The Creator's Legal Clinic: Advices and Explanations

MushroomCake28

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@DemiDawnfall The term "commercial" can mean different things in different context. In the contractual sense, it usually means both direct and indirect revenue. For the IRS or another Tax Revenue Agency (in Canada for instance, since I'm from Canada), the commercial aspect of a personal business might have a minimum required revenue to be considered a business that has to file for taxes (where I'm from a business doesn't have to declare any revenue if it made under 30k$ in a year, therefore making it "non-commercial"). But yeah, for contractual matters (which I assume was what you're asking, like if you are using resources that can't be used in commercial projects for instance), it's better to stick to the direct and indirect definition.
 

MushroomCake28

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Added a section talking about team projects and the rights and obligations of people with a project where there are many contributors.
 

MushroomCake28

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Okay, I've added information in the intellectual property section about asset editing, the line between inspiration and infringement, some info concerning fair use, and I've added a note about paternerships in the Team Project section.

I have a specialized class on laws on intellectual property this semester (more specifically about patents and trademarks, copyrights next semester), so I will update this guide if I come upon interesting stuff that is applicable to our game developers.
 

oriongates

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I've got a question about something I'm trying to wrap my head around:

Is it a violation to refer to real-world trademarks/brands within a story.

For example, if a character were to say they were going to visit Walmart, or talk about "Googling" something.

I am just referring to dialogue here. I know (or at least I'm fairly sure) that you cannot use trademarked logos/assets (so using a screenshot or even an artistic depiction of the google search page would be out). Likewise, I'd bet that there'd be a problem with assigning a brand to an object or location in the game (for instance, setting a scene explicitly inside a Walmart store, or referring to a character's car as a Ford, even if you don't stick the logo on the sprite).

I'm just talking about referencing the existence or function of a brand (in a neutral fashion...not posting a rant about how awful X is or why Y is so much better than X).

I seem to recall that this was considered acceptable under some rule or other but I can't recall enough of the terminology to try and google it.
 

MushroomCake28

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@oriongates Very good question.

Theory

I'm not an expert in US laws, since I'm a law student in Canada, but the ideas are sometimes close (we're neighbors afte rall). What you might be referring to is Fair Use (only in the US btw, although we have something similar in Canada), a notion that allows one to use copyrighted assets without authorization within certain conditions. However, fair use is a notion that belongs to the copyright category, not trademarks (both are intellectual property, but not the same category). From my little research there seem to be something a little bit similar for trademarks, but it is a lot more restrictive than for copyrights. However, it is allowed to mention a trademark and to describe one.

Now, onto the next point. The usual criteria to know if someone breached someone else's trademark is the criteria of confusion (same for US and Canada from my understanding). To put it simply, if a regular person may think your product is the product of someone else because of anything attached to the product which is protected by a trademark, you have infringed that party's trademark. Here's the disposition in Canada, pretty similar in the US I think:
Canada Trademarks Act, (R.S.C., 1985, c. T-13), article 6:

When mark or name confusing

6 (1) For the purposes of this Act, a trademark or trade name is confusing with another trademark or trade name if the use of the first mentioned trademark or trade name would cause confusion with the last mentioned trademark or trade name in the manner and circumstances described in this section.

Marginal note:Confusion — trademark with other trademark

(2) The use of a trademark causes confusion with another trademark if the use of both trademarks in the same area would be likely to lead to the inference that the goods or services associated with those trademarks are manufactured, sold, leased, hired or performed by the same person, whether or not the goods or services are of the same general class or appear in the same class of the Nice Classification.

Marginal note:Confusion — trademark with trade name

(3) The use of a trademark causes confusion with a trade name if the use of both the trademark and trade name in the same area would be likely to lead to the inference that the goods or services associated with the trademark and those associated with the business carried on under the trade name are manufactured, sold, leased, hired or performed by the same person, whether or not the goods or services are of the same general class or appear in the same class of the Nice Classification.

Marginal note:Confusion — trade name with trademark

(4) The use of a trade name causes confusion with a trademark if the use of both the trade name and trademark in the same area would be likely to lead to the inference that the goods or services associated with the business carried on under the trade name and those associated with the trademark are manufactured, sold, leased, hired or performed by the same person, whether or not the goods or services are of the same general class or appear in the same class of the Nice Classification.

Marginal note:What to be considered

(5) In determining whether trademarks or trade names are confusing, the court or the Registrar, as the case may be, shall have regard to all the surrounding circumstances including

(a) the inherent distinctiveness of the trademarks or trade names and the extent to which they have become known;

(b) the length of time the trademarks or trade names have been in use;

(c) the nature of the goods, services or business;

(d) the nature of the trade; and

(e) the degree of resemblance between the trademarks or trade names, including in appearance or sound or in the ideas suggested by them.

Now, since the US supreme court considers video game as artistic creations protected by free speech under the first amendment (should also be protected under free speech in Canada, but I never read a case on that yet. Less cases in Canada), the protection is very substantial (see Brown v. Entertainment Merchants Association, 564 U.S. 786 (2011)). After that the courts have elaborated a test to see if the use of a protected trademark in a work protected by the first amendment called the Rogers test (from the Rogers v. Grimaldi case). Here's the test:
  1. whether the use of the third-party trademark has artistic relevance; and
  2. if so, is it deliberately misleading as to the source or content of the work. (which goes back to the confusion criteria mentioned above. In other words, would people think that the company that owns the trademark is the author of your game).
If the use of the trademark is artistically relevant and isn't misleading, it isn't an infringement of copyright.

Applied to this case

It really depends on your exact use. I can't give legal advice on a specific case since you're not a client, and second (and most importantly) I'm an attorney yet (still in school), even in Canada. All I can tell you is try to apply the Rogers test's 2 steps and you should have your answer.

Also, there are other people that just to be sure (or for fun, mostly for fun I suspect) modify the reference. For example, instead of saying Nintendo they say Bentendo (in Gintama for example). Although it doesn't help to when it comes to protection (because people understand that Bentendo is a parody of Nintendo, so there's a link between both words), it does help to shatter confusion because people know that Nintendo isn't the one who created Gintama.

Sorry for the long answer lol.
 

MushroomCake28

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I added a whole section on trademarks. It explains what a trademark is legally, who do you create one and own it, what protection you get and what are the legal actions possible to protect those rights, how trademarks work legally, and the possibility to use or refer to real life trademarks in your game under certain conditions.
 

Touchfuzzy

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Some posts have been removed from this thread, as they were deemed couonterproductive to the topic at hand, which is discussion of laws surrounding copyright and game publishing.

 

BreakerZero

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One thing after reading through all of this is that it raises a number of issues to account for when creating a game project or other artistic work. However, there's at least three other matters for which you may want to address:
  • Cases involving pranks that use actual products (see also Coca-Cola and Mentos)
  • Cases involving pranks which have had a canonical influence on the source material (see also Leeroy Jenkins)
  • Meme references involving material normally subjected to commercial rights acquisition (see also Rickroll gags)
 
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MushroomCake28

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@BreakerZero
Cases involving pranks that use actual products (see also Coca-Cola and Mentos)
I already talked about that in the trademark/brand section. As long as you are not misleading people to think you are affiliated with the trademark and that you are tarnishing the brand's image (defamation), you are cool. However, that does not mean you can download a logo online and use it. Even if it may be fine by trademark laws, it is infringing on copyright laws.

Cases involving pranks which have had a canonical influence on the source material (see also Leeroy Jenkins)
I don't get this part. What do you want to use? You want to make a reference to pranks or memes like Leeroy Jenkins?

Meme references involving material normally subjected to commercial rights acquisition (see also Rickroll gags)
Again, it depends on what you are doing. You might want to think about fair use too, if that applies (the context is too general, I can't answer).
 

BreakerZero

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I don't get this part. What do you want to use? You want to make a reference to pranks or memes like Leeroy Jenkins?
I was referring to the fact that the meme inspired a Hearthstone card which in turn is a spin-off from Warcraft, both of which are owned by the guys at Blizzard. Specifically, the fact that the prank was recorded in the MMO spin-off we call World of Warcraft is where the issue lies for the case.
 

MushroomCake28

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@BreakerZero I'm not a Hearthstone player, but I do know about the famous Leeroy Jenkins video from WoW. The prank itself is not the property of WoW, it's the intellectual property of creator of the video that posted on youtube. So that video is copyrighted. So far so good.

The next thing is determining if making a reference to that prank (I'm assuming it's a card that is making a reference to that?) in that copyrighted video constitute an infringement of copyrights. The copyrights protect in this case the usage of the video, partial clips, and screenshots from it I suppose. Referencing or naming a copyrighted material is not enough in most case to constitute an infringement. Furthermore, you can't copyright a word or a slogan. You can attempt to register them as a trademark, but trademarks don't offer the same extensive protection that copyright holders have.

Also, people seem to think it's very theoretical, but in reality intellectual property is a very practical area of the law and is very much a case by case scenario. In this case, I find it hard to conclude that there's an infringement of copyrights. Fair Use doesn't even need to be brought up (since there is no infringement imo).

EDIT: Note that a judge might disagree with me. Like I said, it's really a case by case thing. Personally if I was a judge (I have no such aspirations, my love for corporate law and money is too big) and such a case was brought to me I would throw it out the window.
 

BreakerZero

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Well, at least I still plan on cooking some chicken later this week. That also serves to answer my question regarding a joke that I was planning on implementing that would utilize the same or similar setup from the video in question.
 

MushroomCake28

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@BreakerZero I wouldn't consider using that sentence as copyright infringement. It's not enough in my opinion, but another lawyer or a judge might disagree. Even if it is an infringement, it could fall under fair use for parody, and the damage is minuscule to non-existing, plus the fact that it's such a tiny part of your game, I can't see a case building up just for that.
 

BreakerZero

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@BreakerZero I wouldn't consider using that sentence as copyright infringement. It's not enough in my opinion, but another lawyer or a judge might disagree. Even if it is an infringement, it could fall under fair use for parody, and the damage is minuscule to non-existing, plus the fact that it's such a tiny part of your game, I can't see a case building up just for that.
I was simply closing out the discussion in tune with the reference. That's all it was there.
 

oriongates

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I'm curious about something, is it permissable to use sourced quotes? Obviously anything old enough is in the public domain either way, but is there a legal way to use a quote...like just to pull an example out of my butt if I wanted to show this as part of a game's intro:

"Get busy living, or get busy dying." - The Shawshank Redemption
 

MushroomCake28

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@oriongates Technically it is possible to copyright quotes, especially if they are super famous and are easily recognizable. In reality, it's often disregarded and not considered an infringement, since no one owns a monopoly on common words. So it's a balance between both principle. How you're using it is also important. If you use that quote as a slogan and print it on some of your merchandise to sell it, then it will probably constitute an infringement of copyright, but it will probably not be an infringement if you use it as a joke, or as a single sentence in a video game.

If you want to be extra same, just indicate the source of the quote. But like I said, you're pretty much fine.
 

Elissiaro

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So I have a question.
If I make a sprite based on an RTP character, saving all the separate bits as I make it, and then use some of the bits to make a completely new sprite, can I use the resulting new sprite in non RPGmaker programs, or sell it?
Wondering since I've been thinking of remaking the RTP in my style.
 

MushroomCake28

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@Elissiaro What do you mean when you say that you're separating the sprite into little bits? Any edits to the RTP must obey to the RTP's license, meaning it has to be used in an RPG Maker Engine.
 

Kupotepo

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@MushroomCake2, I think cut out image in photoshop. Cut and paste basically, I would think likely answer would be no for resell and no for use in non-RPG maker related products. [Unless the term of use said you can do whatever you want] I believe the term of use RTP is you can use for non-commercial and commercial RPG maker gaming making only and limit use for promotion of your RPG game only.
 

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