Law of the Game on Joystiq: All derivatives, no math

Each week Mark Methenitis contributes Law of the Game on Joystiq, a column on legal issues as they relate to video games:

Today's column has nothing to do with math. (Sorry to disappoint some of you!) For most, I'm sure, it's a relief -- myself included. What may not be such a relief, though, is that the topic of the day is once again copyright, which is often confusing. I've received quite a bit of e-mail over the past few months regarding game footage on YouTube or streaming footage, and how exactly that relates to copyright. What this article won't address specifically is machinima, but rest assured that Law of the Game on Joystiq will visit the territory of Red vs Blue at some point in the future.

When last we discussed copyright, we talked about what was protected under the law and what was not. But what the previous article didn't spell out were the rights granted to the copyright owner. In this way, "copyright" is a bit of a misnomer, as the person who holds a "copyright" actually has a number of rights with respect to the work. In fact, there are 5 generally identified rights in the copyright:

1. The Right to Reproduce the Work
2. The Right to Distribute the Work
3. The Right to Create Derivative Works
4. The Right to Show Display the Work Publicly
5. The Right of Public Performance

Rights 4 and 5 vary with the particular type of work. The issue we're tackling today falls somewhere in the rights listed, although it's difficult to precisely label.

"What does it mean to have the 'right' to control?"

If I had to place recorded game footage anywhere, I would place it under "derivative work," but it's a fine line. When you upload game footage onto YouTube, you are distributing footage of the game, and you are arguably publicly performing the game. But in my view, because of your input, it is a derivative work. A derivative work is defined as "a work that is based on (or derived from) one or more already existing works." In traditional media, fan fiction, sequels and remixes are considered "derivative works." In a game context specifically, machinima is a derivative work. Those are clearly works that are based on other existing works. So why would video of someone playing a game fall in this category?

Well, simply put, there is an additional element added to the original work: the player's input. If I put a video of a cutscene or of a title screen or of the game with on one at the controls on YouTube, it would just be the game (which is still infringement, as we'll get to in a minute), but when I'm adding my input, I'm adding an element. The way one player chooses to progress or even behave with respect to manipulating the controller is not the same as another.

Even if you don't agree with me on the derivative nature, it would still be a public performance or display of the game in question (depending on your interpretation of the concept of "performance"). With respect to a cutscene, it would likely be a public display. And all of these are rights that are within the control of a copyright holder, which would be the game company. But what does it actually mean to have the "right" to "control" these things? Put simply, you are not legally allowed to proceed without permission from the copyright holder.

"Just because the right holder isn't taking action doesn't mean it's legal."

That means that if a developer puts out a gameplay video, they have the right to do so without question. If a player puts out a gameplay video, the developers can request the video be taken down from sites like YouTube because they own the copyright. On the other hand, if you were to get permission to post a gameplay video you made, then the video could be posted. To take this a step further, when developers put up a gameplay video or trailer, they also own the rights to that video, and so if they wish, they can prevent others from distributing it, per Rights 1 and 2.

Of course, this all speaks to what copyright owners can do, not necessarily what they will do or should do. Many copyright owners pursue unauthorized videos because it is seen as protecting their copyright, not because they had a problem with the video. Others just don't want videos out in public that they didn't create. Still others may not monitor the issue at all. But just because the right holder isn't taking action doesn't mean it's legal.

In general, game videos make more people aware of and interested in games, and I think most developers know that. When we discuss machinima, we will get into the developers who already have created policies regarding posting videos online, like Microsoft and Blizzard. Eventually, many more developers may also have a standard policy with regard to posting videos of their games online. Until then, though, this little bit of copyright may provide better insight into why sites like YouTube enforce policies the way they do.

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Mark Methenitis is the Editor in Chief of the Law of the Game blog, which discusses legal issues in video games. Mr. Methenitis is also a licensed attorney in the state of Texas with The Vernon Law Group, PLLC and a member of the Texas Bar Assoc., American Bar Assoc., and the International Game Developers Assoc. Opinions expressed in this column are his own. Reach him at: lawofthegame [AAT] gmail [DAWT] com.

The content of this blog article is not legal advice. It only constitutes commentary on legal issues, and is for educational and informational purposes only. Reading this blog, replying to its posts, or any other interaction on this site does not create an attorney-client privilege between you and the author. The opinions expressed on this site are not the opinions of AOL LLC., Weblogs, Inc., Joystiq.com, or The Vernon Law Group, PLLC. As with any legal issue that may confront you in a particular situation, you should always consult a qualified attorney familiar with the laws in your state.