The Creator's Legal Clinic: Advices and Explanations

Discussion in 'General Discussion' started by MushroomCake28, Apr 26, 2019.

  1. MushroomCake28

    MushroomCake28 KAMO Studio Veteran

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    Disclaimer: Knowledge and limits of responsibility

    First of all, let me say that all incoming advices and explanations are from me. My legal knowledge comes from currently being a Law student at a Canadian University with about one year left (at the time of writing, April 2019. I still got to take the Bar afterward), and I mostly focus on commercial law (when we have optional classes, I usually take all the commercially related ones since I want to practice in that area in the future). So not being a barred attorney yet, I can't give legal advice for a client, nor do I have the necessary legal insurances. However, what I can do (and will do here) is give explanations on general questions and give general advices on general situations. What I can't do is give specific advices for someone pertaining their particular project or business.

    On that note, feel free to ask anything that isn't specific to your project. I will answer to the best of my abilities and update the questions/answers list down below. Also, if there is any inaccurate information or error, please notice me and will correct it immediately.

    Note on the legal validity based on geographical jurisdictions
    An important and legitimate questions arises from the simple fact that many of us live in different countries than others and therefore abide by different laws and answer to different authorities. This however has a limited impact here since the most important rule in commercial law is that "the contract is the rule of the parties" and that it usually takes precedent over laws. This principle is however also limited by 2 facts:
    1. Contracts can't oppose public order laws (ex: you can't have a clause that makes someone a slave for all eternity since slavery is illegal in most countries), and public order laws are different in different countries.
    2. International laws and customs offer an international basis for certain things. Some customs are so uniform and used across the world that they constitute customs that can't be ignored by a contract, sometimes even explicitly (ex: the Force Majeure clause).
    As for the provenance of my legal formation, it will be mainly based on Canadian laws, more specifically federal laws (public sector) and Quebec's provincial laws (private sector). I want to add that Canadian laws have a common law tradition, so it highly resembles many things in the UK and other Commonwealth countries. In addition to that, Canadian laws are highly inspired by the United States legislation and jurisprudence, especially since the Canadian Supreme Court seems to almost be in love and always follow the US Supreme Court. So to sum it up, if you're from Canada, the US, or a Commonwealth country, chances are your laws are similar, or at least very similar, to what I will be describing.

    QUESTIONS: Everything on the subject of commercial and non-commercial
    Q: What makes a project commercial? (the principle of the commercial aspect)

    A: The general consensus in the usual business practices is that the moment you gain money, directly (ex: sell your game for a set price) or indirectly (ex: receive money from patreon, crowdfunding, adds), it makes your project commercial.

    Q: If my project doesn't make money, is it still considered commercial?

    A: It can still be considered commercial. Remember, the principle to evaluate if your project is commercial is to ask yourself if your project makes money directly or indirectly. The criteria isn't if your project makes a profit, it's either it generates money or not. Do not forget that profit = money generated - money spent. The money spent is not relevant to the commercial attribute of your project.

    Q: If all the money I receive is used to finance the project, by for example buying assets, and that I also make no money from my project, can it be considered non-commercial?

    A: No. How you spend your money is irrelevant to evaluating the commercial aspect, or lack of it, of your project. The question isn't how the money is spent, it is if there is any money earned directly or indirectly by or for the project.

    Q: Does that mean that the moment I buy an asset, it makes my game a commercial game?

    A: No, your game can still be considered a non-commercial game, but there are a lot of things to consider. First of all, let's be reminded that the commercial aspect can be defined in a contract with the asset creator. In that scenario, the definition of commercial will be the one from the contract, not the one from the laws and customs. However, in the lack of a consensual and contractual definition, here's what happens:
    • If the money comes from your own pocket (1) and wasn't earned in relation with your project (2), your project will be considered, in general, non-commercial. Makes sure both criteria are met, and even then it might be considered commercial. Bear in mind that even if you're right, any disagreement on the commercial aspect of your project is susceptible to be decided in front of a judge, and nobody wants that.
    • If you do not met both criteria, it's probably a commercial project. If the money is earned in relation with your project, it means that your project generated directly or indirectly money, so I once again have to refer to the commercial criteria.

    QUESTIONS: Intellectual property
    Q: Can I use the default RPG Maker RTP assets in other projects?

    A: The answer depends on 2 criteria that must both be respected:
    1. You must own the RPG Maker Engine from which the RTP assets you are using come from.
    2. You must use those assets for a project created with an RPG Maker Engine.
    In order for you to be able to use RTP assets in your project, you must respect both criteria. Here are a couple of examples of legal and illegal usage:
    • Using RPG Maker MV's RTP assets in a project created with RPG Maker MV: legal of course.
    • Using RPG Maker VX Ace's RTP assets in a project created with RPG Maker XP: legal if you own both VX Ace and XP. If not, it's illegal.
    • Using RPG Maker MV's RTP assets in a project created with Unity: illegal.
    Q: Do I have to register my project to have the intellectual property on it?

    A: No. For most countries, the creator is presumed the legal owner of his work and have the intellectual property on it. Furthermore, because of many international conventions, you can claim your ownership in most countries. However, some countries allow you to publicly register your work legally by following a procedure, but that only helps you reinforce your ownership presumption. This is an unnecessary step, but could help if you want to be extra safe. However, I believe that the inconveniences of the procedure (usually annual costs, annual review, or the hassle in general) is not worth for most project of little size.

    Q: What's the difference between a patent and a copyright, and is it relevant here?

    A: No, it isn't relevant. Patents and copyrights are two different types of intellectual property that offers the owner of its right the exclusive right to exploit the object of the intellectual property. However, that object differs for patents and copyrights.
    • Copyrights: They protect the right of the author of an original work, that is either literary, dramatic, musical and artistic (it is a limited list of categories in Canada because of the Copyright Act, but the general idea must be the same for other countries). The work needs to be original.
    • Patents: Is an invention, not a work, which refers to any "new and useful art, process, machine, manufacture or composition of matter, or any new and useful improvement in any art, process, machine, manufacture or composition of matter" (Patent Act, Canada). That list is generally an exhaustive list of categories (in Canada, see Havard College v. Canada, [2002] 4 RCS 45). Furthermore, the invention must be completely new, it must be useful (so have a practical application), and must not be evident (easily deduced).
    As you can see, copyrights protects work (simply have to prove the originality of the work) and patents protect invention (have to prove that it's from one of the named categories, that it is new, have a practical application, and isn't evident). In the case of game projects, it is a work of art and is therefore protected only under copyright laws. Unless you create a game engine which use new rendering and computation techniques, you own copyrights, not a patent (which must be filed anyway).
     
    Last edited: Apr 26, 2019
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  2. Finnuval

    Finnuval World (his)story builder and barrel of ideas Veteran

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    This is gonna be useful to link to next time someone asks about it :cutesmile:
     
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  3. MushroomCake28

    MushroomCake28 KAMO Studio Veteran

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    @Finnuval Yeah that's exactly why I created this thread. People often have the same set of questions.
     
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  4. atoms

    atoms Veteran Veteran

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    @MushroomCake28 Really well explained, thanks. Just one more thought I have. Perhaps add an explanation as to which category donations fit in as well? So, for example, sites like Itcho, I notice RPG Maker projects can be free, but gives the option to give the developer of the game a small donation.

    Does that then also count as commercial? As you can gain money through it, but the definition of that money is still all optional donations.

    That's one thing I'm not sure about, based on what you wrote here I'd almost say commercial, but I still can see it going both ways.
     
    Last edited: Apr 28, 2019
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  5. MushroomCake28

    MushroomCake28 KAMO Studio Veteran

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    @atoms First of all, if you are trying to determine if it's commercial or not to be able to use some third party assets (DLC), don't forget that the definition of "commercial" is determined by that third party.

    If there is no definition, donations would make a project commercial usually. The money you receive would be indirectly related to your project, which would make it commercial. The criteria take into consideration the "why" or "how" you receive money. The moment your project makes money, no matter how, it should be consider commercial. So yes, donations count as commercial.

    One way to bypass that would be to be considered a non-profit organisation, since they are allow to make money if it's to pay the expense of their non-profit activities, but honestly I wouldn't go there. First of all, what defines a non-profit organisation and their advantages is very different depending on countries, and even if you are one, you'd still have to convince others that aren't from your country that you are one.

    Hope that helps.
     
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  6. atoms

    atoms Veteran Veteran

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    @MushroomCake28 I see, to me that's also the most sensible approach in most cases to still see optional donations as being commercial. But knowing for certain that they are almost always commercial is something I've been wondering, and I can also see knowing that information for certain could possibly help certain people for sure.

    Thanks for all the very useful information here, and the answer to my question too!
     
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  7. Marquise*

    Marquise* Veteran Veteran

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    Thanks! I am Canadian too and... yeah let say on an international level, protection of IP concerns me a lot. ^^
     
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  8. Kupotepo

    Kupotepo Fantasy realist Veteran

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    @MushroomCake28, isn't true that if people who determine to sue you will you sue no matter what? No matter how bad faith of a case might be. Before a lawsuit, there are alternative dispute resolutions such as arbitration and mediation, negotiation. That was my thought when I listen to my defense lawyer professor's cases. Some people use lawsuits to make money from poor people which is fearful of long draining lawsuit attack.
     
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  9. MushroomCake28

    MushroomCake28 KAMO Studio Veteran

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    Great to see a fellow Canadian (may I assume Quebecois also?)! As for intellectual property for game makers as ourselves, we don't have much to worry about since we are well protected legally.

    Yes there are "alternative" ways to fix a conflict. We call them private dispute preventions and resolution processes. They aren't real alternatives, since they happen before a trial to prevent a trial. If an agreement is reached after using one method of private prevention and resolution process, there will be no need to go to trial (you often see it in legal tv series lol). Mediation and arbitration are some of the private dispute prevention and resolution process.

    Mediation is a process that happens before a trial and if success will end in an agreement between both parties (so no trial). If unsuccessful, a trial will occur. But "agreement" is the keyword here: you need the consent of both parties.

    Arbitration is a kind of private trial (with both parties, their attorneys, and a real judge). It must be agreed in advance in a contract (like for example for a co-venture between two companies, they will agree to fix all there problems through arbitration instead of a trial), meaning before there is any trouble. So once a problem arises, you can't just decide you don't want to do arbitration since you already agreed to do it contractually. The advantage over a traditional trial is that it isn't public (which is the main concerns of companies that don't want their legal problems made public) and it's faster (easier and faster rules for evidences, witness, ruling ,etc.).

    Well everyone has the right to sue, even for terrible reasons, and yes a lot of people (usually company) use that power to threaten people or put pressure on a less powerful competitor. However, remember that good faith is presumed and that it is to the party that alleges bad faith to prove it. There are ways to throw those cases away before they start, usually during a pre-trial hearing where the defense often try to justify to the judge that the case has no legal basis, or is a result of bad faith. However, I don't think people use bad faith lawsuits to steal money from poor people... I mean poor people have no money to steal lol. It's a lot more likely that companies use bad faith lawsuits to try and kill a weak and new competitor that just entered the market.

    As for us, game makers, I don't think we have to worry about going to court honestly. Going to court takes time and a lot of money, and unless there's a certain amount of money involved, people don't really to trial. It would be silly to go trial, win 100$, but have to pay 1000$ (legal fees are much higher than that usually lol).
     
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  10. Kupotepo

    Kupotepo Fantasy realist Veteran

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    @MushroomCake28, lol poor people meant small businesses. I agree poor people do not have money and natural resource rights. Yeah, a cooperation do not just sue for fun, it sues to weaken a competitor.

    Advisement: if you do not know where to get help, you came to this place.

    We needs an tax account, an politcal consultant, an marketing adviser, and an business, and a doctor. This website might be Jack of all trade website.
     
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  11. MushroomCake28

    MushroomCake28 KAMO Studio Veteran

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    @Kupotepo Lol. Although I don't know what we could do with a political consultant? Take over the world?
     
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  12. Kupotepo

    Kupotepo Fantasy realist Veteran

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    @MushroomCake28, advertising for an election campaign and being annoy to other people with surveys. I should make a survey who here are running for an office despite local or national lol. I would be surprised.
     
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  13. Kes

    Kes Global Moderators Global Mod

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    @Kupotepo Please don't - it's likely to turn into a political discussion, which we don't allow.
     
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  14. VitaliaDi

    VitaliaDi Jedi Master Veteran

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    Wow thanks for the share. This is really important stuff to know
     
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  15. VitaliaDi

    VitaliaDi Jedi Master Veteran

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    @MushroomCake28

    I know rips aren't allowed on this forum but I have a few questions about using them for a fan game.

    1. If I credit the original artists is it okay or do I need express permission to use it without getting in trouble? I know it can be a gray area and depends on how popular your game becomes and how much attention it attracts for you to actually get into trouble.

    2. I have a game planned and I've made my own sprites in the game style so I think that one would count as fanart and would be mostly fine. But would I need to edit all of the tilesets above resizing them to avoid a lawsuit, even if the game is non-commercial?

    3. If I've edited the sheets will I be able to post my game on here? I assumed I'd avoid posting it on these forums because of the rip rules which I assume are to avoid legal issues.
     
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  16. MushroomCake28

    MushroomCake28 KAMO Studio Veteran

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    So just to start things off, rips aren't legal by definition. A Rip is taking a resource from a project that doesn't want to share its resources for other projects, so by definition it is violating intellectual property. No matter who you credit or what you do, unless you were given explicit permission from the holder of the intellectual property of those resources, using rip is illegal, thus why this forum bans rips (and discussions about them too btw).

    Rips = can't use.

    If you're talking about other third party resources, then you need to refer to their terms. If they say anyone can use their resources if they get credits, then you don't need their direct permission (meaning no need to contact them). Otherwise, you'll need their direct permission. Simply crediting the artist only works if the artist's terms allow such a thing.

    Also, there's a difference between legal/illegal and getting in trouble. Just because you've used illegal someone else's resources doesn't mean the police is going to take you in. Intellectual property is passive right, meaning the holder of a right must actively come forward to enforce his/her right: in other words, the one who holds the intellectual property over the resource you're using illegally must sue you. If you're game has like only 100 downloads, chances are that the artist won't even know. However, that still makes it illegal. As a someone in the law field, I have to strongly suggest not doing it, even if you won't get in trouble, since it's illegal.

    So one thing at the time. I'll start with fan-art. If you made your own sprites that were inspired on something else, you're fine. As long as you don't copy, everything that you create is owned by you. Now the line is thin and gray between copy and inspired, but that's a factual question and not a legal one. Meaning that if you ever get sued, it's the judge that is going to determine if it's a copy or it's inspired.

    Now about the non-commercial aspect of a project, it doesn't change anything when it comes to intellectual property. If you've violated someone's copyright, no matter if you're project is commercial or not, it's illegal. The only difference is when it comes to the damages: if your project made money, the holder of the copyright can claim all your revenues. In both situation (commercial and non-commercial), the holder of the copyright can ask the judge to shut down your project though.

    About editing, I'm not sure what tileset you're talking about. But let me say this: editing a rip doesn't change the fact that it's a rip, and therefore illegal.

    See the above point: editing a rip does not make it a non-rip. It is therefore still illegal, and banned from this forum.
     
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  17. VitaliaDi

    VitaliaDi Jedi Master Veteran

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    @MushroomCake28 Thanks! I understand the whole topic a lot better now and will stick to the legal route ofc. Thanks again
     
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  18. VitaliaDi

    VitaliaDi Jedi Master Veteran

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    If I'm making a fan game and use references to canon character with their name and also canon place names is this illegal? Like, does "inspired" mean that my game will have to look like a knock-off rather than a fan-game? With my game being completely free
     
    Last edited: Jun 3, 2019
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  19. MushroomCake28

    MushroomCake28 KAMO Studio Veteran

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    @VitaliaDi Like I said, that is more a factual question rather than a legal. Legally, inspired is allowed and copy isn't, but there's isn't a universal rule to separate both. It's a case by case analysis. My best advice would simply to try to differentiate from the original a bit. Also, chances are you are not going to get sued, especially over fan-art.
     
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  20. GLM

    GLM ブラッドシェド © 1989 POLOCOM Member

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    Thanks for the information.

    I'm using custom.. everything for my project and was wondering if I should copyright the whole thing just to be safe since it (ideally) shouldn't really be apparent it was made with MV. How big should a project be before you would recommend doing so?

    (I'm not trying to disparage RPG Maker or anything, but I'm mostly using it as a way to program without needing too much outside help.)
     
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