Lawyers discuss whether Machinima is Fair Use

(cross-posted on Playaslife.com)

I attended a panel at Play Machinima Law, a Stanford conference on machinima law, where the main discussion was trying to figure out if machinima was fair use, and if it was, to what extent would be considered “fair.” A lot of the discussions focused on the end-user license agreements and how game producers could set boundaries on how game users utilize the content within the game.

In case you don’t know what machinima is, it is an animated film that uses 3D virtual worlds that already exist– such as games or Second Life. For instance, World of WarCraft, The Sims, Halo, CounterStrike, etc. have been used to create machinima. (Machinima.com is one of the best sites for compiled machinima.) These virtual worlds are used for not only their background/scenery but also the characters.

When game makers created games, they had no idea that their games would be used as an engines to create 3D animated movies. However, now that people are using games as filmmaking tools, they are beginning to think whether 1) that violates copyrights of the gamemaker and 2) if so, how they should create rules. Game makers have the advantage of controlling user activity because gamers have to agree to end-user license agreements (although how many people actually read them in detail is disputed).

Game companies aren’t opposed to machinima. To some extent, they are flattered and excited that their products are being used for creative productions. However, at the end of the day, although the end user license agreements are different depending on the platform, most games inevitably create boundaries. On most games, machinima makers are not allowed to create work for commercial purposes. Of course, at this point, lawyers are also arguing what exactly a “commercial purpose” is.

This is a problem for people who want to make money from their machinima. Also, although submission for film festivals is currently viewed as a noncommercial purpose falling under fair use, one could always argue that the use of the machinima by a director as a promotional tool for future filmmaking deals could be viewed as commercial.

Naturally, the problem becomes more complicated when the machinima maker uses copyrighted music. A lot of amateur machinima (stuff that teenagers post on Youtube) are like music videos with pop songs mashed with video footage from the game. Although music was viewed as a separate legal issue from the perspective of the lawyers (because the copyright holder would be the record industry instead of the game industry), it is still an important legal factor for the machinima makers.

Of all the game representatives that were present, The Sims seemed to be the most open to machinima—especially because it is including an easy-to-use video capturing tool in its upcoming Sims 3. But even in Sims, if there are product placements or other trademark items, machinima becomes a problem. For instance, if your character is wearing a T-shirt that was actually a product placement, would it be okay to portray that T-shirt in the machinima? Those are the types of questions game company lawyers are trying to answer.

Second Life, unfortunately, was not represented at the panel (perhaps because it is not considered a game) but lawyers seemed to be terrified about how copyright would work in Second Life. “Second Life Is worse than real life. You can film in New York without worrying that fashion of someone walking by or the texture of pavement is owned by someone, but not in Second Life, since Linden Lab doesn’t even have authority over the rights of the content that users create,” said Fred von Lohmann of the Electronic Frontier Foundation.

In the U.S., copyright was created to “promote the progress of science and useful arts.” If games had such strong copyright laws in the first place, would machinima ever have been developed at all? And how will companies control users’ behavior with games that are global? Perhaps the best thing is to think of games as the real world, and let people express their creativity without having Big Brother watching over their shoulder.

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