"Name Your Own price" - Is my game commercial?

[Mettool]

I've done a fairly thorough search of the forum and other resources and I'm unsure of whether or not putting up a game with an optional price would classify my game as commercial.

For example, If I put my game on, say, Itch for free with a "name your own price" option at checkout, does this put my game into commercial territory? Or would this be considered non-commercial with a donation incentive?

I'm sure the answer to this is fairly simple, but I needed to make sure. Thank you!

 

[tearsofthenight]

Any amount of money (even 10 cents) is considered commercial

 

[Ms Littlefish]

I believe that would classify as commercial. I'm certain donations (and prize money for that matter) would as well. Basically, if money could potentially be involved it would probably be wise to act as if the game is commercial when it comes to resources, ect. Terms can vary widely so there's sort of a grey area here.

 

[kiddeath95]

Since your having some form of money being put into the game, donation or not, I would say that it would be commercial. But if you had a team, and you had people donate to the team, then that might be a different story?

 

[Haydeos]

I'm not a lawyer...I wouldn't risk anything if I were you...Just give it for free, then a bunch of people will know you. Then when you make a game that you know 100% can be commercial, more people will buy it. Maybe.

Having said that, the whole thing is stupidly muddy, IN MY OPINION, if you don't HAVE to pay for a game, then it's not technically commercial.

 

[Mettool]

The only things in my project that it would cause problems if it was considered commercial are a couple of scripts, so I was unsure if I should acquire licenses/permissions for them (which I'm going to pursue just in case) before thinking about putting the game up on a "pay if you want" site.

I want the game to be free regardless. And I'm definitely okay with the idea of my project being on free-only sites if there are legality issues.

 

[kiddeath95]

Do you have a team for this game? If so, I think you could have people donate to the team and there wouldn't be an issue.

 

[Tsukihime]

I've done a fairly thorough search of the forum and other resources and I'm unsure of whether or not putting up a game with an optional price would classify my game as commercial.


For example, If I put my game on, say, Itch for free with a "name your own price" option at checkout, does this put my game into commercial territory? Or would this be considered non-commercial with a donation incentive?


I'm sure the answer to this is fairly simple, but I needed to make sure. Thank you!

The simplest answer would be to contact the respective owners of any resources that you are using. For example, Some people are more lenient on devs that are just doing it for the greater good of society (with some donations from generous persons).

Having said that, the whole thing is stupidly muddy, IN MY OPINION, if you don't HAVE to pay for a game, then it's not technically commercial.

It gets complicated. For example, there's plenty of freemium games but most people wouldn't think twice about whether they're commercial or not.

 

[Kes]

Donating to a single individual or to a team makes no difference. A lawyer would shred you on that one.

 

[Niten Ichi Ryu]

If the game generate money in any way, would it be because of a price tag, possible donations or even ad revenues, it is commercial.

the question is not: "does the customer need to pay?", but "does this generate revenue in any way for the dev/dev team?"

As Tsukihime said, even a freemium you install on your phone, and for which you never use micro transactions is still commercial.

 

[Shaz]

Yes.  If you are aiming to make money from your game, it is commercial.

 

[Alexander Amnell]

In theory that would make your game commercial, in reality you'd likely not see a cent from it, and in practice you could be sued regardless of that. Donation buttons aren't worth doing, ever.

 

[Geoff Moore]

Hmm. I understand the problem with accepting payment for a specific game, but surely if someone gives away a creation for free, but accepts donations to support them as an artist, that creation is still free? Otherwise once you release a free game you could never ask for donations in the future.

 

[Alexander Amnell]

Hmm. I understand the problem with accepting payment for a specific game, but surely if someone gives away a creation for free, but accepts donations to support them as an artist, that creation is still free? Otherwise once you release a free game you could never ask for donations in the future.

   Think of it as a discrepancy between common sense and the law. Just because it shouldn't be viewed as commercial (mainly because donation buttons are notoriously untouched by downloaders of software) won't stop resource creators from coming after you for breaking their Terms of Use whether you've actually made any money or not and having a valid legal standing against you. When in doubt, ask permission. It's just the nature of the beast whenever a product is created with contributions from multiple people.

 

[Geoff Moore]

I completely agree that you should seek permission to use someone's work in a way that they are happy with, as a content creator that's extremely important to me. However, I find it impossible to believe that anyone's terms of service would ever require that someone using their work in a game can not make any money from making games in general. Not profiting directly from that particular game when a player obtains it or through in-game purchases or as a prize from a competition, sure. Not profiting from making games in general, now or in the future? No, that would be completely ridiculous to ask for, and surely impossible to enforce.

 

[Kes]

 Not profiting from making games in general, now or in the future? No, that would be completely ridiculous to ask for, and surely impossible to enforce.

Where has that sprung from?  No one has ever said that a developer can never make money from game making in general.  What is being said is that if a particular game solicits donations then it is considered commercial.  The only time that it could get ambiguous is if the developer has a site with many of her/his games on it and the site as a whole has a donations button.  However, I don't think that is the case here.

 

[Ms Littlefish]

There are a number of reasons why someone may only have their materials available for non-commercial use. It's also common that some materials require a licence to be used commercially. Even if the donation were made directly to someone instead of "to the game" I think it would be difficult to argue that they did not profit from the materials in some way, thus the need to obtain commercial permissions. 

 

[Geoff Moore]

I kinda speed typed my last posts, I should have taken a little longer over them. In particular I should have made it clear that I was not responding to the OP, but to the conversation that followed it.

 

Basically what I'm saying is if you release a free game which doesn't offer the chance to pay for the game's download, but you accept donations to your game development in general, I'd be very surprised if anyone would have a problem with that, and even if they did, that they would be able to take action against you, regardless of where and when you solicit those donations. When I said now or in the future, I was basically thinking of a scenario like this, for example:

 

2015 - a developer releases 'Free Game', a free game using a track I have permitted to be used in non-commercial projects.

 

2015 / 2017 / whenever - said developer starts accepting donations for their game development. Someone donates to them. Let's even go as far as the player sending a note that reads "I just played 'Free Game' and really enjoyed it, here's some dollars to help you continue making great games."

 

Now, the person received a donation purely on the strength of "Free Game", so in theory I could argue they've profited from a game that used my track, which is only allowed for non-commercial projects, and therefore broken my terms of service. But as it was a donation to the developer, and not specifically a payment for "Free Game", that seems completely unfair to the developer, and I find it hard to believe I could take action against them.

 

Surely there is a clear distinction between:

 

1) Allowing someone to pay for the download of a game that uses non-commercial resources, at which point you are offering the customer the possibility to give you money specifically to play that particular game - in my opinion, this is clearly a TOS breach.

 

2) Giving a game that uses non-commercial resources away for free, but accepting donations as a developer. The game is free, and therefore surely any donations cannot legally be considered as payment for the game. I can't imagine a resource creator objecting to this, and even if they did, I can't imagine it being possible for them to take action against the developer.

 

Does that make more sense? I'm a little feverish at the moment, it's entirely possible I'm talking utter rubbish, and I'm perfectly happy to be put in my place.

 

[Niten Ichi Ryu]

even if the donation is for the dev in particular and not about the game, that is still generating revenue for the Dev.

so it's commercial.

Even if you had your game available free on a website that generate revenue trough ads, the game would be considered part of what generates the revenue, so Commercial.

 

[Lunarea]

@Geoff:

Sure, there's a difference between someone accepting money for their game specifically, and someone accepting a general donation. But that's irrelevant to the definition of "commercial". If money comes into play, it's commercial. The degree of it might be different, and what the threshold is for when commercial TOS comes into play can depend on the artist.

For example, I think most artists wouldn't mind if a developer solicited small donations (ex 100$ total) to help them with hosting costs. However, they would mind if a developer implemented mandatory "donations" before someone could download their game and made thousands -- but got away with it because the income was "donation-based". It sucks that the rules punish honest devs because of a few bad apples, but that's how things have to be in order to keep them simple.

If you want to be completely safe and not have to contact any resource creators, then you shouldn't have any income or donations.

If you want to have donations/income - regardless of whether they're for the game itself,  or for hosting,  future game development and so on - contact the resource artists and get their ok. That way, you know you're covered.