Adventure Game Studio

I'm looking at doing a parody on a rather well known console game (those of you on IRC will know what I'm talking about since I rarely shut up about it), but during a conversation with Eldkatt, the topic of copyright laws came up. After a bit of searching (lies! i made roger do the work) I found a site outlining the US Copyright laws. Under the section of fair use, I found this (focus on the bold part)...

QuoteThe 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: “quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author's observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.”

With focus on this part...

Quote...use in a parody of some of the content of the work parodied...

So unless I'm mistaken (which i probably am), I'm okay to make a parody about something provided that I don't parody the entire thing?

Also, the use of the original music came up and since music has it's own set of laws (i couldn't be arsed checking, but they're probably important), I'm thinking that using the of original music, albeit in a parody and conforming to parody laws (ie : not using the entire track) should be fine. Chances are it's not and I'll get screwed by the legal eagles.

So, yeah, I'm looking for clarification on this matter and also any little legal tidbits people know they'd like to share (relevent ones, mind you).


Note: No, the end product will not be sold. Yes, it will be free for all to obtain (the end product, not the content in it). Yes, all original copyright and credits will remain intact.

The document quoted can be found here.
http://www.copyright.gov/fls/fl102.html

Check trademark laws too, that's usually the real issue.

Quote from: AgentLoaf on Fri 17/09/2004 21:05:20
Also, the use of the original music came up and since music has it's own set of laws (i couldn't be arsed checking, but they're probably important), I'm thinking that using the of original music, albeit in a parody and conforming to parody laws (ie : not using the entire track) should be fine.

I really, really wouldn't count on that.  After all, you're not parodying the music itself, so it wouldn't fall under the Fair Use parody clause.  If the music is copyrighted (and it probably is), then I'm pretty sure you can't legally use it without permission.

There is, I believe, some particular amount that you can "sample" legally, but I forget how much it is... a matter of seconds, anyway.  Using more than that could potentially get you in trouble, even if you don't use the whole track.

Mind you, IMO the company that made the console game is extremely unlikely to try to sue you over something this minor, but I'm pretty sure that theoretically they could, so if you want to be 100% on the safe side you'd best avoid using the original music.

Well, they'd surely issue a cease and desist before going out and suing someone who probably can't cough up that much money for them anyway.

Yes, I just said "sue" for brevity's sake, and I realize that wasn't entirely accurate.  (I wondered if anyone would call me on that. ;) )  I agree that of course if they did decide to do something about it they'd almost certainly start out by sending a cease and desist letter, and only threaten an actual lawsuit if AgentLoaf failed to cease and desist.  In any case, though, I think, as I said, that it's unlikely they'd bother to do anything about it at all, even though technically they would have the legal right to.

Legally, it's fine to parody something under fair use in US Law. Wiki has a good example with : http://en.wikipedia.org/wiki/Fair_use#Fair_use_and_parody

Music is also counted as part of the parody fair use. The above link lists the "Oh, Pretty Woman" example, and here's a link to the case details: http://en.wikipedia.org/wiki/Campbell_v._Acuff-Rose_Music

Quote from: DGMacphee on Sat 18/09/2004 02:40:57Music is also counted as part of the parody fair use. The above link lists the "Oh, Pretty Woman" example, and here's a link to the case details: http://en.wikipedia.org/wiki/Campbell_v._Acuff-Rose_Music

But in that case, the music itself is being parodied.  That's an important distinction.  That's not at all the same thing as using as is the original music for a game--even if the game itself is being parodied, the music would be under a separate copyright, and if you're not parodying the music itself then the fact that you're parodying the game wouldn't automatically give you the right to use its music.  There's a difference between creating a parody of a song (which is what happened in the "Oh, Pretty Woman" case) and merely using a song in a parody.

So I'd have to recreate and parody the music of the original product to make it legal to use? Even then, wouldn't the recreation of the music (albeit altered) be an infringment of copyright and intellectual property?

A dude's gotta jump through hoops just to poke fun at things now days...

Alun_Clewe: That isn't the case here.

Since the music is used in part of the parodied item (the parodied game in question is copyright as a complete item, which includes music), the fair use still applies.

There have been lots of examples of parody to illustrate this. For example, look at the many parodies of Psycho and subsequent use of the shower scene music. The shower scene music was written specifically for Psycho and the copyright exists as part of the film. That's why no one has been sued for making a parody of Psycho shower scene.

You see, the purpose of parody is, in part, a critique of a certain work (or more so a mockery of a certain work). If the music contributes to a copyright work, the music is included in the copyright for that particular item. Thus, the music is also being parodied too.

Since fair use allows reproduction of reduced portions of a copyright work (such as the music), it's fine to use the music in a parody. The case would be different if the music was produced as a seperate entity to the game, like song (The best examples I can think of are the 80s songs in GTA: VC, which are all licenced. Even though GTA: VC is a parody, the songs exist with their independent copyright)

By your logic, if the music had a seperate copyright (which as I said it doesn't), then that would mean that the sprites, backgrounds, and sound effects have seperate copyright. But they don't. Why? Because all are elements of a complete copyrighted work.

And from what Agentloaf has described, it sounds like the music is an aspect of the game, rather than a licenced song.


EDIT: To give an example of what I'm saying, I had a look at the manual for The Dig. The music, as any good adventure gamer knows, was by Michael Land. However, there are exceptions: The excerpts from Wanger's Overtures and Preludes, which were recorded by EMI Records and the rights were licenced to LucasArts.

The copyright at the end of the manual says:
"The Dig game (c) 1995 LucasArts Entertainment Company. All Rights Reserved. Used Under Authorisation. (yadda yadda yadda)."

This means that, aside from the Wanger recordings, the game as a whole is copyright. Thus, if someone was to make a parody of The Dig, they could use Land's music, but not the Wagner recordings unless they got permission from EMI. This is because Land's music doesn't have its own exclusive copyright (and thus a part of the game's copyright) whereas the Wagner recordings have exist as an entity independent of The Dig (which means they aren't actually a part of the Dig's copyright and thus not a part of the parody).

I'm not completely sure on the Wagner excerpts, mainly because laws become murky when dealing with licenced music and parody. However, I know for a fact if you parody a game, you can use the game music. If you believe otherwise, name one person who has been sued for using the Mario Bros theme in one of countless Mario flash parodies.

Fair Use basically says that you should only use as much of the original work as is necessary for the parody to make sense.

So if you were to copy the whole game, but change one line of text, that wouldn't get the Fair Use defense because you'd have used far more of the original work than was necessary to make your point.

For example, I maintain this website (http://www.transport2000.co.uk), which is a parody of this website (http://www.transport2000.org.uk). The layout is copied, because it is the basis for the parody, but the actual content is original. If the layout was not copied, the parody wouldn't really make sense, therefore it's fair to use it.

Overall, so long as the majority of the content of your game is your own work, and you are releasing it for free (commercial sale tends to go against you in parody cases), you should be ok.

Of course, UK and US copyright laws are slightly different -- in the UK I believe you have to prove that your parody "educates or entertains" the reader, whereas I don't believe that applies in the US. Of course, if your parody did neither of those, you probably wouldn't bother making the thing in the first place ;)

You Brits and Americans are very lucky. Australia doesn't have any fair use/fair dealing laws in regards to parody.

There was a recent High Court case involving a comedy TV Show called "The Panel". They took broadcast segments from another network (Channel Nine) for jokes and so forth. The Panel's network (Channel Ten) won, claiming they were using it for criticism. However, there was debate as to whether it constituted parody or criticism (as well as debate over the actual definition of a "broadcast").

We are very behind when it comes to parody-protection laws. However, in most cases people just allow such parodies to take place without legal action. It's kind of considered un-Aussie to start suing when someone pokes a bit of fun. (Case in point, Pauline Hanson suing Pauline Pantsdown for defaming her with the song 'Backdoor Man').

BTW, CJ that's a damn funny website, especially the survey!

Thanks for all the info. I shall take my new found (well, obtained) knowledge and proceed with caution, or at least until they slap a C&D notice on me.

Gracias, amigos.

DGMacphee--I'm no lawyer, and I'm certainly not an expert on matters like this, but I have to say you definitely don't have me convinced.

QuoteSince the music is used in part of the parodied item (the parodied game in question is copyright as a complete item, which includes music), the fair use still applies.

That's not how copyright works.  The Psycho shower scene isn't a good example, because the music used there is very short.  As I said, there are rules saying that a few seconds (I forget the exact amount) of a copyrighted musical work is legally useable.  In general, music is copyrighted separately--the game or movie isn't just copyrighted as a "complete item".  The music requires a separate copyright form and everything.  Now, in the case of the particular game AgentLoaf is parodying, maybe they didn't bother to officially copyright the music as a separate item...but on the other hand, maybe they did.  And even if they didn't officially copyright it, it's something of a moot point because by law it would still be considered under copyright automatically.  And yes, the music copyright would exist separate from the copyrights on other game elements, whether this is explicitly expressed in the game documentation or not.

QuoteThis means that, aside from the Wanger recordings, the game as a whole is copyright.

No.  It just means that they didn't bother to list their separate copyrights for each item.  But again, even if the copyrights aren't explicitly listed, they still exist.

Okay, here's an example: Think of the Simpsons episode parodying Mary Poppins.  You know that one?  Notice that while they parodied the particular songs in Mary Poppins, they didn't use the exact same music.  They changed the tunes a little, so they'd be different enough they weren't infringing on copyright.  (Though actually there, since they were parodying the songs themselves, they probably could have gotten away with using the original tunes... but apparently they just wanted to be on the safe side.)

QuoteHowever, I know for a fact if you parody a game, you can use the game music. If you believe otherwise, name one person who has been sued for using the Mario Bros theme in one of countless Mario flash parodies.

You know this "for a fact"?  How?  Have you consulted with a copyright lawyer on the subject?  The fact that Nintendo hasn't sued anyone over using the Mario Bros. theme proves nothing.  I said in my original post that although the company could theoretically sue AgentLoaf over using their music, I thought it was very unlikely that they would actually do so.  If Nintendo hasn't sued anyone for using the Mario Bros. music, it doesn't mean they couldn't have done so; it just means they didn't see a reason for doing so.  Which was probably a wise decision on their part; trying to take legal action against such parodies would have accomplished nothing for them except to bring them a lot of negative publicity.  Yes, a game company is extremely unlikely to sue someone over using their music in a parody, because they really have nothing to gain and much to lose by doing so.  But that doesn't mean they legally can't.

But anyway, as I said, I'm not a lawyer, and I'm pretty sure you aren't either, so perhaps there's little point in our debating this further, since we don't actually have unambiguous legal precedents and specific judgments to draw upon.  Maybe someone who's actually dealt firsthand with copyright law will chime in here.

Anyway, though, the summary is that, whether the music is under copyright or not, it's probably relatively safe to use.  Even though (I believe) they can take legal action against you over it, it's very unlikely that they'll actually do so, and even if they do they'll send a cease and desist letter and give you time to change things before actually threatening a lawsuit.  So it's only if you want to be absolutely 100% sure there's no chance whatsoever of ever getting into any trouble that you need to worry about avoiding using the original music.

I'm not a lawyer, but I play one on TV.  ;D

No, I am actually a journalism student. Part of my studies deals with media law, so I do have a lot of training in the area of copyright law (After all, I have to know how to protect my copyright when I become a journalist).

I do think you're wrong about the seperate copyrights for music in films, because I know that the Australian Copyright Act defines copyright as exclusive rights to literary, dramatic, and artistic works, including compilations of such. A movie is one example of such a compilation, as are sound recordings, published works and broadcasts. From what I've heard, US and UK copyright definitions also follow suit.

Also...

QuoteThe music requires a separate copyright form and everything

No, it doesn't, because copyright protection doesn't require "forms". This is a common myth about copyright. Copyright happens automatically when first published in a country. In fact, you don't even need to include the (c) symbol for copyright to take effect (However, it's advisable because it notifies people of the copyright).  You're probably thinking of registering trademarks or patenting ideas.

As proof, in the UK...
http://www.patent.gov.uk/copy/definition.htm
Before you go any further you need to know that there is no official register for copyright. It is an unregistered right (unlike patents, registered designs or trade marks). So, there is no official action to take, (no application to make, forms to fill in or fees to pay). Copyright comes into effect immediately, as soon as something that can be protected is created and "fixed" in some way, eg on paper, on film, via sound recording, as an electronic record on the internet, etc.

This further proves my point. How can seperate copyright exist for a film's music and the film's footage when they form a "fixed"  item? And if something is "fixed" as in say a film, then that means the music is a part of that film and not seperate. If the film company decides to release a soundtrack, that soundtrack also becomes a "fixed" item (though, I prefer the term "published item").

You see, I said copyright comes into effect when something is published. Films and soundtracks are examples of such published items. The copyright doesn't end when the composer finishes recording the music. If it becomes part of a film, then its copyright is included as part of published work. Thus, the entire film including music is regarded as a copyrighted item.

As for Mario Bros and Psycho, they were just examples of such parody. But let me give you a better example of copyright fair use. Let's just say I write an article for a newspaper. I also take a photo and use it as part of the article. The photo and the article are copyright to me (and the news organisation I work for).

But let's just say the article was really shoddy and someone writes a critique on my work. Plus, they also use my photo.

Well, they are well within their rights to use that photo. There is no seperate copyright. That photo forms part of my complete published work. Thus if the critique or parody requires my photo, then legally they can use it.

Now you probably think this scenario is merely hypothetical, right? Well, it's actually more real than you think. There is a show on TV  here in Australia called Media Watch which does exactly as I described. If a journalist screws up with a newspaper article or a TV broadcast, MW acts as a critique of their work. And they use whatever materials (extracts, photos, sound bites, video clips) are published in the news article/TV show/radio show they're critiquing.

Their website is here: http://www.abc.net.au/mediawatch/

You see, the whole reason there's no precedent is because no one can sue for seperate copyrights on one published item. No lawyer has ever taken such a case and no lawyer in his right mind will, because they'll lose.

This also means (after studying up a bit more) you're entitled to use the Wagner music in a parody of The Dig, since The Dig as a whole is a complete published item. I admit I was wrong there. But my point still stands.

Now, I'm not saying all this to debate with you, Alun_Clewe. But I am saying this so AgentLoaf knows what his rights are. But, if you, or anyone else here, find any examples of someone successfully suing for seperate copyrights on a single published item, then I encourage you to post them here. If not for AgentLoaf's benefit, then for mine. Perhaps there's something I've missed. I'm always open to people pointing me in the direction of fact.

Quote from: DGMacphee on Sun 19/09/2004 11:11:37No, it doesn't, because copyright protection doesn't require "forms". This is a common myth about copyright.

Officially registering a copyright with the U.S. Copyright Office certainly does require a form.  Maybe they don't have forms for it in Australia or the U.K., but they do in the U.S.  I have sent in such forms myself to officially copyright some of my own works.  I still have copies of Form PA, the form for registering a copyright for music, and Form TX, the form for registering written work, in my files (left over from the old days, when you had to actually call the Copyright Office and request them to send you copies of the forms; now there's not much point in keeping copies in case they're needed, since you can just download them off the web).  You are correct that copyright happens automatically even if the form is not sent in--as in fact I had said in my own post ("And even if they didn't officially copyright it, it's something of a moot point because by law it would still be considered under copyright automatically")--but yes, there absolutely is a form to register the copyright.  It's not necessary to send in the form to copyright the item; it is automatically copyrighted on publication (in fact, technically it's copyrighted as soon as you've created it, even if it hasn't been published yet), whether you send in the form or not; but having officially registered the copyright with the form means you have tangible proof of having the copyright.  This is especially useful if you haven't published the work yet--technically, it was under copyright as soon as you wrote it, but without having sent in that form it may not be easy to prove you did it.  If someone else steals your work and claims it as their own, you're going to have a much easier time proving your case if you've officially copyrighted it with the Copyright Office.

Here is the page (http://www.copyright.gov/forms/) from which you can download the copyright forms from the U.S. Copyright Office website.  You can see for yourself.  They are certainly not a myth.  And yes, I do know the difference between copyrights, patents, and trademarks.

[Edited to add this paragraph, even though it's rather moot now and has nothing really to do with AgentLoaf's case:]At any rate, to some degree it's almost a moot point whether or not a company would be within its legal rights suing over a matter like this.  A sufficiently litigious company would do it anyway.  This happens all the time in the U.S.; an unethical company that wants to stop a private individual from doing something that's technically within his legal rights will threaten a lawsuit against him knowing that if the case ever came to court it would lose, but also knowing that the individual doesn't have the money to take it to court and will agree to cease and desist just to avoid being bankrupted by the potentially enormous court costs.  (I believe some other countries have a policy that the losing side in such a case pays the legal expenses of the winner.  The U.S. doesn't have that policy.)  The fact that a lawyer would lose a case doesn't mean he won't take it if he knows the case will never come before a judge in the first place.  Although I don't think that applies here anyway, since I'm still not convinced that the company wouldn't be within its rights to threaten legal action.

Anyway, sorry, but I still disagree with you about this matter.  But it doesn't look like either of us is ever going to convince the other, so what say you we just drop this subject?  We're both agreed that AgentLoaf is very unlikely to get into trouble for using the original music; AgentLoaf has already made his decision; and at this point it seems there's little to be gained by dragging this out further.  So let's just agree to disagree.  Agreed?  ;)

There are separate copyrights for music and lyrics from the same song.

On the note of photos and articles in a paper, usually if you have a contract with a particular media group, within that contract you are probably signing the rights over to them, but I'd say that is not always the case. But the point is you can also own someones copyright if they sign it over to you.


But back on topic, I really doubt any AGS games reach enough audience to make any owner of any protected material care too much, they might frown, or maybe even be flattered, but I don't think you'll get sued.

I haven't been sued yet, so that proves it.

QuoteSo let's just agree to disagree.  Agreed?

I don't agree to that.  ;D j/k

As side note, I did know about the Copyright forms in the US, but I didn't say they were a myth. I said it was a myth that you're required to fill out such forms for copyright to take effect. The law will still recognise your copyright, whether you register or not. Registering just makes it easier to prove.

But we've both said this now and AgentLoaf can go on his merry way in making his parody.


Timosity: I think there's a legal case that shows journalists can still own copyright over their work, even if they work for a media organisation. I think the case was De Garis vs Neville Jeffress Pidler in 1990. At least, that's what one of my books says.

EDIT: Here's the case -- http://www.austlii.edu.au/au/cases/cth/federal_ct/unrep4315.html

Quote from: DGMacphee on Sun 19/09/2004 11:49:19
Timosity: I think there's a legal case that shows journalists can still own copyright over their work, even if they work for a media organisation. I think the case was De Garis vs Neville Jefferess Pidler in 1990. At least, that's what one of my books says.

You're probably right, but I guess it's always good practice to go over your contracts carefully