http://boingboing.net/2014/06/30/the-card-game-we-couldnt-mak.html

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frob    44962


Why don't you guys think this qualifies as de minimis usage fair use?

It doesn't qualify because it isn't the least amount possible. 

 

In this case, the least amount possible is ZERO.  There is no need for the IP to be in there at all.  

 

The element is thrown in gratuitously. As an 'Easter Egg' it is content that is not essential to the game, it just happens to be an inside joke to the people who happen to find it.

 

 

Now if it were a proper parody that would likely be covered. But that would require using the characters to make a strong narrative about Adventure Time, maybe pointing out some absurd element of the show, or doing some other commentary.  But even then it must be kept to a reasonably low level of use, only using what they need for their social commentary.

 

Alternatively, if part of the game included making a list of top characters then de minimis use might mean only their names and not their picture, or using only their picture for nominative uses. 

 

But what was described is not either of those.  It was throwing in an element from another product not because it is essential for commentary, not because it is a parody of Adventure Time, but because they hope using the other company's IP will adds value to their own.  And that requires licensing.

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Polama    1105

 


Why don't you guys think this qualifies as de minimis usage fair use?

It doesn't qualify because it isn't the least amount possible. 

 

In this case, the least amount possible is ZERO.  There is no need for the IP to be in there at all.  

 

The element is thrown in gratuitously. As an 'Easter Egg' it is content that is not essential to the game, it just happens to be an inside joke to the people who happen to find it.

 

 

Now if it were a proper parody that would likely be covered. But that would require using the characters to make a strong narrative about Adventure Time, maybe pointing out some absurd element of the show, or doing some other commentary.  But even then it must be kept to a reasonably low level of use, only using what they need for their social commentary.

 

Alternatively, if part of the game included making a list of top characters then de minimis use might mean only their names and not their picture, or using only their picture for nominative uses. 

 

But what was described is not either of those.  It was throwing in an element from another product not because it is essential for commentary, not because it is a parody of Adventure Time, but because they hope using the other company's IP will adds value to their own.  And that requires licensing.

 

 

De minimis means "too trivial to merit consideration", not the least amount possible.

 

Futurama has frequent star trek homages, and featured a beholder in a brief cameo. Parks and Recreations built a prop iron throne from game of thrones, and a character purchased and wore a batman outfit. Family Guy frequently references other television shows in non-parody fashion.

 

To my (again, not a lawyer) reading a minimal, inconsequential reference is protected and the use of copyrighted characters in tv and movies seems to bear that out. It's a gray area you might have to defend, and lawyers are expensive, so there's a practical reason to be strict, but I don't think other media bear out the idea that any non-parody or non-nomative usage is strictly forbidden.

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Tom Sloper    16062

Futurama has frequent star trek homages, and featured a beholder in a brief cameo. Parks and Recreations built a prop iron throne from game of thrones, and a character purchased and wore a batman outfit. Family Guy frequently references other television shows in non-parody fashion.


And you know that those uses were without permission? The OP needs a lawyer's advice, if he wants to pursue his idea.

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bschmidt1962    2300

Here is a blurb from Stanford's fairuse.stanford.edu page. http://fairuse.stanford.edu/overview/fair-use/four-factors/

This sounds more like the second case below (which was ruled not to be a De Minimus use). (bold highlight mine).

 

Too Small for Fair Use: The De Minimis Defense
 
In some cases, the amount of material copied is so small (or “de minimis”) that the court permits it without even conducting a fair use analysis. For example, in the motion picture Seven, several copyrighted photographs appeared in the film, prompting the copyright owner of the photographs to sue the producer of the movie. The court held that the photos “appear fleetingly and are obscured, severely out of focus, and virtually unidentifiable.” The court excused the use of the photographs as “de minimis” and didn’t require a fair use analysis. (Sandoval v. New Line Cinema Corp., 147 F.3d 215 (2d Cir. 1998).)
As with fair use, there is no bright line test for determining a de minimis use. For example, in another case, a court determined that the use of a copyrighted poster for a total of 27 seconds in the background of the TV show Roc was not de minimis. What distinguished the use of the poster from the use of the photographs in the Seven case? The court stated that the poster was clearly visible and recognizable with sufficient observable detail for the “average lay observer” to view the artist’s imagery and colorful style. (Ringgold v. Black Entertainment Television, Inc., 126 F.3d 70 (2d Cir. 1997).)
 

 

 

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DerekL    876

Just because it is fair use doesn't mean they wont sue you. Bigger companies can still bully you with their lawyers if they feel like it even if it would be fair use. The law is never a clear line which is why we have judges, to make these decisions based on the facts. So eevn if you do consult a lawyer and he says its good, that doesn't stop them from taking you to court.

Easiest thing is to ask for permission first. If not then talk to a lawyer on fair use.

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Ravyne    14300

While I personally think that the de minimis argument should probably have broader bearing than it currently does, you can somewhat skirt the issue by applying a level of parody to the object or reference you actually mean to invoke. GTA has always done this by creating parodies or proxies of real-life cars -- they have attributes and styling cues that are similar to the real-deal, but aren't, and don't use any trademark from the authentic one either.

 

This approach is a little harder to apply to easter-eggs, because the knee-jerk reaction is that they feel less easter-eggy if its not the real thing, but I think that doesn't actually have to be true. For example, if you wanted a Mickey Mouse cameo, you could probably come up with parody of him, or a stand-in that invokes the authentic article through styling rather than likeness, and those would likely be safe, and yet everyone would still get that it's kinda-sorta meant to be Mickey Mouse -- you can lose the threat(*) of a lawsuit without losing the joke.

 

 

(*) As always, I am not a lawyer, nor are most on these boards, and even if some are, their advice here on this forum is not legal advice. Your best course of action is always to consult a lawyer who understands not just IP issues but IP litigation -- you can be threatened or sued even if your use is non-infringing, and you won't likely recoup your defense costs even if found innocent. One of the many services a lawyer will provide you is advising you of your risk relative to your intended actions -- they're not just there to assure you that you'll win in the case that you are sued, and its always cheaper to avoid litigation entirely.

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