Machinima and copyright law conference at Stanford, Apr 24-25


5 Responses to “Machinima and copyright law conference at Stanford, Apr 24-25”

  1. Anonymous says:

    I wrote about machinima copyright issues in “The French Democracy,” issue 88 of the online gaming magazine The Escapist:

    – Allen Varney

  2. Anonymous says:

    The state of the law is that contracts are honored. Virtually any game released by a reputable publisher will keep all legal rights vested in the hands of the developer/publisher. Accordingly, any derivative work (a.k.a. machinima) will be an infringement of the copyright holder’s exclusive rights to copy/to publicly display/to create derivative works.

    The only saving grace to this analysis is the ‘fair use’ doctrine in copyright law, which provides that activities which would otherwise be infringing of a copyright will nevertheless be permitted if they constitute a fair use of the material. The determination of what is ‘a fair use’ involves a convoluted and complicated analysis of several factors under a confused area of federal case law. Generally if the use is non-commercial, transformative [i.e. using the original coprighted material for something fundamentally different], and unlikely to detract from the mark for the copyrighted material then it will deemed a fair use. The problem arises from the fact that large companies can grind small litigants (a.k.a. most machinima creators) into the ground through a lawsuit which will at best be defeated upon motion for summary judgment (thus meaning substantial legal costs for discovery, preliminary motions, depositions etc.). Unfortunately, the doctrine of ‘copyright misuse’, which is aimed to innocent non-infringers from improper bullying by overzealous content holders, lacks any real teeth so as to serve as bulwark against such strongarm litigation tactics.

    Even if the machinima artist can jump through the proverbial ‘fair use’ loop, however, he or she will nevertheless face potential legal penalties by way of the Digital Millenial Copyright Act. This act supplements traditional copyright by providing penalties for circumventing technological protections sold alongside content. This means that if you use a program to bypass a game’s DRM or if you use a hack to gain camera control access to a game’s engine beyond its out-of-the-box interface, you are potentially further liable.

    In short, machinima artists are allowed to exist at the pleasure of the games they use to make the material. If any publisher/developer determined it was in their best interest to terminate a machinima project [i.e. it was worth the cost], they could easily do so.

    In the real world most game developers/publishers either don’t know or don’t care about machinima projects. Some forward thinking companies even recognize the potential opportunities for free-advertising/marketing that machinima projects can create (ex. look at Red v. Blue).

    However, the potential for censorship remains. If a machinima project has the potential to reflect poorly on the underlying game/assets used to create it, the law provides a plethora of avenues through which the content owners can easily impose their will upon the machinima creators.

    Advice: Find the game makers/developers with the most open/forward thinking policy and create there. Hopefully over the long scale the industry/market will recognize the benefits of machinima and respond with improved tools/support.

  3. gulo gulo says:

    hahaha are you serious

  4. Anonymous says:

    I’ve been wanting to stage a play I wrote in machinima, but have yet to find the exact software to suit me.

    There are, however, a few applications out there written as machinima tools, rather than co-opted game engines.

    The only argument I can see for “breaking the law” that might stand up in court, would be this sort of contortion:

    You agreed to a contract (clickwrap EULA, which has not held up well) that said you would not use our software to make derivative works.

    I will predict the next step now — “Because you used our copyrighted software to create this work, by extension we own it and can do whatever we want with it, without compensation to you.”

  5. Anonymous says:

    …It has been hailed as the art form of the 21st century.
    …It is redefining music videos.
    …And reinventing the videogame.
    …It might be the future of cinema.
    …Even though it is pretty cool.
    …It will be overhyped by people at Stanford.

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