Mashups, Mods & Machinima: Who Owns the Rights to Your Blood, Sweat & Tears Sean F. Kane Drakeford &...

Mashups, Mods & Machinima: Mashups, Mods & Machinima: Who Owns the Rights to Your Who Owns the Rights to Your

Blood, Sweat & TearsBlood, Sweat & Tears

Sean F. Kane Sean F. Kane Drakeford & Kane LLCDrakeford & Kane LLC

475 Park Avenue South, 19475 Park Avenue South, 19thth Floor FloorNew York, New York 10016New York, New York 10016

Tel: (212) 696-0010Tel: (212) 696-0010Fax: (212) 696-0070Fax: (212) 696-0070

Email: [email protected]: [email protected]

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My 411My 411

Lawyer for Game Developers Lawyer for Game Developers & Publishers& Publishers

Prior to that… IP lawyerPrior to that… IP lawyer– Copyright, trademark, Copyright, trademark,

advertising, etc.advertising, etc.– Transactional & litigationTransactional & litigation

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Mandatory Waffle SlideMandatory Waffle Slide

Yes, I work for various game companies, but I’m Yes, I work for various game companies, but I’m not here representing themnot here representing them

– My observations & advice are purely my ownMy observations & advice are purely my own– If I represent any of you in the future I will be happy If I represent any of you in the future I will be happy

to believe anything you believeto believe anything you believe

And now, on with the show…And now, on with the show…

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Goals of the PresentationGoals of the Presentation

Provide concrete legal information and Provide concrete legal information and perspectives about Mashups, Mods and perspectives about Mashups, Mods and MachinimaMachinima

Leave time for questionsLeave time for questions

Not to SUCK Not to SUCK

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Mashups: An IntroMashups: An Intro

Mashup is a website or application that uses Mashup is a website or application that uses content from more than one source to create a content from more than one source to create a completely new work or service. completely new work or service.

The creation of these are possible The creation of these are possible

as a result of simple Application as a result of simple Application

Programming Interfaces that are Programming Interfaces that are

readily available. readily available.

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MashupsMashups

Mashups should not be created without Mashups should not be created without permission from the sources otherwise there is permission from the sources otherwise there is likely to be an infringement of copyright and/or likely to be an infringement of copyright and/or an infringement of database regulations. an infringement of database regulations.

Most licences from sites that make APIs Most licences from sites that make APIs available will state that data used in mashups available will state that data used in mashups cannot be used for commercial purposes.cannot be used for commercial purposes.

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Mods: An IntroMods: An Intro

Two different types of Two different types of ModsMods

– Software Modding;Software Modding;

– Hardware Modding.Hardware Modding.

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Soft ModsSoft Mods

Soft ModdingSoft Modding allows the allows the

user to change data contained user to change data contained on its computer or gaming on its computer or gaming console hard drive.console hard drive.

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Hard ModsHard Mods

Hard ModdingHard Modding generally generally involves using chips to modify involves using chips to modify the internal console hardware.the internal console hardware.

■ ■ allow users to play allow users to play homemade games,homemade games,

■ ■ allow users to play games allow users to play games from other jurisdictions,from other jurisdictions,

■ ■ allow users to play allow users to play unauthorized copies. unauthorized copies.

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ModsMods

Some commercial videogames thrive Some commercial videogames thrive

on Modding; on Modding;

– Counter-StrikeCounter-Strike drove sales of drove sales of Half-Life;Half-Life;

– Space EmpiresSpace Empires is a series renowned is a series renowned

for its Modding capabilities. for its Modding capabilities.

Moreover, the Game Moreover, the Game Duke Nukem Duke Nukem was designed to be was designed to be modification friendly allowing players to create their modification friendly allowing players to create their own levels. own levels.

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Copyright Copyright ©© Infringement Infringement Micro Star v. FormGen, Inc., Micro Star v. FormGen, Inc.,

““Duke Nukem” included a utility that allowed Duke Nukem” included a utility that allowed players to create their own levels. players to create their own levels.

-- Micro Star downloaded and offered 300 Micro Star downloaded and offered 300 user generated levels for sale; user generated levels for sale;

-- 99thth Circuit opined that player Circuit opined that player created levels were derivative created levels were derivative works and property of works and property of FormGen, Inc.FormGen, Inc.

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Liability for ModsLiability for Mods

United States has stiff penalties for ModdingUnited States has stiff penalties for Modding under the DMCA;under the DMCA;

– criminalizes Mod chips as criminalizes Mod chips as ““circumvention devices”. circumvention devices”.

Immigration and Customs Enforcement (ICE) Immigration and Customs Enforcement (ICE) recently conducted 32 early morning raids in recently conducted 32 early morning raids in 16 U.S. cities related to Mod chips.16 U.S. cities related to Mod chips.

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International View of ModsInternational View of Mods

The EU Copyright Directive is being transposed into its The EU Copyright Directive is being transposed into its members’ national law but not all states have interpreted members’ national law but not all states have interpreted the legal issues the same. the legal issues the same.

UK conviction for selling Modded Xbox;UK conviction for selling Modded Xbox;

An Italian judge threw out Sony’s case holding it was up An Italian judge threw out Sony’s case holding it was up to a console owners what they did with it;to a console owners what they did with it;

Similarly in Spain, Mod chips are seen as legal despite Similarly in Spain, Mod chips are seen as legal despite

the EU copyright legislation.the EU copyright legislation.

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Machinima: An IntroMachinima: An Intro

Machinima is filmmaking using real-time Machinima is filmmaking using real-time video game visuals in 3D video game visuals in 3D

““Diary of a CamperDiary of a Camper” which ” which incorporated incorporated QuakeQuake footage is footage is considered to be the first machinima.considered to be the first machinima.

Although it wasn’t until “Although it wasn’t until “Red vs. Red vs. Blue”Blue” that most people became that most people became aware of machinima.aware of machinima.

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MachinimaMachinima

Machinima is one of the more complex Machinima is one of the more complex mediums from a legal standpoint. mediums from a legal standpoint.

– traditional film maker’s intellectual property traditional film maker’s intellectual property concerns;concerns;

– host of concerns concerning the game engine host of concerns concerning the game engine and elements used.and elements used.

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Potential Machinima IssuesPotential Machinima Issues

If the script employs too many If the script employs too many elements from the game (characters, elements from the game (characters, dialog, etc.), then it might be dialog, etc.), then it might be considered a derivative work; considered a derivative work;

– need to have permission to use the need to have permission to use the copyrighted work.copyrighted work.

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Voice Talent;Voice Talent; Music needs to be licensed;Music needs to be licensed; When you use a game engine, especially When you use a game engine, especially

the character models and maps, you are in the character models and maps, you are in essence creating a derivative work based essence creating a derivative work based on the game. on the game.

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Final Video ProductFinal Video Product

Assuming you have the rights to all elements of Assuming you have the rights to all elements of the video (the engine, the music, the voices, the the video (the engine, the music, the voices, the script), then you can copyright your entire video.script), then you can copyright your entire video.

Machinima may generate fans and players for a Machinima may generate fans and players for a game. However, allowing people to freely game. However, allowing people to freely generate derivative works can hinder your future generate derivative works can hinder your future ability to enforce your rights. ability to enforce your rights.

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End User License Agreement End User License Agreement – may forbid all usemay forbid all use– forbids for profit use or for forbids for profit use or for

commercial usecommercial use

The easiest route is to simply ask the The easiest route is to simply ask the publisher or developer for permission publisher or developer for permission

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Copyright Copyright ©©IntroductionIntroduction

Simple to invoke protectionSimple to invoke protection

Copyright protection is longCopyright protection is long

Penalties for violations are severePenalties for violations are severe

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Copyright Copyright ©©Simple to Invoke Simple to Invoke

Protection extends to “original works of Protection extends to “original works of authorship” that are “fixed in any tangible authorship” that are “fixed in any tangible medium of expression .” – code, games, books, medium of expression .” – code, games, books, movies, songsmovies, songs

Copyright protection vests at the creation of the Copyright protection vests at the creation of the workwork

Basic federal registration is extremely cheap – Basic federal registration is extremely cheap – $45$45

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Copyright Copyright ©© Simple to Invoke Simple to Invoke

Registration of a claim to copyright is Registration of a claim to copyright is advisable and provides advantages but it is advisable and provides advantages but it is not a prerequisite to protection not a prerequisite to protection

The use of the © symbol is not required on The use of the © symbol is not required on works created after 1989 works created after 1989

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Copyright Copyright ©©Protection is LongProtection is Long

Copyright protection provides an author an Copyright protection provides an author an exclusive right to exploit their worksexclusive right to exploit their works

Protection for works being created currently lasts Protection for works being created currently lasts for the life of the author plus seventy years. for the life of the author plus seventy years. However, if the work is pseudonymous, However, if the work is pseudonymous, anonymous or made for hire, protection extends anonymous or made for hire, protection extends for ninety-five years from first publication or for ninety-five years from first publication or 120 years from its creation, whichever is sooner 120 years from its creation, whichever is sooner

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Copyright Copyright ©©Protection is LongProtection is Long

In short, 95 years after publication of the work In short, 95 years after publication of the work or 120 years after creation of the workor 120 years after creation of the work

Copyright law has changed several times and Copyright law has changed several times and protections vary internationallyprotections vary internationally

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Copyright Copyright © © Protection is LongProtection is Long

The categories of protected works include the following:The categories of protected works include the following:

Literary works, including books, magazines, newspapers Literary works, including books, magazines, newspapers and computer programsand computer programs

Musical worksMusical works Dramatic worksDramatic works Pantomimes and choreographic worksPantomimes and choreographic works Pictorial, graphic and sculptural worksPictorial, graphic and sculptural works Motion picture and other audiovisual worksMotion picture and other audiovisual works Sound recordings andSound recordings and Architectural works Architectural works

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Copyright Copyright ©© Protection is Long Protection is Long

A derivative work is “a work based upon A derivative work is “a work based upon one or more preexisting works”one or more preexisting works”

Derivative works can be copyrightable if Derivative works can be copyrightable if they meet a “minimal creativity” standard they meet a “minimal creativity” standard

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Copyright Copyright ©©Penalties are SeverePenalties are Severe

Willful infringement may carry a statutory Willful infringement may carry a statutory fine of up to $150,000 per workfine of up to $150,000 per work

Criminal charges are also availableCriminal charges are also available

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Copyright Copyright ©©“Fair Use”“Fair Use”

Doctrine of “fair use” creates a limited right to Doctrine of “fair use” creates a limited right to utilize copyrighted material without the owners utilize copyrighted material without the owners consent consent – noncommercial or for nonprofit educational purposesnoncommercial or for nonprofit educational purposes

– nature of the copyrighted works nature of the copyrighted works

– amount used in relation to the copyrighted workamount used in relation to the copyrighted work

– effect of the use on the potential market or value of effect of the use on the potential market or value of the copyrighted materialthe copyrighted material

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Copyright Copyright ©© Internationally Internationally

■■ There is no “international copyright.”There is no “international copyright.”

■■ Protection against unauthorized use in a Protection against unauthorized use in a particular country depends on the laws of that particular country depends on the laws of that country. country.

■■ However, most countries do offer protection to However, most countries do offer protection to foreign works under certain conditions. foreign works under certain conditions.

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Copyright Copyright ©©Can You Afford to InfringeCan You Afford to Infringe

Litigation is expensive and uncertainLitigation is expensive and uncertain

– $500,000 to $1,500,000 for Copyright $500,000 to $1,500,000 for Copyright LitigationLitigation

– May take 2 to 5 years for trial and May take 2 to 5 years for trial and appeals depending on complexity of appeals depending on complexity of casecase

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Presentation Goals ReduxPresentation Goals Redux

Understanding Copyright is Understanding Copyright is critical to the success of any critical to the success of any project.project.

Protect your rights and Protect your rights and respect the rights of others.respect the rights of others.

Vigilance is much cheaper Vigilance is much cheaper than litigation. than litigation.

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Thank YouThank You

Sean F. Kane, Esq.Sean F. Kane, Esq.

Drakeford & Kane, LLCDrakeford & Kane, LLC475 Park Avenue South, 19475 Park Avenue South, 19thth Floor Floor

New York, New York 10016New York, New York 10016Tel: (212) 696-0010Tel: (212) 696-0010Fax: (212) 696-0070Fax: (212) 696-0070

Email: [email protected]: [email protected]

Mashups, Mods & Machinima: Who Owns the Rights to Your Blood, Sweat & Tears Sean F. Kane Drakeford &...

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