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

[Haydeos]

I wonder, are there any court cases that can set a precedent for such matters? Specifically concerning how donations affect free games containing assets that don't allow non-licensed commercial use. I've seen a lot of posts (like mine) saying opinions as though they're legal facts, it'd be nice to see some actual rulings to back up any claims.

(There's a weirdly specific sentence I never thought I'd type)

 

[Geoff Moore]

I know money is commercial. I agree that you should always ask if you're unsure. But how the money is obtained would surely be a deciding factor in any legal argument. You can't just legally enforce whatever you decide to write in a TOS, right? It has to deemed fair, or enforcable, or whatever, by a lawyer.

I guess what I'm interested in, opinions aside, is whether anyone has ever gotten into legal trouble with a resource creator for accepting donations or making money that wasn't directly related to the player obtaining the game in which the resource is used, or through IAP in said game. My Google-fu seems to be failing me on this one, all I'm finding is a few threads similar to this one with no definitive answers.

 

[Kes]

You can't just legally enforce whatever you decide to write in a TOS, right? It has to deemed fair, or enforcable, or whatever, by a lawyer.

Hmm, well, actually you can.  As the artist you have the right to say under what terms your work can be used.  If the artist were to say that it could not be used for commercial purposes, then under contract law they have made an offer.  You, by using that resource, have accepted that offer, again under contract law.  In the UK, that principle of offer and acceptance has been established in precedent since 1893.  It is now a universally accepted principle of contract law.

In order to be deemed unfair or non enforcable (by a court, btw, not by a lawyer) then the burden of proof would be on the defendant, not the plaintiff, and the bar is fairly high on that.  There is the further principle of caveat emptor which would reinforce that.  Even if you were to succeed, the legal costs would dwarf any donations that you would be likely to receive.

 

[Geoff Moore]

That's interesting, some good info there. And yes, I can see how this kind of hypothetical legal battle would not usually be worth fighting. Still, without any evidence anyone's ever got into legal hot water over donations not specifically related to the download of the game using the resource, I just can't imagine it happening. To me, this would mean that a customer buying a separate game on the strength of having played the free one would also breach the TOS - yes, the developer has received money as a result of making the free game, but the resource creator surely wouldn't have a leg to stand on. I'd be really surprised and interested to learn of a case where a developer got into trouble for indirectly profiting from a completely free thing, and if no such case exists I would argue that donations are a non-issue.

 

[Lunarea]

I'd be really surprised and interested to learn of a case where a developer got into trouble for indirectly profiting from a completely free thing, and if no such case exists I would argue that donations are a non-issue.

Here's the thing... No current legal precedent does not imply that there never will be a legal precedent or that it's risk-free. You're essentially banking on the idea that the other party won't want to pay the costs of taking you to court over indirect or minimal profits, but there's no guarantee that it will play out that way. The affected party might decide to use you as an example and aggressively pursue you for damages - which would end up costing you far more than what you gained through the donations, not to mention end up affecting your reputation as a developer and customer.

It is simpler and much safer to get permission from the people whose material you're using.

 

[Geoff Moore]

It is simpler and much safer to get permission from the people whose material you're using.

I absolutely, 100% agree. Again, I'm a resource maker myself. My interest regarding donations in particular is just that; interest. I hope I haven't come across as someone who would disagree with your statement.

 

[Tsukihime]

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.

That would likely be considered an indirect source of income, which would be considered commercial use.

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:

Let's say someone used your resources to put together a free game, and the game went viral and a million people sent you a dollar and now that person is a million dollars richer.


I would be very interested in this million dollars, especially if it is apparent that the game was directly, or indirectly, the reason why people decided to send you money.


Do I have any right to the money? Hard to say. That person could argue that it was due to their own skills and effort that they have managed to reach such a large audience. Except other people's resources just happened to be involved. They didn't intend to make any money; people just happened to give them money and they just happened to accept it.


Would I be able to take legal action against you? That's a different story, but that's basically arguing that you'll be safe because the other party can't afford to press charges.

 

[Niten Ichi Ryu]

@ Geoff Moore,no if someone buys a game, there is a transaction, and thus its commercial, but only that game. If you host one free game and one paying game on your webpage, only the paying one needs to satisfy the Criterias for commercial. Now, if the site hosting them is having advertisements, both needs to satisfy commercial TOU.

@Tsukihime, no you might not have right to the money itself, but you commercial TOU still need to be respected. Question is how did people sent that dollar (x1million)? If the website use donations or any kind of transactions no excuses or doubt , and you could start suing the dude.

But then if the dude manages to convince1000000 dudes and dudettes sending him a Dollar in any other way( like getting bank details) , please refer him to me, I d love to start a business with that person...

 

[Wavelength]

If the consumer is being asked to "choose how much you want to pay" as they buy it, this sounds like commercial rather than non-commercial use.  It is somewhat different, in practice, from a "donation" system where people can freely share or download your game and choose to go out of their way to donate if they feel like it.

I have a "semi-commercial" category in my Terms of Use that covers cases like the ones mentioned in this topic where you are not directly selling your game to people, but the game is intended to make you money in some way (microtransactions, promotion of a business, contests with $500+ prizes, etc.), and my semi-commercial licenses are very cheap.  In my eyes your structure would definitely be a "semi-commercial" one but it's rare to find this kind of granularity in Terms of Use.

Since this is a relatively unusual structure, though, you should follow HIme's (and others') advice and check in with the individual artists/musicians/scripters to ask whether they consider such a use commercial, non-commercial, or otherwise.  Where you can't contact the resource owner, assume that your project is commercial and follow the commercial rules.