The Creator's Legal Clinic: Advices and Explanations

MushroomCake28

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@GLM Like I explained, copyright isn't like patents: you don't need to register it to gain the copyright. Copyright rights are born as soon as you create something original. Some countries do have some kind of national registry/database for copyrighted works, but it is not necessary to register your work in order to claim copyright over it.

Intellectual property is a passive right, meaning that you're the one who has to enforce it. The state won't take care of it. If someone steals your work, it is your job to find it and sue them.

So to answer your question, everything you create is already copyrighted to you. Just be sure you can prove you're the one that created it (shouldn't be too hard if you kept the files).
 

GLM

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I'm not conceded enough to really think people will actually try and steal my setting and stuff, but you never know.
 

atoms

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@GLM To be honest you never know when and how it could happen. I didn't make any copyright content but I did make a simple RTP game a few years back, it wasn't bad but, on reflection now, it definitely wasn't anything what I'd think many people would end up playing (and that was the case!). I'd say it had a few good ideas, that a few people in feedback thought too, though. So maybe it was just this being the reason, but still, someone copied the video and duplicated it on YouTube and added, what I think was, a virus link instead. They made about 5 duplicate videos, not sure if it was the same account or not. Luckily without me even reporting it 5 months later it looked like the channel(s) and videos were removed.

I know this example is slightly different, but yes it made me realize, if someone is willingly to do that for nothing, no matter how good or bad your art or other creative stuff is anyone out there could try and take it, sadly.

So if you put your artwork in a game and post it on YouTube, this sort of thing could happen to just give one example.

Best to take the advice imo, and it shouldn't be hard or much effort to keep original files.

That way, if someone does ever steal your work, hopefully you can fight back against it. (I don't want to suggest it will happen, I'm just letting you know even still, with what you said, better safe then sorry!)
 

GLM

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@atoms I guess I'm already covering my butt because I have lots of files to back it up. Now that I think about it, I've had my terrible early 2000s weeaboo drawings stolen online. People will do anything provided they think they can get away with it, I suppose. :kaosigh:
 

Terozu

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Me and my brother are messing around on a Final Fantasy fan game.(non commercial obcviously)

And I had some questions about copyright. Obviously we can't use their music.
But can we use unique creatures?
I'm talking about creatures like the Cactaurs, the Tonberries, Chocobos and of course Moogles.

I know we can use most summon names as long as our designs are original. For instance we can use Bahamut since it's from ancient Myths, same with Leviathan, and as long as Carbuncle isn't a Fennec Fox we can use it as well. Ifrit is fair game since he's just a Djinn and Shiva is murky. But in general summons are fair game due to their own nature of being based on actual myths.

But creatures like Cactaurs and the others, are, to my knowledge, fully original creations by Square Enix.

So does anyone know if using them is allowed? Obviously we'd want Chocobos since they're the main mounts of the game. And moogles are basically a must have for the style we're doing(job system like FF5, and in general older feel).
 

Kes

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@Terozu We have a thread which looks at questions like this, so I am merging your post into that one.
 

EthanFox

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But can we use unique creatures?
I'm talking about creatures like the Cactaurs, the Tonberries, Chocobos and of course Moogles.
Generally, the answer is "no". If you're making a non-commercial game, you might "get away" with it, but that's just because it would slip under the radar, and you might find yourself on the end of a cease-and-desist if the game becomes popular.

To focus on Chocobos as an example, it's specifically going with that type of creature with that name which would be a problem. A Chocobo is really heavily based on a real life riding ostrich, so the idea of the Chocobo is totally safe for even a commercial product; just not if you call it a Chocobo and make it look like one.

Bear in mind even characters like Shiva aren't quite so simple, because while Shiva is based upon myths, if you were to create a Shiva character who is summoned in battles, is an ice maiden and uses ice attacks, Squeenix could still claim you are infringing upon their rights.

Consider that the Tolkien estate owns the concept of "Hobbits". You can't use the term "Hobbit" in other media (that's why they're called "Halflings" in D&D).

Now, whether or not these sorts of things "would stand up in court" is more complicated. The legal state of video game characters, their appearance and mechanics are kinda murky in law, because they're still quite young and haven't been tested enough times to give a firm grounding, so there's a bit of guesswork involved. However, realistically, if Square-Enix threaten to sue you over using one of their properties, are you going to meet them in court? Probably not. Most indie creators won't bankrupt themselves on case that they'll probably lose.

My advice, in the end, would be to avoid it and make changes to the characters and creature types.
 

Terozu

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@Kes thx
@EthanFox
Yeah I noted Shiva as Murky.

The other Summons, such as Bahamut, Ramuh, Leviathan and Ifrit are MUCH more general in design.
Ramuh is an Indian god of lightning, Bahamut is a giant fish but has been described as a dragon for years, Ifrit is literally just a Djinn(and is also a character in Star ocean 3), Leviathan is a biblical thing.

Shiva however gets her name from a blood and battle goddess. Her appearance is occasionally similar to religious depictions but the ice thing is entirely Square's.

I know that FF's classes are basically free game as long as you make unique costume types for them since they existed long before FF, the monsters were the real point of contention, some are easy, like goblins others aren't like Tonberries. Of course we could always just use more unique things akin to Bravely Default's summons and monsters.
 

D.L. Yomegami

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This question was addressed somewhere before, but it slips my mind as to exactly where.

Anyway, the Creative Commons 4.0 license has this restriction:
No additional restrictions — You may not apply legal terms or technological measures that legally restrict others from doing anything the license permits.
However, the official DLC from the RPG Maker Store (or Steam) has the requirement of needing to be encrypted to be used, and I imagine encryption (even RPG Maker's default encryption) would count as a technological measure. Is that true, and thus would effectively prevent official RPG Maker DLC and resources with the Creative Commons 4.0 license from being used together?
 

MushroomCake28

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This question was addressed somewhere before, but it slips my mind as to exactly where.

Anyway, the Creative Commons 4.0 license has this restriction:

"No additional restrictions — You may not apply legal terms or technological measures that legally restrict others from doing anything the license permits."

However, the official DLC from the RPG Maker Store (or Steam) has the requirement of needing to be encrypted to be used, and I imagine encryption (even RPG Maker's default encryption) would count as a technological measure. Is that true, and thus would effectively prevent official RPG Maker DLC and resources with the Creative Commons 4.0 license from being used together?
Good question. The answer is yes, you can still use them together. Encryption doesn't violates the license (of course that's my legal opinion. It can be argued in court, but I'm pretty sure I'd win).

So let's analyze the question so you can understand why. First of all, there's a difference between rights and obligations. An obligation is a legal duty to perform or refrain from performing an action. The key word here is "legal duty", meaning that it is mandatory to accomplish the agreed upon object. A right is a privilege or power by which a party can execute or not execute an action. There is no obligation here, so the person is free to act upon their rights or not. Last thing, generally the rights of a party in a contract is the obligations of the other party, and vice-versa (for example, when you buy a game, the seller has the obligation to give you the game, and you have the right to play the game, and the seller has the rights to receive the agreed payment and you have to obligation to pay it). With that in mind, let's examine the rights and obligation of the Creative Commons 4.0 license (based on the link you sent):

Rights of the gamedev, obligations of the resource creator :
  • The gamedev has the right to share the material.
  • The gamedev has the right to adapt the material (modify the material).
Obligations of the gamedev, rights of the resource creator:
  • Attribution rights: the gamedev has the obligation to credit appropriately the resource creator, to put a link to the license, and to indicate if there were any changes to the material.
  • The gamedev has the obligation to make sure the resources aren't placed under additional legal restriction as defined by the license.
So your question is related to the second obligation of the gamedev. Although it is undeniable that encryption is a technological measure, the question really is if it "restrict others from doing anything the license permits." There are many good arguments why this cause no problem in our case, but here's my main argument: The license gives to the gamedev two rights: the right to share, and the right to adapt. Nowhere in the license is the usability of the resource a guaranteed rights. Therefore, by encrypting the resource, the gamedev still allows someone else access to the file and the ability to modify the file, even though the file isn't readable without the key, which might have been the intention of the gamedev. Encryption doesn't violates any of the rights. (elegant isn't it? I love arguments like this one).

Another argument (perhaps more mainstream and more pragmatic) would be that by giving credits when using a publicly available resource (which we can assume is the case because of the license), another gamedev (let's call him gamedev B and the one who used the asset first gamedev A) who plays the game can have access to the original asset directly from the asset creator instead of from gamedev B. Therefore, the asset is accessible to gamedev B with the same rights and obligations as gamedev A. If there are 2 ways to do something and one is no longer possible, you can still achieve the same result by using the second way.
 

Restart

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Your interpretation is at odds with that of Creative Commons, who explicitly included that clause specifically to prohibit DRM. (The Open Game Art team went on to create the OGA-BY license as an alternative which allowed DRM, because of this clause.)

We could go deeper with rights granted by the sharing clauses and media/format clauses, but let's ignore that right now. Even if we were to concede that argument, let me pose the following (very plausible) scenario:

I wish to exercise my right to distribute CoolCar.png, a CC-BY licensed asset included in CarQuestMV.

If the assets are left unencrypted, I can obviously do that with no problems.

If the author of CarQuestMV encrypts its assets, everything is rolled into a single file, and the other non-CC-BY assets are ones I have no license to redistribute. In this case, the files being encrypted (through both technological and legal encumbrances) is, in fact, restricting me from being able to exercise my right to distribute CoolCar.png. Which is a clear violation of the CC-BY license.
 

MushroomCake28

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@Restart I was merely establishing a legal interpretation of the 4 clauses that Yomegami sent me in the link. If there are any other articles/clauses that weren't in the link, then that might change my answer (if you have a link please post it). First of all I see no problem if the file is available for free online by the asset creator. Why try to get the file from a game when you can get it directly from its source. With the credits that the gamedev is supposed to give, it wouldn't be too hard to find the resource. I would imagine that license is usually used for free to use assets online that merely wish to get credit. In that sense, the fact the a single user of that asset make it so that the asset in his game isn't accessible doesn't mean that the asset itself is not accessible.

If the author of CarQuestMV encrypts its assets, everything is rolled into a single file, and the other non-CC-BY assets are ones I have no license to redistribute. In this case, the files being encrypted (through both technological and legal encumbrances) is, in fact, restricting me from being able to exercise my right to distribute CoolCar.png. Which is a clear violation of the CC-BY license.
Well first of all MV encryption keeps the files separate, so it would avoid this issue. However, if it's all in a single chunk, there are 2 possibilities in my views: all the files inside the chunk can be shared, or some files in the chunk can't be shared because of legal circumstances (copyright). In the first scenario, I still see no problem with the license. In the second scenario, that would indeed cause a problem since you can't share it. That isn't an issue with the fact is encrypted, it's an issue with how the files are stored. But then again, regardless of what I just said, I see no problem if the asset is easily available online since another gamedev can just grab it easily (again, provided that it is cleared stated who the asset creator is, which is one of the terms anyways).

Honestly if they don't want people encrypting CC4 files at all, it should be more clearly stated in the articles. A contract is the law of the parties, and misunderstandings in the contractual relationship is what causes lawsuits. Personally, if I used a CC4 assets, encrypted it, and someone told me I'm in violation, I would just respond "well then see you in court" lol.
 

Restart

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First of all I see no problem if the file is available for free online by the asset creator. Why try to get the file from a game when you can get it directly from its source.
Because the game creator was legally obligated to allow you do it? Why should I have to try tracking down the file from some other source when I have it right here? I have the right to share and reproduce the asset in any format I care to, after all. Just because the end user could accomplish something in a different way doesn't obviate your legal responsibilities, in the same way that just because there's another way to go around your house, if you agreed to an easement you still have to allow people to walk over your property.


Anyway, there's a pretty thorough FAQ about the licenses on the Creative Commons website, which makes it a lot easier for artists to understand it. Here's the one about DRM.
Can I use effective technological measures (such as DRM) when I share CC-licensed material?
No. When you receive material under a Creative Commons license, you may not place additional terms and conditions on the reuse of the work. This includes using effective technological measures (ETMs) that would restrict a licensee’s ability to exercise the licensed rights.

A technological measure is considered an ETM if circumventing it carries penalties under laws fulfilling obligations under Article 11 of the WIPO Copyright Treaty adopted on December 20, 1996, or similar international agreements. Generally, this means that the anti-circumvention laws of various jurisdictions would cover attempts to break it.

For example, if you remix a CC-licensed song, and you wish to share it on a music site that places digital copy-restriction on all uploaded files, you may not do this without express permission from the licensor. However, if you upload that same file to your own site or any other site that does not apply DRM to the file, and a listener chooses to stream it through an app that applies DRM, you have not violated the license.
(note you are allowed to encrypt files if they don't hinder the recipient from exercising their rights - if, for example, you email the files to them through an encrypted client, or pack them in an password-protected zip file and give them the password, that encryption in and of itself does not violate their rights to use the assets)


Similarly, making the file impossible to read violates the right to change formats
When I release my work under a CC license in one format (e.g., .pdf), can I restrict licensees from changing it to or using it in other formats?
No. CC licenses grant permission to use the licensed material in any media or format regardless of the format in which it has been made available. This is true even if you have applied a NoDerivatives license to your work. Once a CC license is applied to a work in one format or medium, a licensee may use the same work in any other format or medium without violating the licensor’s copyright.
Media and formats; technical modifications allowed. The Licensor authorizes You to exercise the Licensed Rights in all media and formats whether now known or hereafter created, and to make technical modifications necessary to do so
If you can't access the resource in a comprehensible way, you can't change the format to something else - and as established, you are required to ensure that you do not technologically restrict anything that is permissible under the license.

Now, I don't think any judge in the world would agree that an encrypted, uneditable file can still be "translated, altered, arranged, transformed, or otherwise modified in a manner requiring permission under the Copyright and Similar Rights".

(And if you want a professional opinion from legal experts, the Institute For Information Law at the University of Amsterdam said this, in the paper: Creative commons licensing for public sector information: opportunities and pitfalls.)

But, under your interpretation, what actually would constitute a breach of the 'effective technological measures' clause?
 
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MushroomCake28

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@Restart The University of Amsterdam doesn't prove your point. It just points to the general idea behind the clause, while recognizing the conflicts within the clause and the objective of the clause (meaning asset freedom vs personal freedom). It supports your idea, but that's only one interpretation, and from Amsterdam (Canada and US prefer personal freedom while Europe tends to prefer safety, in this case legal safety).

Also, FAQs about license have no legal authority. It can help to point to what a party might think the terms mean, but it doesn't mean that this will be correct interpretation (or at least the one a judge would retain). It often happens that a judge says that a FAQ has no authority and interprets a law/contract in the opposite direction (very frequent in the field of fiscal laws for instance).

Again, as a law student (in Canada, law might be slightly different in other counties), with the 4 articles provided (I'm not going to read a 100 pages documents just for a question on this forum), I see a flaw in the terms and I would exploit it. I could even ask for the terms to be void if it gets to court. The reason for that is that it never specifies that a third party must be able to have access to the gamedev's file, it only says that the third party must have access to the file, meaning where the file comes from doesn't matter, as long as it is accessible and known by the third party (which if you credit the asset creator, and just to be sure put the link where you got the asset). So the third party has access to the file, but just not from the project but from the asset creator. Think of it this way: if I have 2 copies of the file and one is encrypted but not the other, would you consider that the file is accessible? The answer has to be yes. Now, if you have 1 encrypted copy of the file in your game folder, and you have text document that credits the asset creator and links to the site of the creator where you got that file, would you consider that the file is accessible or not? (assume no edits on the file, it's the same as on the site).

The only potential breach I can see is if the gamedev edits the asset to create a variation, then it would have the make that edit accessible to respect the terms. In that scenario, it is safe to assume that the gamedev is the only one with that version of the asset, so if it becomes impossible to get that specific variation of the asset, the terms would be breach. So basically, I'm just exploiting a loophole in the terms that doesn't specify the source of the asset, but if the asset is a variation or an edit, that would make it unique, therefore a "new" asset that would need to be accessible.

There would also be a case against my argument if the gamedev doesn't credit the asset creator. In that case, of course it's a breach of contract since the gamedev didn't credit the asset creator, but you could argue that not knowing the source of the asset makes it too difficult to get from the original creator that it should be consider inaccessible. However, the case of just providing credits without a link to the creator's site would be in the gray area.

Truth be told, we can never know who is right until it gets before a judge and is ruled on. And even in that scenario, it would also depend on the jurisdiction of the judge, although most developped countries have agreements regarding copyrights consistency between them. I could still argue that this is a contractual issue, therefore copyright agreements have nothing to do with it, but you can argue against that.

EDIT: @D.L. Yomegami with new evidence of interpretation of the clause by the author of the clauses, they seem to not want people to use encryption on assets with the CC4 license attached to it. I explained that I see a flaw in the license that would still let you encrypt the asset without breaching the license, provided you credit the asset creator and just to be safe include the link to the website where you got the asset. If you want to sure just in case, you can encrypt the asset, but keep a second copy that isn't encrypted in the game files.
 

Restart

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@Restart The University of Amsterdam doesn't prove your point. It just points to the general idea behind the clause, while recognizing the conflicts within the clause and the objective of the clause (meaning asset freedom vs personal freedom). It supports your idea, but that's only one interpretation, and from Amsterdam (Canada and US prefer personal freedom while Europe tends to prefer safety, in this case legal safety).

Also, FAQs about license have no legal authority. It can help to point to what a party might think the terms mean, but it doesn't mean that this will be correct interpretation (or at least the one a judge would retain). It often happens that a judge says that a FAQ has no authority and interprets a law/contract in the opposite direction (very frequent in the field of fiscal laws for instance).

Again, as a law student (in Canada, law might be slightly different in other counties), with the 4 articles provided (I'm not going to read a 100 pages documents just for a question on this forum), I see a flaw in the terms and I would exploit it. I could even ask for the terms to be void if it gets to court. The reason for that is that it never specifies that a third party must be able to have access to the gamedev's file, it only says that the third party must have access to the file, meaning where the file comes from doesn't matter, as long as it is accessible and known by the third party (which if you credit the asset creator, and just to be sure put the link where you got the asset). So the third party has access to the file, but just not from the project but from the asset creator.
It sounds like you didn't read the full license - am I misunderstanding you?

Think of it this way: if I have 2 copies of the file and one is encrypted but not the other, would you consider that the file is accessible? The answer has to be yes.
Yes, this is an easy step, that costs literally zero money, which a creator could take in order to ensure that they are unequivocally upholding their end of the contract.

As a lawyer, would you advise your client to take this step, or to risk getting their game hit by a DMCA takedown from the asset's creator, and potentially go to court?

(Also note that even if you managed to win, you would end up provoking essentially the entire copyleft community, and in addition to the awful publicity you'd get, the inevitable appeal would be extremely-well funded)
 

MushroomCake28

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@Restart I did not read the full license, you are correct. Too long for something I'm not giving legal advice. As for my "shortcut" solution to include an unencrypted version of the file, I believe it makes it so the contract is respected safely. If the DMCA would flag that as a breach of contract, it would mean bad faith (well at least it could be alleged) since the terms AND the spirit of the contract have been respected, which is actionable.

Not including an unencrypted file and simply giving credits and linking the website is something I would consider to respect the contract. But due to the uncertainty and the risk of a pointless battle against copyrights owner and possibly the DMCA, I would never recommend someone to go that route, even though I believe it is not in breach of contract. Hence why I told @D.L. Yomegami to include an unencrypted copy of the file if he really needs to encrypt his files.

There is a difference between purely legal matter and practical matter. Is encrypting the unmodified file, crediting the creator and linking to the website a breach of contract? I believe that it isn't, but there could be a case against and it could go to court. If simply adding an unencrypted version of the file provides the client with safety, then of course I would advise to do it. Practicality is always over the purely theoretical law. My point is more that I see a flaw in the contract that I believe would make me win, but I wouldn't risk a client's safety just to prove it. Maybe if I become rich and am bored I'd take on some fights like these in court just for fun, but not for now lol.
 

Restart

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Okay, I must have missed the 'include an unencrypted version of the asset in your game' bit in your initial response. In that case we totally agree on what creators should do, and I'm sorry for misunderstanding your stance.
 

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Apologies if this has been noted before, but I'm curious: if you have a ******* (or any sort of consistent crowdfunding) does that automatically makes anything you release technically indirectly commercial as it has potential to bring in supporters and thus more income?
 

MushroomCake28

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Apologies if this has been noted before, but I'm curious: if you have a ******* (or any sort of consistent crowdfunding) does that automatically makes anything you release technically indirectly commercial as it has potential to bring in supporters and thus more income?
This is not a thread for legal advice concerning personal matters (since that would require an attorney and would be liable if anything happens). This thread is simply to give the theory of the law on certain matter, purely theoretical.

As for the commercial aspect of a project, the general rule is pretty clear:
Code:
The term “used for commercial purposes” means the carriage of persons or
property for any fare, fee, rate, charge or other consideration, or directly or indirectly in
connection with any business, or other undertaking intended for profit."
(18 US Code Section 31) (https://www.law.cornell.edu/uscode/text/18/31).
Naturally, indirect income would include any revenue made in a sponsorship relationship. If a projects or a business (even personal businesses) makes money, provided the source of income is in relation with the project and/or business, the project becomes commercial. There are some exceptions to the rule however, for example non-profit organization. But those are exceptions to the general rule.

EDIT: I can only give you the general rule applicable in theory. Perhaps your situation has something different (like ******* linked to a personal youtube channel, not your game making for example). Regardless, I would proceed with caution if I were you. Indirect revenue can be defined really largely.
 
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Got it, and this isn't a personal situation, don't worry. That was a theoretical question, but I'd always wondered considering Youtube channels that seem to use copyrighted material, but make money indirectly.
 

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