Video Game Lawyers Tackle Fair Use - Extra Credits 

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When I did a Graphic Design class last year, our teacher had us watch some videos about copyright, trademarks, and fair use. The videos were explicit in saying that fair use is judged on a case-by-case basis, instead of on general rulings.

Based on what was presented here, I get and support the decision. The book should have gone to the original source of the photo and licensed it from her. She gave a one-use license to Warhol who used it. His estate had no right to sub-license the changed photo to use in the book. If the book felt Warhol's work was that important, it would need permission from both Warhol and the photographer to use it. That seems fair to me.

I've started saying that Fair Use is basically a _pardon_ from copyright. As in, yes you're guilty of some violation (in this case copyright), but the court declared that your particular context cannot be punished for it.

I feel there is nuance. In Let's Play videos for a specific example, every playthrough of a Mario game is all on the skill of the player. Take a Telltale game, like Walking Dead, though, and while individual decisions change bits, overall, a viewer gets pretty much the same experience as the player, and sees the whole story play out.

I think comparing the photo use to mods etc is tenuous. The photo lawsuit goes photo > painting > magazine, mods etc go game > mod. The reason there was a lawsuit is that the magazine took the transformed work out of context and paid the secondary source, not the primary one. Gaming doesn't really work that way. It uses the material directly, instead of using a liscensing of the material. It'd be more analogous to like, someone printing CD copies of a game plus a transformative mod, and only getting permission from/sending royalties to the mod people. I can't sell copies of modded Skyrim just because there's a mod attached, I can only distribute the mod by itself, you should still have to go buy Skyrim from Bethesda.

Ok, never a fan of ads, but this transition into ad was top-notch. Also IRL ZOEYYYYY! 😍

One huge problem is the chilling effect of a lawsuit threat to normal people. If you look at something like an AMV, the entire thing is typically an editted concatenation of copyrighted works. The creator has no idea how copyright works, so they might just throw up a disclaimer and pray. In those cases copyright can only be used to prohibit the creation of derivative works and stifle the creativity of those random internet people. In such an instance it does exactly the opposite of its intended purpose. By way of example, the argument that a work should not exist because it copies something else blatently, is an argument that copyright law should not fulfill the purpose of creating an environment that engenders producing new cultural works. Such an argument is in opposition to the purpose stated in the constitution.

The whole question of who is performing/creating gets very interesting when applied to video games, interactive media and other software. If you create a song in FL Studio using properly licensed music loops/samples, you own the copyright to it. What about a song made in an app that uses properly licensed loops from a specific artist, like Remiix Plastikman Replikants? Do you own the copyright to specific songs you created using the app? What if a user creates music in a video game? Do they own the copyright to that music or does the video game publisher? What about a unique visual performance created within a game? Can a novel speedrun performance be copyrighted? In a video game, who is the performer? Who is the author? It is some combination of the player and the developers/publishers. Who owns which rights is going to get even more complicated very soon.

I feel like other kinds of IP licensing plus open source are deserving of discussion, given their importance in games in particular and computers in general. Traditional copyright law definitely leans on the side of restricting creativity too heavily and is often bent anyway because enforcement to the letter creates too many problems.

My thing about the Warhol print is that the original image had to be licensed in the first place. It being used without license would have infringed on Goldsmith's rights, and that licensing did not mean Warhol or his association owned the image now that it was used in his own piece of media. So in licensing their image over to the magazine, they are also licensing the element of it that still belongs to Goldsmith.

A lot of mods have always been a grey area or even clearly a copyright volition. Not all, of course. Which is very important to note! Just because something can be misused, does not mean every use is a misuse. This goes for Emulators, file sharing and file sharing protocols, VCRs, Tape recorders, AI technology and of course, the most horrid technology of all when it comes to copyright violation. The Printing Press! It is important that we do this case by case bases. And general bans lead to stifling art and new ideas, not promoting it.

One of the misconceptions I see with Fair Use is declaring it offers protection from prosecution. It doesn't as it's a legal defence not a protection. It's only useful when used in court, not at stopping getting prosecuted in the first place. So dumping a wall of text about fair use doesn't stop copyright claims, it just gives the prosecutor a heads up on your game plan in court.

Reminds me a bit of the AM2R incident. An independent developer tried to make an unlicensed, unauthorized Metroid 2 remake that happened to coincide with Nintendo's own development of a Metroid 2 remake. Naturally, they were not going to let that one slide.

Fair use is interesting when you learn about what has and has not passed the bar for it. Don't take some random dude on the internet's opinion about it, but I did hear about how Google got sued or similar for having preview passages on their ebook site, the publishers saying that they're sharing their stuff without permission. Which as a layperson sounds like it makes sense, you're copy pasting the text they own to a place they aren't making money from. However, the court ruled in Google's favour, saying that it did count as transformative. The video I learned this from didn't go into detail as to exactly why it was considered such, but based on other examples it provided that I can't remember, I think it was because seeing a few pages digitally is different than holding a physical book in your hands. One isn't stepping on the market for the other because they're different enough markets. Still, it was surprising to learn how little it apparently takes to be considered "transformative", though of course that can differ depending on who's judging that day.

To add more confusion to the subtleties on this topic, there was a recent court ruling that said "fair use isn't a defense. If something is fair use, it's not copyright infringement", which really just means it can be very volatile to sue over copyright infringement.

One of the things Internet people get wrong ALL the time about "fair use" is when they use b-roll of them playing a certain game as background matter for them discussing some completely different topic. Showing 5 minutes of Mario footage while discussing anything other than that Mario game is NOT fair use. Likewise, playing the _music_ from a game franchise as background music while not specifically _commenting_ on that music is also no fair use. Now, ideally a game company would still be _cool_ with that, it's probably in their own best interests to not be a jerk about it, but they do have the _right_ to be a jerk about it if they choose, and that's not really them being "abusive." A whole lot of the Internet is operated not on actual legitimate fair use, but just on the good will of these companies being unable or uninterested in hunting down offenders.

I think the biggest reason Nintendo is (rightfully) used as a copyright troll scapegoat is, they (incorrectly) believe that ultra-restrictive Japanese copyright law applies worldwide, even _takes precedence over_ copyright law in _other_ countries. It... actually doesn't. In fact, I'm reasonably sure that _American_ copyright law is used as the international baseline. So if precedent by American law says "yeah, X is totally Fair Use, no court case needed since a similar case was already ruled on", Nintendo _should not have the ability_ to copyright-takedown it anyway, especially when the Fair Use creator and work is itself legally in American jurisdiction (as is, statistically, usually the case).

Regarding AI, I believe that, currently, it is perfectly legal to use copyrighted works to train large language models and other forms of neural networks (such as image generating ones). What may be infringement is when the AI model produces an infringing work, but the way our system is set up each of those is adjudicated individually unless someone gets approval for a class lawsuit, and even then it would only be an issue for that one company. Furthermore, it's unclear WHO infringed - the person who wrote the prompt, the people who programmed the network, the people who gathered the training data, or the executives who approved that are all possible agents here. Given that, it's my opinion that the only reasonable solution to this problem is legislative. Congress needs to codify how, when, and to what extent one can used copyrighted works to train generative AI. Too bad the House majority is busy tearing itself apart in internecine strife right now to do anything.

i'm sorry but i'm VERY confused about this case? that book was looking to lightly transform a piece of art and then monitize it by using it as the COVER for their book. I feel the painpoint here should be "for profit" not the "transform" part.

I know you guys aren't lawyers, but I wonder what affect this would have on Fan Fiction.

I just want people to stop copy pasting the fair use speil when they upload something wholesale or just completely unaltered

So you got me thinking, people should have copyright according to their contribution. For example, Let's consider Worhol's adaptation of Goldsmith's photo. 1. He removed several photographic elements, retaining the outline of prince (Goldsmith contribution) 2. He added in his own colors (Worhol contribution) 3. He composed several reproductions in a manner he found pleasing. (Worhol contribution) Thus, Goldsmith retained a certain amount of contribution to the resulting work by Worhol. However, Worhol's contribution lies in his adaptations and arrangement. Artificial intelligence is similar 1. an editing program is trained on an artist's contribution, removing elements in the process 2. These contributions are adapted through an editing process ( possible contribution by whoever determined how the model works) 3. The result is selected or composed into a larger work (contribution to the user) Thus the artist's stake in the result is proportional to the retained stake of their copyrighted work in the adapted work, relative to the overall contributions to the adapted work by all parties. This model would also work for things like Mods to games (the mod is a contribution by the author of the mod, to a contribution by the author of the game.), AMVs (the composition is a contribution to the author of the amv, the music and clips to make it, the contributions of their respective authors.), and other works composed of multiple works with disparate copyright owners. The only problem being that people with copyright may wish to charge any amount they deem desirable, and to prohibit reproduction when their contribution is used contrary to their wishes. However, I would think compensation and control over the IP should be separate issues from determining attribution.

You guys have particular skill at talking about complicated things to a younger audience. I hope you can keep banking on those strengths while also tackling gamer toxicity and the complexities of running a community team at a game developer. If anyone has the skill to talk about it and to have both the devs and the 'gamers' feel understood, it'd be you.

I've been wanting to make a game featuring characters from a show I like. I was inspired to make it after someone on the show's subreddit suggested someone make a horror game based around the show. It would feature the characters, and loosely some of the settings, but other than that nothing else from the show would be used, it would mostly be inside jokes held by the fans about the series. The game would not be monetized, but I'm pretty sure there would still be legal issues if it got popular.

You used the Comedy Central "C" logo, you'll be hearing from Comedy Central.

This is a fantastic primer on how quick copyright gets muddy, thanks for this!

This is a very interesting topic you bring up. But I'd also be interested in hearing about the nuances and legaity of using and copying video game ROMs and Emulators. Those one of the biggest gray-areas in gaming that's hardly ever talked about.

It was quite appropriate for Mario and Sonic to be featured here because the other side to this is the copyright owners involved. Some are much more aggressive on protection, others less.

This case is a great example of the importance of due diligence when licensing works. Condé Nast’s lawyers should have verified that the Warhol Foundation had sufficient rights to license the use of the prints, especially since Condé Nast owns Vanity Fair! 😂🤣😅

I think the fact they only used 1 of the portraits from Andy Warhol, rather than reproduce the entire art-piece hurt their case. Not sure if it would have gotten rules fair use if they had, but using just the one portrait made it absolutely clear it was a direct competitor to the original work. Like a game dev that licensed Unity/Unreal, built a game, and then later sold the engine with most of the game bits removed as their own proprietary engine.

6:56 Oh, that Twitter logo looks intriguing 😜

I think there needs to be consideration for the size of the entity being affected by the use of the image/character/idea. As a property gets larger, society itself starts contributing to it. Holding ownership over these things does not help creativity, and in fact suffocates it. Society as a whole would likely benefit from more lax rules, especially if there were still protections for the "little guys"

@extracredits Could y'all explore the topic of sampling? Like in music you can sample a huge amount of someone elses song and it counts as fair use. In visual art, Warhol's art could seen as the same. Books have fanfiction and some even become bestsellers. Could/Should that be transferrable to games? Why is having Mario in my game not fair use, if I made the 3D model myself and I am not making a Mario(Game) clone?

Germany has its own take on the topic. You may license creative work to others, but will never lose the authorship, eg if you are employed by a company, your work stays yours no matter what. I am fairly sure that Mrs Goldsmith would have been acknowledged as the creating artist by from the beginning, and received her proper share in the form of "Tantiemen" aka royalties.

That outro song is a nice touch

Love these videos guys! Please do a video about fanfiction!🎉🎉🎉🎉🎉

I know that one of the factors is market substitution - can the new work act as a substitute for the original - but i wonder if that should be able to work in both directions. Yes, the Walpole....sorry, Warhol piece can act as a substitute for the photo - but since its had a transformative use, can you argue that the photo can act as a substitute for the Warhol piece? I feel that should be a relevant consideration.

Copyright and Patent Law both make sense in the current society. 90+ years protection for copyright vs 15-20 years for patents make no sense though. Also learning from anything should always be allowed, no matter if human or AI system.

The ending was really *cool* Nice job *Extra Credit’s Team*

@0:31 John Wick: Gaming Attourney at Law!

Is it just me, or is the only time the characters have ever had fully fluid movement, is when human Matt shows up. I can't think of another instance.

lol that "X" picture was amazing :)

I don't think the court ruled properly here, becajsw the purpose of licensing the photo wasn't just to use a reference image of prince, it was to use a highly stylized image, especially one with significant cultural cache, which is a role not filled by the original

I haven't finished the video, so it may be expressed in it. One way of looking at how Prince print verdict would impact the games industry would be whether creating mods based on other mods is copyright infringement. This is a hypothetical that creating mods in and of themselves are entirely viewed as fair use. An example I can think of is someone using the mod "Gun Mario 64" to create another mod. If the weapons in the original mod are created by the mod-maker and they don't require Nintendo hardware or software to work, they could potentially be used seperately in another game or mods without breaking copyright law, but if they were to port the base game files from the GM64 mod and use that, then it would be infringement because they are not getting the original game code directly from Nintendo in a legally permitted way.

Anything that gives corporations more power than they already have is bad for anyone who isn't a corporation. Companies already have enough power to throw lawyers at innocent people until they are bankrupt; any ruling that favors them might as well be a death sentence for dozens of creative works.

So, question, what if I use the whole story of a certain video game, styles, character and so on for a different story that I make on my own for example: let's say there is a popular horror video game and then I use the characters and everything in it to make a video about romance or action using the characters and story, and then I post the video online, what's going to happen, and am I allowed to do that?

This reminds me of the issues of the Battletech (early) and Robotech/Macross franchises.

I get very uneasy any time any kind of ruling gets made on copyright law, regardless of the specific case in question. Because such things are ruled on in courts, by people who study law, not art, it often seems to come down more to who can bring a bigger, better-paid team of lawyers to the table than who is actually in the right. I maintain that it is not right - in a moral, social ethics sense - that copyright law as it stands is concerned with who makes money rather than what can result in more meaningful cultural content. The dissonance between those two priorities is why fair use is leaned on so often by creators and also why it is not something explicitly spelled out in the law.

nice to hear how this is actually supposed to work

In all honesty, there should be an addendum to copyright law to govern AI works

1:34 debatable. Well the buisiness would be crowdfunding based and reputation with skill would be more important than holding copyright

Should have paid both artists, not just to be sure but because it was correct. I can understand wanting B more then A, but B can only exist if you have A....

If you remix a song, even with the original artist's permission, you should have to include the original artist in any profits made off the remix unless otherwise agreed upon. I'd also view a remix as separate from sampling which would be more like a collage in this metaphor and I do think should be considered transformative. Though apart from that, I do get annoyed at companies like Nintendo for squashing so many fan games and projects.

I get hit by the youtube audio bot copyright on 80% of my videos and 99% of the time, the claim gets removed.

I have Nebul and while I enjoyed it, I wanted features lile the ability to make a Playlist or continuously play videos from a given creator. Also you all should try and get more educational RU-vid channels to join. Like the Gaming Historian or Hardware modders like Macho Nacho Productions.

Thanks again

1:41 Mario killimg goomas with a hammer

Video game footage is very nuanced. Is it skill? Is it perspective? Is the player just skipping all the dialogue? Reacting to the dialogue? I feel that "LP" type footage is very borderline. If someone plays an entire game, start-to-end, commentary or not, that is transformative if the game isn't "on rails" (eg cutscene QTE's, pre-rendered footage, or pre-recorded FMV.) Nobody in their right mind is going to watch a LP over playing the original game unless: - It was platform exclusive (eg games on the PSP/Vita or GB/GBA/DS/DSLite, and also the Wii/WiiU) - Some gimmick of the platform makes in unviable to play the game yourself (eg VR game motion sickness, 3DS games "3D" effect inducing migranes, FPS games motion sickness) In many cases, a LP actually slots into one of these roles: - It's a second-screen evergreen video (eg an LP to play at the same time as playing the game, very helpful for learning techniques) - It's a "how to" video (minecraft builds, starfield ship builds, etc) - It's a speedrun "ghost" video - It's an archive of footage of the game at that version/platform, for a game that changes over time (such as the case of MMORPG and MMOFPS games) Commentary on game footage is very hard to do in real time, because you can only add a commentary if you have played it before. There is no way to have insight to a game you have not played unless you're the developer. Like considering how many games have basically been abandoned by their IP holders, or will never be re-licensed for re-release or remakes (like if you want to play a GhostBusters(TM) game, you better buy it while it's new, cause Sony has a track record of killing their licensed products quickly.) So sometimes watching someone play it, is the only way of even knowing it existed.

yea that ai stuff will be very interesting. i have heard many arguments for and against it and it seems like courts could decide either way. it is also veeeery tricky, because while there are individuals that use that stuff to fuel their personal expression, there are also bog corporations that just plainly make loads of money from it. i support the first, but hate the latter...

I agree with the court's decision. If the magazine cover had used the whole artwork rather than a single panel it would have been transformative enough.

None of this maters if people can't access the legal system. Without access it's the side with the scariest lawyer talk.

I liked the thumbnail how Mario has a hammer behind a woman

I've always wondered how you get away with using your intro song. Does that count as fair use as well?

I've been wondering: if an American uses a work from a country that is a member of WIPO, do they not get fair use protection? As in, are they bound by the copyright laws in the country of the works origin? And vice-versa, do I have a measure of free use protection when drawing from a US work, even if there is no fair use concept in my country?

PANR has tuned in.

here is my take on the issue presented... warhol died almost 40 years ago... so the original work is even older than that... it should have been in the public domain ages ago.

wow that got me a headache. I mean shouldn't the rights of the Prince picture belong to news week. I mean they were the one who hired Ms Goldsmith to take the photo

Aside from showing off fully animated, you (nice smooth animation btw) what's wrong with bean person you?

here is a very niche segment of copywrite law i know about... Private Servers for those unaware, 3rd party unlicensed versions of FF11 and WoW are very common how is this legal you ask? well it can go either way, and it depends how the PS handles itself. 1) obviously the PS can't claim it owns anything and can't profit off it 2) the making of a "legal" PS means nothing was stolen or copied/Pirated. this is because of the EULA {End user license Agreement} it's that copy and pasted wall of text everyone agrees too without reading to play a game. and a part of it gives the user the right to own the game's files as long as the EULA isn't broken. the main way you break the EULA when you copy/redistribute the files. however, since WoW and FF11 have no charges before download, anyone can just download the "Client side" files 3) the "Server side" files is the make or break if a PS community even exists. while it is true that the "Server side" files are protected by copyright and only owned by the holders... it does nothing about someone making their own proxie of the "Server side" files... making 3rd party compatible programs isn't covered in Copyright, some argue backwards engineering code should be, but thats it's own can of worms. as such, as long as the community can make a functional proxie for the Server Side and redirect the Client side files to it... no pirating was broken, as the owners don't own the 3rd party programs used to do this

RL zoey needs more treats!

Considering this channel has been using a Mario 64 song as their main theme since the beginning...

It seems like the court case was decided by whomever those in charge liked more that day.

Without copyright big corporations couldn't lock stuff away and we would be in a better world

What do you mean Prince died?!

Platforms like Nebula have existed in the past. They never lasted.

Fair number of visual references to VALVe in this one. sm

I love how fair use is literally FU 😅😂

The entire “Copy write promotes creativity” is such a massive lie when you remember the Astral Sea of Fan Work Heck, most of our work is just ripping off something that already existed. Spears and swords are just ripping off nature’s claws and teeth

Copyright law in general is absolutely broken and in fact, unconstitutional. The constitution grants the authority to congress to pass legislation that protects copyrighted works quote “for a limited time”. Congress has so repeatedly passed extensions on copyright protections that make it clear their intention is to have copyright indefinitely, violating their constitutional authority. The original promise was 14 years of copyright protection and now it’s the lifetime of the author plus 70 years. That is in no way “for a limited time”.

I forgot they separated the channels. I was like 90k seems low for this Chanel

I take a very negative stance on US copyright. They are not written to protect creators or the general public, they're written to protect corporations.

More often than not, courts will side with whoever has more money.

'Nuanced' Or mostly arbitrary.

The warhaul decision feels flawed because who is the magazine supposed to pay to license the photo. Is material made under fair use still explicitly owned by the company you are "copying" could a company seize material made under fair use and use it any way they wanted. At that point why can't they turn around and limit the use of the material in any other fashion via any other actor including the the creator of the fair use content. Ie using a clip of a video that used fair use is not fair use if the new video wouldn't also fall under the same fair use standard. Even if the new video is made by the same channel.

If copyright is truly there to promote creativity, then we need a new law or an addendum to the copyright law, that states that corporations can only hold 10 copyrights at a time, to prevent them owning it all.

Aww IRL Zoey. I wanna give her scritches and belly rubs.

I think in THAT CASE they got it right. But it's a seriously case by case thing.

Fair Use only applies when its non-commercial. That means youre not publishing a book, or getting ad revenue from RU-vid, or making it exclusive to Patreon or Nebula. It has to be something you DO NOT STAND TO PROFIT FROM. Fair Use should never have entered into this in the first place. I don't know what, it any, laws protected Andy Warhol with his creations, but Fair Use is pretty clear on this point I thought.

Good stuff ! Would anyone happen to know if this effects videos of roms on youtube ? I've noticed that youtubers seem to have been doing okay recently, with a few exceptions, but this ruling sounds like it opens the door for certain companies to take down content more easily. For example I've been contemplating making a video of gameplay of Run and Bun (a pokemon emerald romhack that changes a lot) which I'd argue is pretty transformative, but now I'm not so sure. Yet at the same time, plenty of other videos exist of it and haven't been taken down. Should I be worried or not ?

Of course you should be able to use copyrighted work to train AI. Just like real humans can train on copyrighted works. If a piece of work ultimately infringes on copyright must be determined on a case-by-case basis regardless if the work is made by a human or generated by AI.

So... a Sparta Remix isn't transformative enough?

ZERO PUNCTUATION MENTIONED WTF IS A SERIOUS REVIEW 🇬🇧☕🇦🇺🎩!!!!!

Oh man this is gonna cause a lot of problems for Pokemon fan games isn't it😓

I don't think that Orange Prince was transformative, but then I also *HATE* Andy Warhol and any artist who simply copies some other artist's work (like the original graphic artist who actually designed the Campbells soup can) and tries to claim it's artistic freedom.

This is a joke. So, you couldn't afford Trixie Mephistophles? Or even Devon? Valid.

I think the the supreme court made a reasonable decision based on what fair use has been described as for many decades... But I think fair use is not broad enough nor well enough codified.

WALPOLE!!!

Fair use is notorious for armchair solicitors deciding what feels right to them and then reverse-engineering an interpretation of the law to support that, then getting strangely defensive about a legal interpretation they would have to know is weak.

Goldsmith definitely deserved a profit promise for that photo. Photography is an art that takes a lot of training and dedication to get to different professional levels.