Fair Use In Video Games – Part 2: Fair Use by Users and Devs

Welcome to Part 2!


My heart sings with…actually, my voice is bad enough, you don’t need to know how my heart sings, knowing you’ve returned for more torture.


Fair Use By Game Users

What is most often copied by users is either gameplay footage or characters/storylines, rather than making other games with copyrighted content. Since the copyright holder (publisher) has the right to display, distribute, and make copies of their game, without some fair use defense, a user’s use of protected matieral is going to fall into the ‘infringement’ department.


Fair use of video games by users is most typically seen with gameplay reviews, such as by sites like “Let’s Play.” Granted, sites like that probably have a license, since they’re so big and offer advertising opportunities to publishers, but the theory should be the same that by offering commentary or criticism about the game, they are making a new work which constitutes a different purpose of the use of the game footage.


Myth: “If I have running commentary over my game play footage, the publisher or ContentID System doesn’t have a legal right to take down my video.”


While it is true that having commentary or criticism/reviews playing over the footage will significantly reduce your risk of successfully getting sued for infringement, it doesn’t mean that the copyright owner loses all rights to enforce their copyright over your use.


This is a tricky subject for two reasons: 1. It depends on what you’re saying and 2. How the ContentID system works on YouTube.


  1. What Are You Saying?


Critical commentary really helps with fair use in this case. If you’re reviewing a game, such as assessing the quality of the graphics, the storyline, mechanics, etc., then the use of the gameplay footage is totally different than the original use, and has a stronger argument for fair use.


If you’re just talking about how much you love playing video games, in general, and you’re not saying anything critical (doesn’t have to be negative, it just means you’re analyzing the game), then that’s not really the same thing, as your commentary doesn’t change the use of the gameplay footage into a new piece of work. This is because people won’t necessarily watch your video for YOUR COMMENTARY, as it doesn’t add anything new to the experience of the gameplay footage.


Parody is another great way to (potentially) successfully use another’s content fairly. Remember the South Park episode about World of Warcraft? Dude, seriously? Trade chat went nuts for WEEKS after that. World of Warcraft even added that sword, I think. But, it’s a parody of the game because the episode is commenting on assumptions about gamers, games, and the industry, as well as what MMORPGS like that ‘can do to people’ by way of addiction.


Again, it’s not a great example of pure fair use, since there’s no doubt in my mind that they called up Blizzard and were in cahoots with them for the entire episode (meaning they either had a license or other kinds of official permission—most likely to gain better access to footage). Still, the theory holds true that if Blizzard had declined permission, they could have further stretched the point they were trying to make and could have made it fair use, much like the show does with other things (Lord of the Rings, pop culture, etc.).


  1. The ContentID Nightmare


The other problem is the ContentID system. It’s a system, not a human. That means it looks for ‘fingerprints’ of footage, and when it finds unofficial copies, it takes them down. No human (as far as I know, so take that with a grain of salt) looks at it until someone protests (and even then, maybe not).


Thus, if your legitimate fair use gameplay review is taken down by the ContentID system, it’s not necessarily because your use wasn’t fair—it’s because it detected a copy and took it down.


This is different than if you get a DMCA (Digital Millennium Copyright Act) take down notice. A DMCA takedown means a person “looked at” the footage and decided it wasn’t fair use (lol, as if they bother). Whether they do or not will depend on the company.


In either case, before you send a Counter Notice (to get your content back up), there are some risks you need to take into account (like you’re agreeing to be sued in the company’s country/state/jurisdiction if they feel you’re really not the copyright owner), for which a lawyer is going to be your best bet. I’ll post an article about DMCA takedowns soon.


Myth: “If I make a fan film, it’s okay because I’m filming my own actors and have my own script. Also, if they haven’t taken it down, then it’s fair use.”


Wrong. If you’re making a Borderlands fan film with awesome cosplayers and your own script, you’re already walking down the infringement path. That’s not to say that you can’t do it, but there are some things to take into consideration before you post it online and put ads all over it.


  1. You don’t own the characters, what they look like, or how they act.

  2. You don’t own the world, lore, monsters, music, villains, etc. if they came from the game.

  3. Just because they haven’t taken it down doesn’t mean they can’t or won’t.


Because of those two things (at the very least), that means you’re using someone else’s developed characters, world, and potentially other protectable aspects of the game in your film. As such, they would be well within their rights to take down your video, if they felt like it—even if you used your own new script and actors, because you’re still basing the entire film on their intellectual property.


Okay, bad news is over. Good news is that most game companies look very favorably upon fan films, as it increases the connection fans have to the game, it’s free advertising, and it extends the life of their game. As such, many companies have posted policies on their websites about how they deal with fan films.


This isn’t fair use, mind you, it’s a limited license. For instance, Microsoft and Blizzard have separate policies (separate from terms of use, etc.) discussing your rights and limits for making films based on their content. Other companies, like Minecraft and Valve, state their support for, and limitations on, creating derivative works in their regular terms of use. They tend to restrict your use of their content to noncommercial use, but otherwise have few limitations. Some even may allow you to enter your film into contests, so be on the lookout for those kinds of rights.
As mentioned, it’s never a slam dunk that you will be entirely safe with fair use as a defense. The lawsuits in this area are highly fact specific, which means judges will analyze your use of infringing material separate from anyone else’s successful uses to determine whether it is fair use or not.


This means that another film very similar to yours could be found as protected by fair use, whereas your use might not be found as protected. It’s just good sense to talk to a lawyer before investing in a fan film, to cover your bases and reduce your risk.


Finally, just because a copyright owner doesn’t take down your work doesn’t mean they can’t or won’t. They may not mind your content, they may not care, or they may be waiting to see if they can monetize your use. There are all sorts of reasons and strategies companies have about dealing with user-generated content, so just because there’s been no reaction doesn’t mean there can’t be, or won’t be, in the future.


Fair Use by Developers


This topic slides more into a discussion about game clones, about which there has been significant discussion since 2012.  A video game clone is a video game which is heavily inspired by or is very similar to a previous, popular game. The term is typically used in a derogatory sense, implying a lack of originality. However, clones can be anything from a complete rip-off to a legitimate improvement on the original idea, which is utilized into a new game.


Generally, people seem to be either completely fine with clones as a necessary evil, or they absolutely hate them and think they should be drawn and quartered. And then thrown off a cliff. And maybe then set on fire.


On the one hand, clones of games serve to spur creativity and prompt better games to be developed, such as through the use of mods on games like Doom, Warcraft III, etc. On the other hand, clones are an easy avenue to maximize profits by lazily copying others’ good ideas.


Most clone cases settle, leaving no precedent for courts to follow, which makes the area very murky regarding rights. This happened with Spry Fox and 6 Waves over the Triple Town/Yeti Town debacle, as well as with EA and Zynga over SimCity Social and The Ville. The Spry Fox  case actually had an initial decision allowing the case to proceed on copyright infringement grounds, but, sadly, there was no dice for us regarding a final decision.


triple town yeti town

Triple Town (Spry Fox) vs Yeti Town (6Waves)


Without a final decision on either of those two cases, we’re stuck with the Tetris case. Granted, the case was in 2013, so it’s a recent decision, but it was still about a game that was released in 1984. Tetris doesn’t exactly have the depth of features or complexity of mechanics that games have today. On the other hand, because the game is so simple, the judge was able to strip down the protectable features to its bare bones, so it does, at least, give us an idea of what courts might find as being protectable features in a game (e.g. what you either need to worry about copying in your own game, or what you can enforce against others to get them to stop using your stuff).


While Tetris won its case against Mino, Tetris didn’t get all the protection they claimed they should have received on their mechanics. Tetris believed that it had significant copyright protected expression in the Tetris game –over 16 elements ranging from the size of the pieces, the piece movement, and the musical themes.


This case is a bit different than most clone games, because Mino was up front about the fact that they were heavily inspired by Tetris and wanted to create a game as similar as possible to the original.



 Tetris & Mino

The Tetris court said that “without being told which is which, a common user could not decipher between the two games. Any differences between the two are slight and insignificant.”

In general, shapes, facts, common game mechanics, statistics, and simple scoring systems involving math functions are all expressly not protectable in the U.S. (there were quite a few cases over that since the 1980s).


Conversely, sound effects, music, and aesthetic effects not necessary to the game (like the ghosting effect when pieces fall) are all almost certainly protectable. This is HUGE, to be reviewed in ‘take-aways’ below.
Below are some examples of elements in Tetris that were found to NOT be protected, and some that were potentially protected.

NOT found to be protectable:
The ability to rotate pieces
Game over being triggered by moving pieces filling up the screen beyond the top of the grid
Earning points by filling lines
Shapes falling from the top of the screen fitting into one another
Potentially protectable:
The movement and rotation of the pieces as they descend,
The dimensions of the matrix (20 squares x 10 squares),
The change in block color when pieces are locked in, and
The way the screen fills with  blocks once a game ends.


 Scene a Faire

Wikipedia summarizes this concept as: is a scene in a book or film which is almost obligatory for a genre of its type. In the U.S. it also refers to a principle in copyright law in which certain elements of a creative work are held to be not protected when they are mandated by or customary to the genre.


This came up when someone was trying to make a stand-alone mod of a game, and they copied over a lot of the art assets from the original game into their mod, even though they weren’t really using all of them. The mod was a totally different genre than the original game, and, frankly, they ended up having to redo a lot of the art assets (in reality, it was best that they redid ALL of the art assets to avoid infringement for something silly, like a glove).


Their question was whether they had to redo things like cobblestone, grass, or old, rusty pipes. It was somewhat of a toss up, because technically, those things fit within their new genre as being not only customary, but mandated, given the time in history in which the game was set. While it would be safer to redo all art assets, it was arguable that those pieces were not protectable under copyright law because they fell within scene a faire.


This is another one of those situations in which you would want a lawyer to look over your game, your use of the content, and the customs within the genre to give you a good indication about the risk level involved with not changing those kinds of assets.




So, while we may not have absolutely clear guidelines to follow for what is protectable and what is not, common sense can help in a big way. Since source code is rarely what’s actually copied in game clones, take stock in the game to see what is strictly functional, and what is aesthetic.


If the visual representation (style, design, etc) could be represented in another way, then it’s likely protected.


If, however, the feature is so intrinsic to the function it serves (like a ‘save’ or ‘exit’ option on a menu), then that is probably afforded less protection and can be used in other games.


Reminder: this isn’t a catch-all guide to what can be used fairly from another game—it’s just a reference to know what some of the history has been, as well as to know where some pitfalls may lie when creating a game or project based on someone else’s work.