"Indirect" Commercializing?

[skaiano]

Let's say someone finishes production on a game and releases it for free. Let's say there is user generated content in use by the game at the permission of all appropriate creators/owners. Now let's say that the creator of this game can produce some artwork and music. Let's he takes this and strikes a deal to profit from things like T-Shirts or CD sales based upon game-related content he generated.

Basically, is he allowed to merchandise off of his free game? Basically, it would be a free game making use of other people's assets but is part of a larger commercial operation.

This really confuses me because from a legal standpoint, it seems viable. But from an ethical perspective it just feels a little hazy.

 

[Ronove]

There are a ton of free webcomics that rely on merchandising (like Homestuck--it's a free webcomic but he sells merchandise which allows him to live off his webcomic). I'm not entirely sure why it would feel a little hazy unless it's like a fangame or something like that.

 

[Baka-chan]

Let's say someone finishes production on a game and releases it for free. Let's say there is user generated content in use by the game at the permission of all appropriate creators/owners. Now let's say that the creator of this game can produce some artwork and music. Let's he takes this and strikes a deal to profit from things like T-Shirts or CD sales based upon game-related content he generated.

Basically, is he allowed to merchandise off of his free game? Basically, it would be a free game making use of other people's assets but is part of a larger commercial operation.

This really confuses me because from a legal standpoint, it seems viable. But from an ethical perspective it just feels a little hazy.

If you are using ressources that are only allowed for non-commercial use then you aren't allowed to use any of the ressources printed on merchandise even if the game itself would be free. If you use your own ressources on the merchandise then there shouldn't be a problem if I'm not wrong.

 

[skaiano]

There are a ton of free webcomics that rely on merchandising (like Homestuck--it's a free webcomic but he sells merchandise which allows him to live off his webcomic). I'm not entirely sure why it would feel a little hazy unless it's like a fangame or something like that.

Well yeah, it's a free webcomic, but I would assume it is generated entirely by the creator. (I'm actually not too familiar with homestuck, but it is on its own domain correct?)

Now I guess for this allegory, let's say someone makes a webcomic using base-art. Maybe they can't draw people, but they can draw emblems or something. Would they be authorized to merchandise off of the emblems they generated, even though the rest of the free product is essentially unoriginal?

(Thanks for the reply btw)

 

[skaiano]

If you are using ressources that are only allowed for non-commercial use then you aren't allowed to use any of the ressources printed on merchandise even if the game itself would be free. If you use your own ressources on the merchandise then there shouldn't be a problem if I'm not wrong.

Thanks for the reply, lol, when you said that I started imagining someone printing furniture tilesets or something on T Shirts. That'll sell. xD

 

[Ronove]

Well if their emblems are 100% original and made by them, I don't see why they couldn't sell it. They obviously can't use the base art because it's not theirs. But like Baka-Chan said, as long as they aren't printing tilesets, charasets, etc. they didn't create on t-shirts or mugs and selling them and only stick to what they themselves made, I don't really see a problem with it.

 

[Andar]

skaiano, please avoid double posting, as it is against the forum rules. You can review our forum rules here. Thank you.

If you want to quote several posts, please use the multiqiote option.

To be completely on the safe side, simply use only resources in your game that are allowed for commercial uses - there are a lot of them.

That said, I really doubt that tilesets or similiar things would work on merchandise - same goes for most scripts, so you can use those resources if only the game remains non-commercial.

However you have to check every term-of-service: There are a few scripts where the TOS specifically state that the use is considered commercial if the game is involved in generating money, even if the game itself remains free.

Most effective for creating merchandise would be logo's and Portraits - which should be done for you exclusively if you want to have any success, I don't think many people would pay for a shirt with an RTP-Portrait on it...

And that means you'll have to check with the artist when you commission or request those pictures.

 

[skaiano]

Got excited, Lesson learned.

This is where it gets "hazy" for me. Because, yeah, I don't see a problem with it legally. All the technicalities seem to check out. It's again, the ethical standpoint that sorta freaks me out.

This is almost like a legitimate way to "take the money and run." It's like... I don't know, enterprise off of association. Just imagine the following:

"Oh hey look at me, I'm skaiano, I don't know how to sprite or script, so I'll just implement other people's stuff and release it for free cause that's ok! Hm, but there's one thing I do know how to do! Draw silly anime characters! Now, assuming the characters grow popular enough, I'll just slap a fandom-appealing picture of cultural relevance on these baseball caps and make gaziliions of dollars. All for me and none of it for any of those guys that worked hard on making all that other stuff."

See what I mean? Because the guy wouldn't technically be making money off the game, or making money off of merchandised assets (rofl, did NOT think of merchandising scripts, ha) but making money off of things merely associated with it. It all looks right, but somehow feels kinda wrong. I'm probably over-thinking it, as I tend to do with a lot of things but it's just... I don't know, like a bunch of volunteer kids banding together to make a community mural, then some guy coming along and merchandising it for tourists. Eh... how confusing. Anyway, thanks all for coming in and offering your views on this topic, I like the directions the thread has gone into.

(Still, imagine something like "# new method: start_pseudo_animation ©Yanfly" written across a shirt. xD)

 

[Andar]

Don't worry, that won't happen...


To get any boost from a game popularity (you could try to sell your merchandise without making a game, you know...), you need to provide a good game.


That means a lot of new artwork (which you need to make for selling anyway) in a game lasting a minimum of two or three hours - anything shorter won't be remembered to create sales.


Making such a game requires a lot of work on mapping, storywriting and playtesting - so in the end the game (if it's worth mentioning) will contain hundreds of your work hours. And at that moment no one will have any problems with you making a few bucks out of it, because you probably put more work hours into that game as anyone else.

 

[skaiano]

Hm, adequate point. Very adequate point. I think that may be just enough to resolve the way I'm looking at it. (The way I'm allegorically, hypothetically looking at it. Eeeughh) Though I feel there is still some wiggle room for someone down the line to still file a claim somehow, I think Andar's last point really gave me the perspective I was looking for.

Thank you all so much again for your participation, I am more than satisfied with the feedback you've all offered!

 

[Shaz]

If your game is free, your game is free. If you make OTHER things to sell based on your own work, that's not a problem. If you start using non-commercial resources from your game in those things to sell (like compiling a soundtrack to sell, based on tracks that are in your game, but were provided for non-commercial use) THEN there will be issues.


If your free game using non-commercial resources is popular enough that you can launch a "side business" selling merchandise, and that merchandise does not use any of the non-commercial resources, then it's not a problem. The resources are in the game, and you're not selling the game.

 

[cosmickitty]

I'd still contact the people who own the resources, never hurts to be thorough.  Explain the situation and verify that they are okay with their work being used, more than likely it'd be fine.

 

[amerk]

However you have to check every term-of-service: There are a few scripts where the TOS specifically state that the use is considered commercial if the game is involved in generating money, even if the game itself remains free.

I would imagine things like this are a long shot, and depends on what you're trying to promote. If you're selling T-Shirts to promote your free game that uses certain resources or scripts where such a TOS would apply ((assuming the game is your original idea and not a fan game), the only way I can think it would be violating that TOS is if I used those resources on my T-Shirt or posted images of the game mechanics with the scripts in question in place.

If I simply create a T-Shirt, draw up my own artwork from scratch, and attach my game's name to the shirt, or if I were to develop and sell a novel based upon my free game (as long as the story, character, settings, etc are all my own ideas), then the TOS would have no bearing as a result, since I'm not selling anything with those resources or scripts in place.

 

[cosmickitty]

I think it would depend on the resource honestly.... I mean if I released assets under CC then I don't see any issues, but if you "hire" someone to make custom free work and then turn around and make profits off the game, in any aspect, I would feel differently. 

 

[Shaz]

Really? I would be pretty upset if I paid someone to make some audio tracks for my game, released it for free, and then they told me I couldn't sell t-shirts or mugs with the game's name on them because their audio is in the game.

 

[cosmickitty]

I guess I only see it from an artists opinion.... but if I made all the characters for a game I could see being a tad iffy on someone profiting from putting what I assume would be the games logo or title on a shirt and selling it

 

[Shaz]

If you made the characters for a game and the t-shirt used just the game's logo, which you didn't make, I don't see how you could have any say in whether the t-shirt could be sold or not, since the t-shirt is not using any of the resources you provided.


USING someone's resources on the items to be sold is one thing - if I wanted to show a character's face on the t-shirt, I would run it by the artist first. But if I'm not using a resource someone else provided, then no one else has a say in it, as far as I'm concerned.


Maybe it depends on whether the resource was provided for free or not (though only if the resource was being used in the item being sold). If I pay someone to make a sprite for me, I believe I am entitled to use that sprite in the current game, in other games, as promotional material on my website, and for things like t-shirts, mugs, whatever. What I CANNOT do with it is claim that I made it, or sell it to someone else. If I wanted to GIVE it away (like releasing it on the site), I would discuss with the artist first, and if they were agreeable, we would sort out the terms together (what others may or may not do with it).

 

[Engr. Adiktuzmiko]

yeah, ultimately, it all comes down to the agreement between you and the creator of that custom resource... it's always better to ask them personally than rely on the opinions of others...

 

[Victor Sant]

Using your game as advertising of an product is using it commercially.You gaining profit from your game.

If the resource author have some terms around commercial use, then these term will apply to your game.

 

[Lustermx]

Using your game as advertising of an product is using it commercially.You gaining profit from your game.

If the resource author have some terms around commercial use, then these term will apply to your game.

So if someone makes a non-commercial game and later on makes a commercial game, but uses the non-commercial game to grow success on the commercial one, would that be considered using the product commercially?

 I wouldn't think so...