Trp. Jed
09-04-2003, 08:19 PM
Seeing several threads, comments and accusations flying around recently I thought I would make a new thread, maybe to be stickied by the forum admins for reference.
I am not a lawyer and therefore do not know all the precise details of the law as it is written but I do have some experience having been both threatened with legal action over copyright issues and had my own copyrighted work stolen by others.
This information is a little general and is quoted from various on-line sources. You are welcome to look up other facts yourself, however the following should be a good guide for those wondering about the legality of using parts of meshes or textures from other games in their models.
The Basics
Almost all games combine a variety of materials, including text, graphics, photos, videos and sounds. If you take elements of these from another game to use in your own work you can run into the following problems:
Copyright permissions problems: You need to obtain permission to use materials protected by copyright, whether it be text, photos, video and film clips, software or music. All software companies copyright their work and it is highly unlikely that they will give you permission to use it.
Publicity/privacy problems: Use of photos, film or video footage or audio recordings can constitute a breach of the privacy or publicity rights of the people whose likenesses are used.
This may sound odd but that "Saving Private Ryan" sound clip or photograph you used of Sean Connery to make a face texture could cause you problems if used without permission.
In some cases the copyright owner may give specific permission for some game content to be used in certain situations. Examples include such things as "fan sites". An example of where permission is explicitly given can been seen in this quote from an EA Games license below:
Electronic Arts Inc, and its subsidiaries, affiliates and licensors (collectively, "EA") grants you a non- transferable license to download one copy of the graphics, sound files, and other materials accompanying this license (the "Materials"), onto a single computer solely for your personal noncommercial use of the Materials on your Fan Site. "Fan Site" shall mean a personal, noncommercial web site, created by you, that is freely accessible to the public and dedicated to promoting one or more games published and operated by EA. EA and its Licensors own all of the rights in the Materials. You may not alter any of EA's trademarks or logos, or alter or remove any of the trademark or copyright notices included in the Materials.
However, the license continute and states quite catagorically:
Your right to use Materials is limited to the license grant above, and you may not otherwise copy, display, perform, publish, or use any of the Materials. You may not modify, reverse engineer, disassemble, create derivative works from, license, transfer, distribute, or sell any Materials, or use the Materials to further any commercial or unlawful purpose.
I've highlighted the parts that are important to modellers. Now in this case this is a license for an EA Games fan sight and NOT the license for an actual game. However the copyright they hold over their game basically implies the same thing and you should consider this to be true in all cases where not otherwise stated.
Using Copyrighted Material Without Permission
You might be tempted to use copyrighted material without permission simply because you don't know who to ask or figure they'll never find out. If the copyright owner later discovers what you've done, at the very least you will be liable for the reasonable value of the use. However this is a computer game and to the software companies that is their bread and butter and what they are there for. If your lucky you'll be asked to remove your work from the web and served a cease and decist notice but if your work has become widely distributed and known the copyright owner might sue you for copyright infringement.
In this event, you could face substantial damages. The copyright owner you've stolen from could ask the court for the reasonable value of the use and the amount of any economic loss caused by your theft; or, if the material has been registered with the U.S. Copyright Office, the copyright owner could ask for special statutory damages, which can range up to $150,000 US (it's up to the judge or jury to decide how much). In some cases, you could even be subject to criminal prosecution. And don't forget, you'll be paying your lawer handsomely, regardless of how the case turns out.
The "Fair Use" Exception to Copyrighted Works
Even if the material you want to use is protected by copyright, you will not need permission if your intended use constitutes a "fair use." Under the fair use rule, an author is permitted to make limited use of preexisting protected works without asking permission. All copyright owners are deemed to give their automatic consent to the fair use of their work by others. The fair use rule is an important exception to a copyright owner's exclusive rights.
The fair use rule is designed to aid the advancement of knowledge, which is the reason for having a copyright law in the first place. If scholars, educators and others were required to obtain permission every time they quoted or otherwise used brief portions of other authors' works, the progress of knowledge would be greatly impeded.
Determining whether the fair use privilege applies in any given situation is not an exact scientific process. Rather, it requires a delicate balancing of all the factors discussed below. Probably the best rule for fair use is the following variant of the Golden Rule: "Take not from others to such an extent and in such a manner that you would be resentful if they so took from you." (McDonald, "Non-infringing Uses," 9 Bull. Copyright Society 466 (1962).)
The following four factors must be considered to determine whether an intended use of an item constitutes a fair use:
the purpose and character of the use
the nature of the copyrighted work
the effect of the use upon the potential market for or value of the copyrighted work, and
the amount and substantiality of the portion used in relation to the copyrighted work as a whole.
Not all these factors are equally important in every case, but all are considered by the courts in deciding whether a use is "fair". In terms of taking elements of other computer games, having bought the game you are allowed to use parts of it yourself as part of fair use as long as you dont distribute or share it.
Using models and converting them to DoD for example for your own learning and enjoyment comes under fair use. Same goes for using a texture. However the second you start to distribute your work, especially publically you have gone beyond fair use and are now infringing upon copyright law.
Worse still, were you to distribute it say here in the forums, the case against you grows stronger as the copyright holder may claim you have diluted the value of their work and could seek compensation.
Giving Credit Does Not Make a Use "Fair"
Some people have the mistaken idea that they can use any amount of material so long as they give the creator or copyright owner credit. This is simply not true. Providing credit will not in and of itself make a use "fair." Nevertheless, attribution should always be provided for any material obtained or copied from third parties. Passing yourself off as the creator of other people's work is a good way to get sued for copyright infringement, and is likely to make a judge or jury angry if you are sued. Quoting with attribution is a very good hedge against getting sued, or losing big if you are sued. Thus, you should always provide a credit line for any material you make fair use of.
- Jed
Much of the above is taken from "Web & Software Development: A Legal Guide " by Attorney Stephen Fishman.
I am not a lawyer and therefore do not know all the precise details of the law as it is written but I do have some experience having been both threatened with legal action over copyright issues and had my own copyrighted work stolen by others.
This information is a little general and is quoted from various on-line sources. You are welcome to look up other facts yourself, however the following should be a good guide for those wondering about the legality of using parts of meshes or textures from other games in their models.
The Basics
Almost all games combine a variety of materials, including text, graphics, photos, videos and sounds. If you take elements of these from another game to use in your own work you can run into the following problems:
Copyright permissions problems: You need to obtain permission to use materials protected by copyright, whether it be text, photos, video and film clips, software or music. All software companies copyright their work and it is highly unlikely that they will give you permission to use it.
Publicity/privacy problems: Use of photos, film or video footage or audio recordings can constitute a breach of the privacy or publicity rights of the people whose likenesses are used.
This may sound odd but that "Saving Private Ryan" sound clip or photograph you used of Sean Connery to make a face texture could cause you problems if used without permission.
In some cases the copyright owner may give specific permission for some game content to be used in certain situations. Examples include such things as "fan sites". An example of where permission is explicitly given can been seen in this quote from an EA Games license below:
Electronic Arts Inc, and its subsidiaries, affiliates and licensors (collectively, "EA") grants you a non- transferable license to download one copy of the graphics, sound files, and other materials accompanying this license (the "Materials"), onto a single computer solely for your personal noncommercial use of the Materials on your Fan Site. "Fan Site" shall mean a personal, noncommercial web site, created by you, that is freely accessible to the public and dedicated to promoting one or more games published and operated by EA. EA and its Licensors own all of the rights in the Materials. You may not alter any of EA's trademarks or logos, or alter or remove any of the trademark or copyright notices included in the Materials.
However, the license continute and states quite catagorically:
Your right to use Materials is limited to the license grant above, and you may not otherwise copy, display, perform, publish, or use any of the Materials. You may not modify, reverse engineer, disassemble, create derivative works from, license, transfer, distribute, or sell any Materials, or use the Materials to further any commercial or unlawful purpose.
I've highlighted the parts that are important to modellers. Now in this case this is a license for an EA Games fan sight and NOT the license for an actual game. However the copyright they hold over their game basically implies the same thing and you should consider this to be true in all cases where not otherwise stated.
Using Copyrighted Material Without Permission
You might be tempted to use copyrighted material without permission simply because you don't know who to ask or figure they'll never find out. If the copyright owner later discovers what you've done, at the very least you will be liable for the reasonable value of the use. However this is a computer game and to the software companies that is their bread and butter and what they are there for. If your lucky you'll be asked to remove your work from the web and served a cease and decist notice but if your work has become widely distributed and known the copyright owner might sue you for copyright infringement.
In this event, you could face substantial damages. The copyright owner you've stolen from could ask the court for the reasonable value of the use and the amount of any economic loss caused by your theft; or, if the material has been registered with the U.S. Copyright Office, the copyright owner could ask for special statutory damages, which can range up to $150,000 US (it's up to the judge or jury to decide how much). In some cases, you could even be subject to criminal prosecution. And don't forget, you'll be paying your lawer handsomely, regardless of how the case turns out.
The "Fair Use" Exception to Copyrighted Works
Even if the material you want to use is protected by copyright, you will not need permission if your intended use constitutes a "fair use." Under the fair use rule, an author is permitted to make limited use of preexisting protected works without asking permission. All copyright owners are deemed to give their automatic consent to the fair use of their work by others. The fair use rule is an important exception to a copyright owner's exclusive rights.
The fair use rule is designed to aid the advancement of knowledge, which is the reason for having a copyright law in the first place. If scholars, educators and others were required to obtain permission every time they quoted or otherwise used brief portions of other authors' works, the progress of knowledge would be greatly impeded.
Determining whether the fair use privilege applies in any given situation is not an exact scientific process. Rather, it requires a delicate balancing of all the factors discussed below. Probably the best rule for fair use is the following variant of the Golden Rule: "Take not from others to such an extent and in such a manner that you would be resentful if they so took from you." (McDonald, "Non-infringing Uses," 9 Bull. Copyright Society 466 (1962).)
The following four factors must be considered to determine whether an intended use of an item constitutes a fair use:
the purpose and character of the use
the nature of the copyrighted work
the effect of the use upon the potential market for or value of the copyrighted work, and
the amount and substantiality of the portion used in relation to the copyrighted work as a whole.
Not all these factors are equally important in every case, but all are considered by the courts in deciding whether a use is "fair". In terms of taking elements of other computer games, having bought the game you are allowed to use parts of it yourself as part of fair use as long as you dont distribute or share it.
Using models and converting them to DoD for example for your own learning and enjoyment comes under fair use. Same goes for using a texture. However the second you start to distribute your work, especially publically you have gone beyond fair use and are now infringing upon copyright law.
Worse still, were you to distribute it say here in the forums, the case against you grows stronger as the copyright holder may claim you have diluted the value of their work and could seek compensation.
Giving Credit Does Not Make a Use "Fair"
Some people have the mistaken idea that they can use any amount of material so long as they give the creator or copyright owner credit. This is simply not true. Providing credit will not in and of itself make a use "fair." Nevertheless, attribution should always be provided for any material obtained or copied from third parties. Passing yourself off as the creator of other people's work is a good way to get sued for copyright infringement, and is likely to make a judge or jury angry if you are sued. Quoting with attribution is a very good hedge against getting sued, or losing big if you are sued. Thus, you should always provide a credit line for any material you make fair use of.
- Jed
Much of the above is taken from "Web & Software Development: A Legal Guide " by Attorney Stephen Fishman.