Fair Use in Video Games – Part 1: Fair Use Basics
‘Fair use’ is generally in reference to copyright law, as fair use in trademark law is much simpler and far more literal. To say the least, fair use is a heavy hitter in copyright law—meaning it’s a complicated subject, but because it potentially offers a very strong defense to using another’s content, it’s incredibly important to those developing new projects.
If you’re new to copyright law in general, check out the Copyright Office’s circular. I’ll probably write about copyright law in another post…but this one is already a two-parter, so I’m not going to make it longer by going over those points.
This first post will cover the factors within fair use. The second part to this post will cover how fair use applies to video games—both from the user’s side as well as from the developer’s side (you can safely assume they differ).
What’s Protectable in Video Games Under Copyright Law?
If you’ve never talked to a lawyer before, believe me when I say that if you ask them a question like this (or anything, really), their go-to answer will likely be ‘it depends.’ They’re not playing coy with you…it really does depend on the specifics of your project, what you’re copying, and how you’re using content. So, just try to wait patiently until they start drilling you with questions, since that’ll be their next go-to move.
It’s fairly safe to say that, generally, the artwork, artistic style, lore, characters (to an extent—the more back story, quirks and development there is, the more protection you get), music, UI/HUD design, plot (often times), code (to an extent), the engine, and much more are protectable under copyright law. Depending on the uniqueness of the mechanics, some game mechanics could be protectable too.
Note: the items above (and many not mentioned) are also potentially protectable under trademark and patent law, but that deserves a whole other post. I’m seriously testing my limits by keeping this just to copyright law, so bear with me.
While those things are protectable under copyright law, in 2012-2013 we saw Zynga’s assembly line release of cloned games and apps. There is definitely a line as to what is protectable under the law, what is considered fair use, and what are deemed ‘non protectable elements’ within a game—and the lawyers at Zynga expertly toe that line.
Mario Bros & Giana Sisters (to show it’s not just Zynga)
Radical Fishing (Vlambeer) and Ninja Fishing Clone (Gamenauts)
Minecraft (Mojang) & Infiniminer (Zachtronics)
(There was some code accidentally leaked from Infiniminer, but it still shows how cloning can operate.)
So, what is fair use, and how does it apply to video games?
Fair Use In Copyright Law
Fair use is a bit murky, meaning that while there are factors a court looks at to determine fair use, it will never EVER be guaranteed how the court will come out. It will always be a case-by-case analysis, and even if someone did the exact same thing you’re doing and won, that doesn’t mean you’ll win the argument that your use is fair.
Still, fair use hangs up there like a star to wish upon, so people keep trying, and there will always be success and failure stories to tell. Without those attempts, we wouldn’t have progression (or blatant rip-off clones), so fair use acts as a balancing scale.
MYTH: ‘I’m just using this as a classroom handout for my 90 students, so it’s okay to make 90 copies of the entire book…because it’s for educational purposes.’
No, fair use is a test the courts use to determine whether someone’s use of another’s content is actually fair (legal), or if it’s not fair (infringement). The courts look to four factors when determining fair use, but they’re not all weighed equally. How they’re weighed mostly depends on the use made by the alleged infringer.
Nature of the Work
Fictional works (such as video games, music videos, poems, etc.) tend to have much higher levels of protection than factual works. When I say ‘factual’, I don’t mean ‘nonfiction’—I lump that in with ‘fiction’ because the arrangement and selection of facts and the discussion that goes into analyzing those facts is just as protected as fictional works.
No, I mean factual, as in lists of people’s names and addresses, or the history of temperatures for a particular city, or a list of all the capital cities in the world. Those are facts, and especially if they are all-inclusive (meaning no selection or arrangement made on the part of the drafter), then there is possibly less protection for another’s use of that work, under this factor (since facts aren’t protected, usually. There are limits, of course.).
Purpose of the Use
This one is best explained by example.
The Foo Fighters have a song called The Pretender. The song is used by the Foo Fighters for entertainment purposes: to be listened to, as well as to be viewed in conjunction with the music video. So, if you have a college project in which you have to film and edit your own music video, and you decide to use the Foo Fighter’s song in your music video…you’re using the song for the same purpose as the band (not that I did that, or anything), which isn’t fair use. It was still cute, though, we had one guy play (almost) all the band members at the same time. Huzzah for beard paint!
However, if you use a song like Anaconda in a documentary film (or any project, really) to criticize or critically comment on societal norms and trends over the course of several generations, then the documentarian’s use of the song might have a stronger chance at arguing fair use, because they’re not using the song for the same purpose as the original creator.
Do you see? The courts want to know whether you’re using the copyrighted content in the same way as the original is used. Oh…I guess I could have just said that. Parody is another great example of changing the purpose of the use of content (because it’s a critical commentary).
MYTH: “If you only take a few seconds, like under 15 or 30 seconds, then it’s ‘de minimus’ use and it doesn’t count as infringement. Yeah, that’s right, I used a legal/Latin term, so it must be right!”
The fact that I called it a myth should automatically indicate to you that it’s not true. If you posted the last six seconds of American Idol’s final episode (the part where they announce the season’s winner), you can be darned sure that the Show is going to have fits over your use of that clip on YouTube, since those six seconds were the whole point of people spending an hour watching that episode (and, more importantly to them, the ads).
However, there are also situations in which you could take HOURS of another’s work, use it in your own, and still not be infringing the work.
This factor looks at whether you took the heart of the piece. Don’t steal hearts, it’s not nice.
Effect on The Original’s Marketplace/Economy
If your use of the content makes the original owner lose money because your content replaces the need for the original work in the marketplace…ooo…you’re going to the principal’s office. And by ‘principal’s office’, I mean court. Say goodbye to that trip to Hawa’ii.
Courts tend to look very harshly upon those who profit on another’s work—BUT—most especially if that profiting actually affects the profiting the original artist can do because your work replaces the need for the original.
That’s not to say that you can’t monetize your use of another’s content… it just needs to fall within the protection of fair use.
These are the factors of fair use in their most basic form, and it’s definitely not a math equation that you can solve up front—there’s a lot of grey area in there that can cause you all sorts of problems.
- The factors are not weighted the same by a judge –depending on the judge and your use, they may weigh certain factors more heavily than others, and you’ll likely not know which way that will go.
- Have a lawyer look at your work (it would speed things along to also show them the original work from which you’re borrowing stuff) and have them assess your risk. They’ll often even suggest ways to reduce your risk (unless you don’t use another’s content, it’s unlikely they’ll ever tell you you’re 100% okay…there will always be some risk of getting sued).
Disclaimer: I’m not a licensed attorney, and none of this information should be considered legal advice.