Jan 19, 2009

Copyright issues with pictures and mods of games: explanation and advice for game designers and fans

This is a repost of a forum post I created for BoardGameGeeks.

Many of us take pictures of games we love, and post them here and on other sites. Others make game aids and other mods, and then share them (or brag about them) on the web. Most, if not all, of game designers not only approve of that, but welcome this, as such viral marketing by fans is a major help to them. But... in fact, people who post such pictures almost always break the law. While it is unlikely the game designers would ever sue a fan, one can wonder if all heirs who inherits the rights or the lawyers of a big company that acquires them will be always so considerate... but there is a simple solution. Below, I'll describe the legal basis of why taking the pictures (or making mods or game aids) is illegal, and how it can be easily and legally rectified, with but a small declaration on the part of the game designer(s) that don't want their fans to be breaking the law and have legal troubles in the future.

Still, for those who will say: "but there are millions of pictures, mods and gaming aids, on BGG and elsewhere, and nobody is being sued", here is some food for thought:
* copyright-conscious sites (Wikipedia, YouTube, and increasingly others) constantly delete a lot of such pictures (videos, etc.), and it pains me to see so much good, fan made effort wasted
* I don't know about you but I don't want to be an exception and find myself sued "for publicity" when a big, evil corporation acquires the laws for a game I took pictures of and their lawyers decide that they can make a short term profit out of my savings
* and I don't want the above to happen to sites like BGG, run by well meaning fans but with little knowledge of the legal issues behind copyright and how it can suddenly rise its ugly head and bite them when they are least suspecting it
* finally, I don't like the fact that most of us, myself included, are copyright criminals, and I'd like to do something to change it. Educating people about the evils of modern copyright and easy solutions makes me feel better :)

Bottom line: if you are a game producer, and you want your products well and legally illustrated and promoted by fans, use a free license. Among other things, they are free to use, too, and in practice, it requires nothing more then a once-in-a-lifetime dedication of a few minutes of your time to put up a small declaration on your website (and on your future products, an additional sentence in a manual or on the box). If you are a gaming fan who takes pictures or creates gaming mods, ask the producer to use a free license, and release all your works under a free license yourself.

Why should we care?
Well, for several reasons. If you like BGG:
* knowing possible legal problems facing BGG and what can be EASILY done to solve them could be useful at some point
If you are a gaming fan who likes to take pictures, and posts them online (or makes gaming aids, gaming mods and such - yes, this applies to you people as well!):
* knowing what the law says, when you break it and what you can do not to break it is usually quite valuable
If you are a game designer:
* knowing what the law says and what can you do (quickly, easily and for free) to have your fans not break it sounds like a good idea
* this will also make it easier for the fans to do their viral marketing stuff :)
* further, Wikipedia is the most popular website on the web; if you google for a popular game, its entry will usually come up next to BGG entry. Further, with a little effort (often on the part of your fans) you can have your game mentioned on Wikipedia's front page, a page with something like tens of millions hits daily. So if you have your game described and well illustrated on Wikipedia, you'll read on :)

Why is posting pictures of games illegal?
Please note that laws differ in different countries, but what I write below holds true for most, and unfortunately, due to international nature of the web, anybody suing for copyright infringement is going to chose the best (most restrictive) law (and since both US and EU laws are among the most restrictive, and used to passing verdicts on such international cases, assume the worst).

While I am not a lawyer, years of hanging out around copyright conscious people on Wikipedia (a project which is very copyright conscious, up to having what some describe as "Nazi volunteer copyright police" :)) have taught me that what it boils down to is that a lot of items are copyright protected to an extent that while you can take a picture of that item, you are not allowed to distribute it. The technical, legal term for a photo (or a mod, or a gaiming aid) is "derivative work".

This applies primarily to photos of modern art. Modern art means for example computer screenshots of movie and computer games, but also pieces of board/card/miniature/other games. You CAN take a photo of such objects - the copyright to it belongs to you and the artist(s) - but you cannot legally publish it without the artists explicit permission.

To give you an example: Copyright of game X is owned by the company X. A fan M makes a mod of the game X, posts pictures online, which are in turn reproduced by fan N and hosted on site A. M, N and A violate copyright of X. N and A violate the copyright of M. In other words, they are criminals... (yes, probably millions of Internet users are criminals, not realizing it... did I mention that the current copyright laws suck?). If the company X is a reasonable one, it will understand that M, N and A are helping it and do nothing. If not, they may be a target of "cease and desist" letters or worse. The company X can however very easily make it legal for fans to mod/take photos/etc. of their games. See the next section for what, exactly.

Please note that the current copyright laws were created due to lobbying of big media corporations (Disney and such) and indeed they don't benefit anybody but them. They certainly don't benefit an average gamer or game designer; instead they hurt us. In the next section I will describe how we can easily deal with them.

Some links of interest for those who want to read a little bit more about specific laws, their interpretation and reasons behind them:
Wikipedia experts on images on the concept of "derivative work"
Wikipedia experts on images on the concept of "freedom of panorama"
Wikipedia experts on images on the concept of "fan art"
An excellent series of essays mostly about why writers (and other artists) should use free licenses, by a renown sci-fi writer, Eric Flint
A free online book that several years ago made people realize how evil and twisted the copyright law can be

Let me quote from that book here:
"There has never been a time in history when more of our 'culture' was as 'owned' as it is now. And yet there has never been a time when the concentration of power to control the uses of culture has been as unquestioningly accepted as it is now."

Easy solution
So US copyright law (and international law) is close to evil. And it harms not only the end users, like us, gamers, but often, the companies themselves: they like the viral marketing of their products... but very few know how to do it legally. Yet it is in fact very easy. It requires nothing more then a small declaration on your website (and in your future products, an additional sentence in a manual or on the box).

Legally means two thing, basically:
* a company should put on their website and on their products a note that it allows some taking and distribution of their photos under free licenses and if they want fans to make mods (such as the giant catan 3d versions and so on), other modifications. Note that free licenses such as Creative Commons are detailed enough that they can still protect the commercial rights of the producer, while allowing fans to legally make (noncommercial) photos, mods and such. In other words, a producer, by taking a few minutes to add a Creative Commons logo and note to their websites and future products, loses nothing, but makes it legal for fans of their products to help with viral marketing :) In other words, free licenses like CC give the artist/copyright holder a legal way to say "you can republish my works under certain conditions and you don't have to try to contact me to get my permission which is required under traditional copyright" or in other words "go and legally spread your love for my products").
* anybody taking a photo and uploading it online should clarify that the photo is under a free license, for the same reasons as above (or to spell it out: if you don't use a free license on your photo, anybody reproducing it is violating your copyright and you can sue them...).

If a free license is not used, a fan who does not want to break law has to contact the copyright holder (game designer), and ask him for a permission to do what they want (make a mod, or post a photo of the game). The copyright holder has to reply. Legal issues ensue when the fan and copyright holder are under various jurisdictions... (for the record, Creative Commons is now mostly international and universal).

If it seems like a hassle, blame to lawmakers, and understand that lack of the above will preclude, for example, illustrating the game article on various law-conscious sites. If you are still annoyed, there are organizations involved in trying to change the existing laws, see links leading from the above Wikipedia article on "free content" for more details (the free culture movement is my personal favorite).

To end, here's a short minute guide on how to freely license your work:
* if you are a game designer, or similar: go to Creative Commons website, spend half a minute with their license generator, take the generated html code, put it on your website, add some custom note if you want to your fans, include in your future releases, and rest assured that your fans can now legally spread photos and such of your games
* if you are a photo taker, make sure that when you upload your photo, you add a note on the CC licenses. Many sites (flickr, Wikimedia Commons) ask you to chose a license. Don't be lazy and chose a free license, not the evil default of "all rights reserved". If the site you upload your photos to doesn't have a free license option, bug them until they add it.

PS. But what about fair use?
Fair use in any way is a legal nightmare, and there is a consensus among the interested legal experts that nine times out of ten, a case revolving around fair use will end up with the fair use being invalidated and the person claiming they had the right to use it, paying the damages... for those reasons, fair use is being phased out from Wikipedia, and is currently accepted only on English language Wikipedia (and in a few years, there won't be any fair use images on Wikipedia). This essays of Eric Flint (linked above) discusses the problems of fair use in detail.

PPS. This post was inspired by some replies to my thread in the Settlers of Catan discussion which in turn was inspired by deletion of SoC images from Wikipedia

PPPS (May'09). Commons have liberalized its policies towards fanart: see the new Commons:Fanart policy. This policy a nutshell: Educationally-useful fan art can be accepted on Commons provided it has not been copied from any creative element of the original copyright work such as a movie, TV show, comic book or computer game.

1 comment:

Ruth said...

You do a great job explaining the ins and outs of copyright issues in this article. Thanks!

Another excellent resource on copyright in the entertainment industry is Clearance and Copyright: Everything You Need to know for Film and Television by Michael C. Donaldson. He does a great job of explaining the issues in a way that's easy to read and to understand.

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