Law of the Game on Joystiq: Legal machinations of machinima

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

It's only fitting that during the same week Red vs. Blue: Reconstruction premiers, Law of the Game on Joystiq would finally get to the topic of machinima. The game-based machinima issue boils down to one of copyrights and licensing. To be more specific, there are issues of copyright involved in all machinima productions, which give a need for licensing; which are addressed by Microsoft and Blizzard by means of a "machinima policy."

For those of you who have been living in a cave -- on Mars! -- since 2003 (the year Red vs. Blue stormed the internet), machinima is the use of a pre-rendered engine to make a film. It's often been compared to digital puppetry. It's become a popular art form, in part because it minimizes production costs and requirements, and in part because it often utilizes games that people enjoy. Of course, because the art often makes use of someone else's game engine or game assets, there are a lot of copyright issues involved. Thankfully, both Microsoft and Blizzard have made many of these concerns much simpler by publishing machinima policies.

"If you want to make machinima, you need only locate the appropriate rules and follow them."

"Machinima rules" simplify the creation process. If you want to make machinima using one of the games covered by the rules, you need only locate the appropriate rules (i.e., Microsoft or Blizzard) and follow them, or use one of the contact links to discuss an alternate license agreement. Generally, these rules are pretty straightforward and allow many machinimists (or machinimators) to produce their products so long as they're not receiving revenue and follow a short list of rules. Microsoft's rules, for example, limit the types of content you are allowed to create by forbidding obscene material. It's also required that you grant Microsoft a license if your work tells a "back story" or "lost chapters" or other fan fiction-type themes related to Microsoft's characters and universe, which is generally to protect future games in case some story element happens to be similar to someone's machinima.

These companies are granting specific licenses for use of their copyrighted material. If your use goes beyond the borders of a license, then you will need a bigger license. For example, if you wanted to use one of the games from the Microsoft list to create a for profit machinima, you would need a license that allowed you to use the items commercially. That license would likely have to be negotiated with the company directly, and in the interest of simplifying that process, both the Microsoft and Blizzard guidelines have a contact e-mail.

So what about the rest of the machinima universe? This is where things get trickier, and given that there are hundreds of permutations of fact scenarios, I'll try to keep this as generic as possible. In general:

1. You own the copyright to things you create, but you won't own the copyright to elements you don't create without a license.
2. Your creation as a whole will fall somewhere on the derivative works scale, and without a license is generally going to be infringement.
3. Fair use may apply in certain situations, but to date it hasn't been relied on.
4. Regardless of all of the copyright issues, you may still be in violation of the End User License Agreement (EULA) or other terms governing your use of the game.

With any game based machinima, there are two major realms of components: things you create and things someone else creates. The first category will generally include the script, the voice acting, and sometimes the music. The second category includes, generally, the game engine, the game assets (character models, sound effects, etc.), and sometimes the music. The bit that falls into limbo is the actual video of the game being played, which you recorded, but is entirely derived from what falls into the second category. As we discussed two weeks ago, it's a derivative work, and therefore is under control of the copyright owner. Accordingly, it falls into the second category. The point of this categorization is that you can copyright things in the first category, but not in the second, without a license. There's one exception, and that is where the script is a derivative of another work. For example, if I took all of the lines from an episode of The Simpsons and re-recorded them with new voice actors to create a machinima, then that script isn't my work. In fact, even if I changed a few lines, it would still likely be infringement because of the substantial amount of cribbing. In sum, assuming the script is generally original, then it could be copyrighted as a written document.

A similar line of questioning I've seen presented a number of times revolves around the use of content creation tools. Specifically, if you're using the game engine, but you've re-skinned everything, made your own map, and used your own sound effects, is that machinima still a derivative? The best answer is that it is a derivative of a derivative, since the game mod is a derivative of the game and the machinima is a derivative of that mod. Think of this example: Back when Nissan released the Xterra, it was built on the same frame and with the same engine as the Frontier. You could think of the Xterra as a derivative of the Frontier. If you then took the Xterra and changed out a number of parts, like the bumper and wheels and tires, then your Xterra would be a derivative of the original Xterra. Similarly, the game engine is like the frame and engine, your mod is like the original Xterra, and the machinima would be your personally modified Xterra. (Of course, there aren't the legal ramifications involved with car modification.)

"Machinimists who are aiming to profit, will likely continue to face greater scrutiny."

The fair use issue comes up often, and while it was discussed at length last week, I'll try to summarize here. Essentially, unless you fall within the letter of the fair use rules, you're unlikely to be able to claim fair use. With regard to machinima, parody and satire are the most likely fair uses that can be relied on, but as I mentioned before, to date no one has attempted to do so on any commercial machinima. As to non-commercial machinima, most of the reliance on parody or satire has come under the already acceptable umbrella of the Microsoft rules.

Of course, much of this is irrelevant if the machnima violates the EULA for the game, and often times, it does. This question is entirely dependent on the game, however. The important first step is to review the EULA, and if there's any question as to whether the use violates the EULA, the safest approach would be to consult an attorney or attempt to get an answer from the game company (in writing!) about your particular planned use.

As machinima continues to gain popularity, it is entirely possible that other game companies will have their attorneys draw up machinima rules to follow the Microsoft lead. Rules like that would greatly simplify many of the issues facing those who wish to make machinima for fun. The machinimists who are aiming to profit, on the other hand, will likely continue to face the greater scrutiny of acquiring their own commercial licenses, a task that will require some very skillful negotiating.

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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.

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