What counts as a commercial game?

[NeirdaZT]

I'm confused about some aspects of what is commercial in a game and what isn't.
For example if I mention McDonald's in my game (in a sense that the game character goes to eat there), does that count as commercial or promoting a business? And can I get in trouble because of the copyright?
Also what's the case if I mention a band, like Backstreet Boys in my game? Can I use trademark names or not at all?
I'd be thankful if someone clarified me that.

 

[TRIDIUM]

Commercial games refer to the price you are asking for. So, basically, if you have to pay or if it's free.

I'm pretty sure you can't use name brands, legally, but....like, change it to McDollards or something.

 

[Ms Littlefish]

I have moved this thread from General Discussion to Commercial Games Discussion.

Commercial would be anything that earns you money, and depending on the terms of the components of that game, could include donation ware and freemium games. So the terms and license need to be carefully reviewed.

As far as mentioning McDonald’s, Backstreet Boys, or whatever…things like trademarks really just kind of depends on the holder. They could be problematic in free games or commercial games depending on what it’s infringing and who is holding that trademark.

It’s generally considered safest to parody well known brands and trademarks.

 

[AquaEcho]

If you're charging or collecting money in any way, including optional donations.

 

[JohnDoeNews]

Even free games can be considered commercial, like if it is made to promote somerhing, like your webshop or YouTube channel.

 

[Andar]

@NeirdaZT
As you might have guessed from the answers above, you're mixing up two different things here:
commercial use on one side, and copyright and trademark on the other.

It does NOT MATTER for copyright and trademarki if your game is commercial or not.
Even if you give away your game for free, using trademarks and the like is automatically an infringment unless covered by "fair use" - and fair use has very strong limits, which mean only parodies can use such terms.
The only difference between commercial and non-commercial for copyright purposes is the question of how much of a fine and damages you're charged when you loose before the judge.

 

[Tai_MT]

Since everyone already answered the question on "what a commercial game is".

I just want to add "Commercial games don't matter or not in terms of copyright infringement". So, you gotta be careful with what you do and how you do it.

But, let's be honest... it's easier to be "original" than it is to "steal". Unless you just have no imagination what-so-ever. Or are lazy.

Anyway, I'd like to close this post with a joke.

A "Commercial Game" is one in which you run 5 hours of ads with a broken "Skip" button, and there's no gameplay at all.

 

[JohnDoeNews]

@Andar Fair use is not really a thing in game development. That is more for news items and informative articles. Fair use doesn't mean you can use copyrighed assets or trademarks in your games.

Here is an example of fair use:
On Hanks highschool he learns about Disney in history class. There is a 3 pages article in his history books and with that article is a photo of Walt Disney and an image of Mickey Mouse.

Here is another example:
Warner Bros was opening a new Theme Park in Germany. The news did a video about the new park and in that video they show Bugs Bunny, Daffy Duck and Elmer Fud, walking trough the park.

Those are all copyrighted characters who do appear in the articles. This is fair use.

If you make a game, and Mickey Mouse shows up for 12 seconds for a single joke, then that is not fair use. In this scenario Mickey is a character in your game. That has nothing to do with fair use.

Note that fair use is not something that happens all the time. In far-out most cases, the users call it fair use without knowing what it means, just to justify them using copyrighted content.

That is much like a thief stealing at the marked, and justifying it by calling it finders. keepers.

 

[Andar]

If you make a game, and Mickey Mouse shows up for 12 seconds for a single joke, then that is not fair use. In this scenario Mickey is a character in your game. That has nothing to do with fair use.

12 seconds, no.
But if you make the entire game a parody on disney, then having disney characters and versions of them go there constantly, THEN it IS covered by fair use.
Because parody is an accepted reason on fair use, just read the wiki articles on it.

Or why do you think there are adult parodies of superhero movies sold publically without Marvel or DC doing anything? They cannot because parody is accepted by any judge as part of the laws.

The problem games have is that they need to be obvious about the parody part, to the point that it has to be obviously a parody against the specific target and cannot be confused with the target itself.
Which is where for example most fangames fail, they want to celebrate their original instead of ridiculing it.

But if you manage to make an obvious parody of disney, not even disney lawyers would be able to win in court. They might try to bully you about that, but they will never go to court against an obvious parody.

 

[ATT_Turan]

The problem games have is that they need to be obvious about the parody part, to the point that is has to be obviously a parody against the specific target and cannot be confused with the target itself.
Which is where for example most fangames fail, they want to celebrate their original instead of ridiculing it.

Exactly. Or they think that just by making the overall tone of the game comedic makes it a parody, when that's not what the word means.

But there's absolutely no reason you can't make a parody video game. Heck, there are plenty of famous, well-received games that are parodies, they're just not done that way in order to get around copyright of other people's material. They're just cleverly-written games.

 

[AquaEcho]

To think, @SpyroFan67 could legally publish and sell his game if it were about Blyro the Dragon instead.

 

[Andar]

if it were about Blyro the Dragon instead.

depends on how much he changes the focus, it's not as easy as changing a few letters.
changing the letters would make the trademark problem go away, but then there would still be the copyright.

copyright is a lot more vague (unless directly ripped resources) where the designs are concerned, which is why lawyers prefer to use trademark when possible. But if the game about Blyro is too similar to the games about Spyro then they can claim design or story copyright.

But that goes too far off-topic. Start a new topic about limits of copyright and fair use if interested.

 

[r66r]

Don't forget one detail about copyright: it also depends on where the game is published or distributed from. For example, fair use is typical of the US, but in Europe the laws differ... and what may be authorized in one country may not be in another.

As for the commercial vs. non-commercial topic, everything has already been said, I think.

 

[ATT_Turan]

Don't forget one detail about copyright: it also depends on where the game is published or distributed from.

That's true - I think the default presumption is that people are asking about standard distribution sites.

Steam and itch both follow U.S.A. copyright laws.

Obviously if one is curious about laws specific to your other country, and you don't say so, people would have no way of providing helpful answers

 

[DilidKuDufan]

Commercial means Mass Marketable.
This means Your profit vs Publisher's.
Commercial also means advertisement.
So, what makes a game commercial is
Simply is the publishing deal to buy it.
Then distribution profit for everyone!!!

[example: I make a game called "Monster Ants."
I can sell it on my own and make a couple sales
or I can make a business deal into a investor who
Furnishes it to a gaming publishing company then
get thousands of CDs made, Steam Posts, e.t.c.]

Spoiler: OR THE REAL SECRET TO SUCCESS

Perhaps, maybe some devs who make games may
perhaps, just maybe, just maybe, summon dark forces
to make their game popular with lots of money??
I mean (As of writing this) 666k threads? Geez!
You can't make that one up. If the evil overlords
From the RPG world decide to let you live. Bah!!!

 

[123edc]

Steam and itch both follow U.S.A. copyright laws.

itch has californian law in their licence agreement,
steam has washington law in their licence agreement for anyone outside of EU/UK (where the law of your country of residence counts)

though, enforcing copyright claims across country borders [especially, when you'r own country has different laws and you accec the websites from you'r country] is another beast entirely ...

Commercial means

in it's core essence, it means trade,
anything, that "gives you something back" from it, that generates value
be that money from selling it, money from advertising it or just a pack of salt ...

 

[JohnDoeNews]

Well... This is getting funny... Not haha funny, but wtf funny.

Commercial means Mass Marketable.
This means Your profit vs Publisher's.
Commercial also means advertisement.
So, what makes a game commercial is
Simply is the publishing deal to buy it.
Then distribution profit for everyone!!!

This just doesn't make any sense, at all. Commercial means someone makes money off of it one way or another. Even on a small scale, so not only when mass marketable. What you mean by your profit vs your publishers, is a riddle to me. And a publishing deal to buy it? I don't even know what that means.

I understand that English isn't your main language and this is a translation error, but I really am very confused about those answers.

itch has californian law in their licence agreement,
steam has washington law in their licence agreement for anyone outside of EU/UK (where the law of your country of residence counts)

though, enforcing copyright claims across country borders [especially, when you'r own country has different laws and you accec the websites from you'r country] is another beast entirely ...


in it's core essence, it means trade,
anything, that "gives you something back" from it, that generates value
be that money from selling it, money from advertising it or just a pack of salt ...

In general assets are bound to copyright laws that are the default in the country/state the maker of those assets is from. An American artists art is protected by American law and a European artist by European law.

When an artist uses a platform like Itch or Steam, they actually agree to signing part of their copyrights over to that platform. In practice this means you give them permission to showcase and sell your assets for you. This happens by USA law, because those companies work under USA law.

But the assets copyrights are still protected by the laws of the artists country. If someone steals my copyrighted assets for example, which I would sell on Steam, then I am protected by European law. And Steam is protected by USA law. Both me and Steam would be able to take action against the thieves, each according to the laws in our own countries.

But in the end, copyright laws in EU or USA are pretty much the same. Of course some details are different, like the time a creator must have been dead before their assets become public domain, but the main lines are the same in both regions.

 

[DilidKuDufan]

This just doesn't make any sense, at all. Commercial means someone makes money off of it one way or another.

I'm trying to explain to OP
What makes a commercial game
Is that is A big name Title.

think like this:
If something is commercial
You seen it on a commercial
Because it's made to sell!

sorry if what I wrote confused anyone,
I'm just trying to explain that part.

Because this is where big budget devs actually have to do to actually hand-sell and promote their own entertainment productions is how well they can marchandize.
Let's face it - RTP games alone can be a dud of a hard sale. (The phrase "this won't sell. Cos this won't do." Comes to the mind. Do it right to win.)

However, also to bear in mind that fact.
Yes, it can be considered a commercial success if one sells on their own. Depends on how they revenue after compared to the budget put in out.
But, if it wasn't made for free, then profit has to exceed what you put in to the table (paying for employees, resource, outsource, afterwork drinks.) To be considered not a bust.

((All works of entertainment either comes with a boost engross or a financial loss when it comes to final product output with serious commercial license product.))

Most people that make a game only focus on the dev-work, playability, creaitivity, enjoyability. That's fine.
But pushing for a released product takes a physical barcode with a ISBN number, Expert Reviewed Rating, Translation, Coordination Team including Marketing and P.R. and QA Support, Multi-Packaging, all the extras including copyrights, patenting, trade marks, royalties, product support.

However, the freedom of digital marketing is always the ability to cut the need for physical pressed copies and make the money directly yourself.

However to make a physical copy for valuable collectors item still takes a little bit of capital but worth it to be a commercial success.

 

[TRIDIUM]

Yeah, dude, that's just straight up wrong. IDK what to say.
Commercial games are one's that cost money, whether mandatory or not.

 

[123edc]

you are mixing up different term there,

if i build a furniture shop,
buy the beds, kitchen's, cabinets to sell and hire my employes ...

then the fact, that i am in the red ... or that i go bankrupt doesn't change the fact,
that i'm owning a buisness nor does it change the fact, that i have to pay taxes for it,

becouse my intention always was to generate money out of it,
i didn't make a cherity organisation, that takes donations and gives them away for free to the poor ... i made a store, that sells stuff ... that generates sales volumes ... that has the capability of generating profits down the line ...

weather or not there are any actual profits generated doesn't matter there ...
yeah, it might be a "bust" - but the intention behind it, was to create cash for you ...