   How far does arguing Parody/FairUse/Fan Art go ?
  Lets say there's a game with about a zillion players and great art assets.Now, I'm pretty sure I can take the artwork and make fan fiction in Maya from it as long as I don't sell it or damage their business model... and I believe that I can take the concept and hand draw a comic or flash strip (wholly derrivative) on the same terms as any parody itself is protected as a right provided it is not otherwise infringing.How about a screen saver or standalone minigames for example... If I made a screen saver from art assets could I be interfering with 'potential future revenue' streams by giving it away free ?  And, if so, wouldn't the same argument apply to hand drawn comics or flash parodies.I ask because I've heard that various forms of fanfic are acceptable as is parody - I just don't know where the boundaries between that and infringement lie.As an added twist, what if you DONT distribute the proprietary assets, but rather depend on the existing media on the customers computer (presumably there by virtue of having the game installed independently)  Does that change the answer greatly, or is it still blocking 'future revenue streams'Anyone care to take on the job of explaining this to me ?Oh, and I'm under the jurisdiction of UK law, not that it makes much difference now that the US is stamping around in jackboots over the whole DMCA/MAFIAA thing.-GaryCh   
Quote:Original post by GaryChI ask because I've heard that various forms of fanfic are acceptable as is parody - I just don't know where the boundaries between that and infringement lie.Was the person you heard it from a lawyer you paid for a opinion on the topic? If not then I wouldn't put trust in it.  Second if it isn't a parody(just a fanfic) then how exactly are you going to claim parody status?  That is to say Parody fanfic is covered non parody fanfic isn't.According to Wikipedia(I know, real reliable source.) The UK has fair dealing laws not fair use.Under the Copyright, Designs and Patents Act 1988 (CDPA), fair dealing is limited to the following purposes: research and private study (both must be non-commercial), criticism, review, and news reporting (s. 29, 30, 178). Also note no mention of parody so you may be out of luck there.In the US at least fair use is an "active defense" They have to drag you into court and it is on you to prove your use was fair.   ;Quote:Original post by GaryChHow far does arguing Parody/FairUse/Fan Art go ?As far as your bank account can take you. Because that argument has to be given in court, which involves lots of legal fees.;  Take a look at this article - Blizzard legal censures Shakes and FidgetA quick excerptQuote:... Activision-Blizzard's legal department suggested to them that there was enough similarity between the official game and the unofficial comic to cause a problem, and while they believe that they're covered under parody laws, they decided to take the "offending" comics offline anyway, and are apparently currently working on editing them so that they can be put back up without any issues.;  Check your definition of "parody", as your post shows no comprehension of the actual term.  From wikipedia:A parody (pronounced /ˈpærədiː/; also called send-up or spoof), in contemporary usage, is a work created to mock, comment on, or poke fun at an original work, its subject, author, style, or some other target, by means of humorous, satiric or ironic imitation.What you are describing is known as "infringement" and not "pardoy" as defined by courts or common english usage of the word.Do yourself a favor and either ask the IP owner's permission or do something wholly original.Good luck!   ;Quote:Original post by GaryChNow, I'm pretty sure I can take the artwork and make fan fiction in Maya from it as long as I don't sell it or damage their business model...Incorrect - that would be copyright infringement.Quote:and I believe that I can take the concept and hand draw a comic or flash strip (wholly derrivative) on the same terms as any parody itself is protected as a right provided it is not otherwise infringing.1. Only if it actually IS a parody. You can't do a comic based on someone else's intellectual property (IP) and just claim it is a parody - it actually has to be one.2. Whether or not your comic is a parody can only be decided by a court. Just claiming that it is a parody won't stop the IP owner from suing you or taking other action for infringement. That means you will have to pay an expensive IP lawyer to defend you in court.  Quote:How about a screen saver or standalone minigames for example... If I made a screen saver from art assets could I be interfering with 'potential future revenue' streams by giving it away free ?Copyright has nothing to do with money. It makes no difference if it is free or charged for, it is copyright infringement.Quote:I ask because I've heard that various forms of fanfic are acceptable as is parody - I just don't know where the boundaries between that and infringement lie.The boundary lies in what the IP owner thinks. If you create a comic or game using someone else's IP and they recognise it they can take action against you. That could be a Cease and Desist letter, they could sue or they could take other forms of action such as threatening your web host with action unless they remove the infringing materials.Quote:what if you DONT distribute the proprietary assets....Hopefully our visiting Lawyer Mona will pop by and address this point, otherwise you need to talk to a UK based IP lawyer. There is a list of them on my site at List of lawyers.ConclusionFan fiction is copyright infringement. It is up to the IP owner to decide if they want to take action or not. Some don't, many do.   ;  I thought for sure I'd be the "resident" attorney by now... Quote:Original post by GaryChLets say there's a game with about a zillion players and great art assets.Now, I'm pretty sure I can take the artwork and make fan fiction in Maya from it as long as I don't sell it or damage their business model... and I believe that I can take the concept and hand draw a comic or flash strip (wholly derrivative) on the same terms as any parody itself is protected as a right provided it is not otherwise infringing.Well you technically *can* do all of those things, in the same way that I *can* sell crack to a 10 year old. It doesn't make it less illegal, you're just not guaranteed to get caught. One of the rights in the bundle of copyrights is the right to make derivative and transformative works, such as fan fiction and web comics. Some content creators, like Blizzard, will turn a blind eye or even encourage certain types of fan fiction by holding contests and requesting submissions; but that's not always the case. Nintendo, for example, is well known for being somewhat Stalinesque about that kind of thing. Quote:How about a screen saver or standalone minigames for example... If I made a screen saver from art assets could I be interfering with 'potential future revenue' streams by giving it away free ?  And, if so, wouldn't the same argument apply to hand drawn comics or flash parodies.Again, copyright infringement. Whether or not you sell the product has little meaning if you're taking over an economic channel from the asset owner without a license. Quote:I ask because I've heard that various forms of fanfic are acceptable as is parody - I just don't know where the boundaries between that and infringement lie.Courts can't even agree on the distinction between Parody and Satire. There is no bright line telling you when you're about to cross it. That's up to the person who owns the IP-- and the judge in the resulting lawsuit. Quote:As an added twist, what if you DONT distribute the proprietary assets, but rather depend on the existing media on the customers computer (presumably there by virtue of having the game installed independently)  Does that change the answer greatly, or is it still blocking 'future revenue streams'Trickier question. This raises a few issues. First, the EULA-- what does it say about, say, reverse engineering (which would seem necessary if you're going to incorporate assets already existing on the user's system into your product)? What does it say about uses of copyright assets beyond the intended use (game play on a single gaming device)? Second, could the opposing party claim that this is a method of contributory infringement? It's an unlicensed reproduction of the asset in a format not permitted under the license, so that could create a problem. It certainly changes the argument, and the novelty of these arguments may cause second thoughts should the alleged infringer be in a position to challenge the claim, but most people who spend their time working on fan fiction aren't in that position. So it's mostly academic. Quote:Anyone care to take on the job of explaining this to me ?Oh, and I'm under the jurisdiction of UK law, not that it makes much difference now that the US is stamping around in jackboots over the whole DMCA/MAFIAA thing.-GaryChThanks to the Berne convention, although copyright law isn't completely homogenized (nor are the defenses to infringement), the rights themselves have a baseline. This includes the right to creative derivative works. U.S. law is actually more restrictive as far as rights granted to the authors; for instance, many European countries offer greater protection to things like Moral Rights, author's rights, calligraphy and design. And DMCA only applies to those copyrights originating in the U.S., published (distributed in some manner) in the U.S., or registered in the U.S. It does not apply to works wholly protected under foreign law with no connection to the U.S. That being said, all signatories to the Berne Convention (a ridiculous number of countries) have comparable baseline protections in place. More and more countries are incorporating concepts like contributory and vicarious infringement, infringement based on reverse engineering, etc. into their rules and rulings. In other words it makes some difference, but maybe not enough to protect you if you're sued. You would need to contact an attorney who specializes in copyright in the country where the rights are held, and the countries where you plan to distribute.[Edited by - monalaw on May 26, 2010 7:19:22 PM];Quote:Original post by kdog77Check your definition of "parody", as your post shows no comprehension of the actual term.  From wikipedia:I understand perfectly the concept of parody... I was just showing a sliding scale, from outright parody or caracature, to non-parodying fan fiction which is often seen as tolerable, to actual assets which may or may not be useable provided MY end user ALREADY has license to them.Quote:What you are describing is known as "infringement" and not "pardoy" [SIC] as defined by courts or common english usage of the word.Can you do a little better than that?  If I am not distributing their assets then I doubt it is infringement.  Lets say you play a particular MMORPG, lets say I release a screen saver which uses the assets you already have (presumeably licenced)...Then YOU might concievably be guilty of breaking some T&C of the licence, I never comitted myself to any such licence - and I am NOT distributing.If you disagree then please explain WHY it would be infringing.@MonalawQuote:Trickier question. This raises a few issues. First, the EULA-- what does it say about, say, reverse engineering (which would seem necessary if you're going to incorporate assets already existing on the user's system into your product)?Presumeably I could argue that, not being a customer or subscriber, I am not bound by any EULA atached to their product.Quote:What does it say about uses of copyright assets beyond the intended use (game play on a single gaming device)?Wouldn't this be the responsibility of our respective end users ? Quote:Second, could the opposing party claim that this is a method of contributory infringement?Of the EULA perhaps, but that would be a civil matter of contract ?  I should add at this point that the content is held in an unprotected archive using a standard and open format (imagine it's a .zip).  Whils I am not so naieve as to believe this gives me rights, it does I hope remove the argument of reverse engineering or the allegation of 'breaking' some security measure. Quote:It's an unlicensed reproduction of the asset in a format not permitted under the license, so that could create a problem. It certainly changes the argument, and the novelty of these arguments may cause second thoughts should the alleged infringer be in a position to challenge the claim, but most people who spend their time working on fan fiction aren't in that position. So it's mostly academic. Interesting.  Now, can that be disclaimed away ?For example:  This product does not include any original code or artwork from the game, it therefore relies upon you owning a legitimate licensed copy.  However it may reproduce said artwork in a format not permitted under your license or in a manner forbidden by your EULA.  By installing this product you agree to accept sole responsibility for any and all claims arising from your use of this software.  You agree that we are not accountable for any loss or damage resulting from this software or its use including, but not limited to, the termination of any licences,... etc... etc...Presumeably I'd be on a reasonably strong legal footing provided I don't distribute, I don't bind myself by contract to their eula, I don't profit directly or indirectly from the product, and I pay a lawyer to summon up some fancy wording which explains the risks to my end user and has them accept liability and defend me from third party action.Would that be all my bases reasonably covered, at least enough to give some reasonable expectation of defensibility ?EDIT:  My instinctive defence to claims that it damages potential future markets are, at present:  In 6 years they have not sought those markets, and at the time of release showed no intent to do so... however, the fact that my product relies upon a licenced copy of theirs - I would question whether I am actually creating a new market or simply providing added value to their existing market.  Indeed, if someone ONLY wanted my product they would still be forced to pay (the vendor) for a licenced copy of the game thus any alleged 'new' market created by my product expands the market of (the vendor).  The influence of my product upon their business model is, I feel, wholly positive.  Indeed, it is (the vendor) and not myself who benefits from this endeavour - both financially, in percieved value and in increased exposure.-GaryCh[Edited by - GaryCh on May 27, 2010 3:33:41 AM];  If you were to make a screen saver than scans someone's harddrive for any images and uses them, then you would be OK. Once you make it specific to one game you then weaken any defence that the purpose is not to infringe. At least that would be what their lawyers would likely say. which would be grounds for a claim of coQuote:It's an unlicensed reproduction of the asset in a format not permitted under the license, so that could create a problem. It certainly changes the argument, and the novelty of these arguments may cause second thoughts should the alleged infringer be in a position to challenge the claim, but most people who spend their time working on fan fiction aren't in that position. So it's mostly academic. Quote:EDIT:  My instinctive defence to claims that it damages potential future markets are, at present:  In 6 years they have not sought those markets, and at the time of release showed no intent to do so...1. Six years is nothing. Quite a few game franchises have been revived 10 or more years after their were last on sale.2. Unless you work for the IP owner and are involved in their planning meetings you can't claim to know what their plans for the IP are.   ;Quote:Original post by ObscureIf you were to make a screen saver than scans someone's harddrive for any images and uses them, then you would be OK. Once you make it specific to one game you then weaken any defence that the purpose is not to infringe. At least that would be what their lawyers would likely say. which would be grounds for a claim of coInfringe in what way though?  If you're talking about the licence, then I am not bound by it.  If you are talking about copyright, I'm not copying or distributing protected content.  The precise grounds and qualification for claiming infringement don't seem too clear - can you enlighten.Under which section of the act (or acts) would I be infringing ?Quote:Quote:EDIT:  My instinctive defence to claims that it damages potential future markets are, at present:  In 6 years they have not sought those markets, and at the time of release showed no intent to do so...1. Six years is nothing. Quite a few game franchises have been revived 10 or more years after their were last on sale.2. Unless you work for the IP owner and are involved in their planning meetings you can't claim to know what their plans for the IP are.I knew someone would take just the first part of that paragraph in isolation.  The wider point being... that MY code both adds value and expands their market - that ultimately, I am not stealing their market, but existing within it and perhaps even expanding it.  This isn't intended to address rights but rather to counter any claims of quantifiable damages.-GaryCh   