Do "Name Your Price" games count as commercial?

[TheNothingMonster]

Some publishing sites I have come across allow the uploader to either set their games as free, paid, or let the audience choose whatever price they want to pay (AKA: Name Your Price).

Knowing that there is the option to download a project for free in the latter cases, are these projects commercial, non-commercial or something in-between? For instance, if someone uses non-commercial-only materials or scripts, will it be fair to set the game's price as “Name Your Price” or is it advised to release it for free?

I reckon the second option, but I want to be completely sure.

 

[ATT_Turan]

If it is possible for you to receive money from it, that's commercial.

 

[Finnuval]

As @ATT_Turan says and to specify a little further : it's not wether or not you actually make money of it but rather if you potentially COULD make money of it that makes it commercial.

 

[Andar]

And as a third aspect - you're asking from the wrong direction.

What really counts is not your definition of commercial use, but the (licence source) definition of commercial use.

You are obviously asking because you have some resources with a licence "free only for non-commercial" or the like - otherwise you wouldn't bother to ask.
In all such cases what counts is the definition of the artist for whatever has that "only non-commercial" licence.
If said artist says that a single donation button on a free download site for the game counts as "commercial use", then THAT definition counts and not whatever someone else said.
And yes, that was a specific and real example of a programmer who is no longer active in the community but made that definition for the use of his scripts at the time of VXA.

So if you really want to be sure, then you would have to contact every artist of the resources you use that give such a licence to ask them if they consider that commercial use or not.

 

[lianderson]

I don't think it should be, but it don't matter what I think. It matters what the artist and law thinks.

 

[Andar]

law thinks.

no, because the law has no opinion on this.

Copyright Law is civil law - which means it does absolutely nothing until the copyright holder (the artist) tells someone "this is a violation and I want to sue them".

That is why so many violations stay on the internet for a long time - the copyright holder needs to know of something and where it is before he/she could initiate the process of takedown.
And absolutely no one else can initiate that takedown, all everyone else could do is contact the copyright holder and inform them.

 

[gstv87]

there needs to be established that the price the people is paying is directly connected with the use of those assets that were deemed not-for-commercial-use.
if the game can be downloaded for free regardless, then there's no direct link between the payment and the acquisition of that game.
an action that itself can be prosecuted for violations of various OTHER laws, but that's up to the relevant authorities.

if the terms of use of the assets you get state "exclusively for non-commercial use", you better get a clarification from the author stating that "you're authorized for this exception".... otherwise they can claim commercial use under the scope of [you running a business off the trade of making games, regardless of profit] instead of [you making a profit for the sell of this specific product, regardless of business model]

as times go, you need to speak at least five languages: your native language, a lingua franca, and also Engineer, Lawyer and Doctor, just in case.