Copyright/Remixes and posting games on Rpgmakerweb

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10kk

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First of all I want to point out that this thread is not meant to cause arguments, I am just trying to have some things clarified and want to pose a few questions to figure it out. I am not arguing for using copyrighted material in games, that is not the point. I would just like to know how situations are handled and what I am allowed to submit as a Completed game, and the risks associated.
Also these questions are a result of myself reading many other threads pertaining to Copyright and remixes on the forums, and they are not answered in those threads. I did my best to research every staff response and couldn't find solid answers. I would prefer answers only if you absolutely know the forum rules or are staff :rhappy:

Q1: In an original non-profit non-trademark infringing game, I use a song that was uploaded to Newgrounds under the Creative Commons (CC) license, which does not meet legal "Remix" criteria (Fair degree of unrecognizability). As a game creator, am I liable for using this unknowingly-copyrighted material, when it was wrongfully uploaded with the CC license? Does that extend to RPGmakerweb for hosting the link to the game?

Q2: If a game containing content like that is posted to rpgmakerweb, is it your guys prerogative to remove the game's post immediately, or only to comply to DMCA?

Q3: If someone knowingly uploaded a game with copyright infringing material, and they are fine with taking the risk of it being DMCA'd, is that honored in the Completed games section?

Q4: If Q3 is not allowed, and it's the copyright holder's legal judgement to decide if something is not a legal remix/art/etc, do you take that initiative if you are not liable? (The EULA pushes oweness onto the user, so isn't the Company and forums protected?)

Q5: How do you determine the legality of assets that appear to be edited copyrighted material? It seems impossible to actually prove if source material was used without the creator stating it. A lot of art can be done on memory and is feasible. (For example, a lot of swords in the Resource section are VERY inspired/borderline copyright but are claimed as original and honored by rpgmakerweb).
 

bgillisp

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Hate to say it, but for those you will probably have to ask a lawyer. Most of those are so detailed and so specific it would take official legal advice to handle, specifically your first point.
 

10kk

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Hate to say it, but for those you will probably have to ask a lawyer. Most of those are so detailed and so specific it would take official legal advice to handle, specifically your first point.
Do you think you could give your guys stance on Question 2 and 3? There's various totally defunct/collapsed studios that could never file DMCA as the copyright is basically in eternal limbo, actually a lot of that exists but is just hard to find unless you know it. There's also copyright holders I know would never file DMCA but just curious if you guys remove things on principle or on DMCA.
 

sura_tc

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Consult a lawyer is my advice.

You shouldn't blindly trust any of answers given by others on such issues.
 

bgillisp

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Usually for 2 since we can't know every game and every game's content it is follow DMCA. But if we know right away it has infringing material we refuse to let them host it. But do know we don't play through every game posted in an thread unless we suspect something about it, in which case we might play an hour and see if it looks legit.

Note though I'm not the usual moderator for completed games forum though, and am still learning policies there, so don't take this post as an absolute.
 

MushroomCake28

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Law student here. My general advise would be... to consult a lawyer if you're really serious about this (because we can charge a lot of money, even if it's for a single hour of consult). But let me try to give you a general idea. Don't take what I'm saying directly and think of it as advise for your situation. Consider it a general idea of generalized situations:

Q1: Yes you are liable in that situation. Being a non-profit doesn't exempt you from copyrights. There are exceptions where a non-profit can use copyrighted materials (like for educational purposes, etc.), but let's not get into that. General answer is yes you are liable. Also infringing on copyrights unknowingly still makes you liable. The intentional aspect of it only plays a role when determining the fine usually (or to determine if it's civil or criminal).

As for rpgmakerweb's liability, legally it's a factual debate. The question would be as follow: is this site considered as a publisher or a platform? If it's consider as a platform, it will not be liable because platform are not responsible for content posted by their users as long as the platform has fair rules that are reasonably enforced. If it is considered as a publisher, it will be liable. Now which one is this site? I would argue that it's a platform, but you can also make the case for it being a publisher. That's what I mean by it's a factual question. The defendant (you) would usually plead in court that it's a platform and opposing counsel will argue that it's a publisher. Generally, most sites like this one will not want to take the risk in court, so they'll just remove your game, which is generally enough to kill the lawsuit.

Q2: No one is forced to do anything without a court order. This site could literally give the third finger to anyone who wants the site to remove something. That will probably mean a couple of lawsuits though. In reality, no one wants a lawsuit since it's time consuming and costs a lot of money, so this site will probably immediately remove something with copyright infringements. Please note that this is general rule for businesses, I'm not a representative of this site so what they do is completely up to them.

Q3: Again, I'm not a representative of this site so I can't speak for them. However, I can tell you as an active member of this community that this forum does not take copyright infringement lightly. Multiple stuff have been taken down because of copyright infringement, even if partially. If you're outright saying in your game description "we have stuff that we don't know if it infringes or not on others's copyrights", or you just say that you have copyrighted materials in your game, chances are mods are going to take your game down, or they won't even allow it to be posted. However, no one really says that they infringe on copyrights, so unless you say it, no one will know. That said, once someone discovers that you have some copyright infringements, this site will most likely take down your game. Like I said, this site is very serious when it comes to copyright.

Q4: Not a representative of this site, so can't comment.

Q5: Edits of a copyrighted asset is still protected by the original asset's copyright. You can edit an asset without the consent of the original asset owner. Also, you can't use edits that were illegally created. Now, to determine if an asset was edited or was simply inspired, that's purely a factual question. There is no general rule, it's a case by case analysis. Also, for very simple stuff, you can't copyright something that is too simple and/or not original. When it comes to ideas, now you're in the patent laws instead of copyright laws, and patents have much more severe criteria to be protected (you can't have a patent for ideas).
 
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Don't overthink this. You say that you know that your game includes copyrighted material that you do not have a license to use. That is the essence of the matter. The rest seems to be you asking whether you can get away with it. If YOU know that it was wrongfully labeled with a CC license, then that should be the end of it. Not as a lawyer, but as an artist, I'm saying DO NOT USE artwork without asking permission from the copyright holder. There's a good chance for a non-commercial project they'll be happy to have their work adapted for use. But you should check first. If you cannot contact the copyright holder, then you should refrain from using the music in your game.

I'm a bit surprised by the leniency shown by Mods here, but obviously I'll defer to their suggestion that you consult legal advice.

As a creator, I would not use something that was not either A ) original B ) public domain C ) properly licensed or D ) an appropriate combination of A B and C.
 

somenick

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If your game is only casual (played by a few people) chances are that copyright holders will not sue you, because lawsuits costs time and money. Even if the game has ads on it, makes a little money, or the like, they will probably not sue you.

- HOWEVER -

Should your game somehow become highly popular things could change very quickly. So it is better to never use any materials that you don't know if you can use or not, so you always stay on the safe side of things.

And you can always be liable for using copyrighted materials, even if you did not know about it. It is always a risk, for example, we cant possibly know if an asset is truly public domain. Someone may slip something onto OpenGameArt website, for example.
 
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Andar

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There is something that @somenick ignores with that advice.

Copyright is civil right, so the IP-Holder needs to know about your infringment before he (and only he, no one else) can take action against you.
That is the reason why sometimes an infringment will look as if it has been ignored for years (when the IP-owner didn't know about it) before being taken down fast (after the IP-Holder learns about it).

Second, there are a lot of countries where IP-Holders are legally required to go against any IP-infringment or risk loosing their property.
That has happened several times before (it basically goes: you knew about that non-commercial violater and never did something against him, so you can't sue me for this commercial violation either because you already gave up your copyright for that other case)

So no, it is never a good idea to continue using illegal materials after you've learned about that fact. No judge will fine you if you take something down as soon as you know about it, but if you continue to use it after you have been informed of a violation then you will get problems.

@Starbird_Resources That is also why the mods here are seemingly tolerant: No one can check every resource posted in real time, and sometimes false accusation of copyright infringement were made to harm other people so the law is tolerant until first proven notice.
And as soon as the IP holder asks about it or if the mods get proof of illegal resources, they are directly removed. You can see the cases in older resource posts if you look for them. But it needs that info and proof to the mods first to get a reaction.
 

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This thread is being closed, due to being solved. If for some reason you would like this thread re-opened, please report this post and leave a message why. Thank you.

 
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