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Newcomers DBPro Corner / Copyright Law

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Pazza
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Posted: 7th Jul 2003 00:10
I'm using music in a game, i'm not intending to sell the game. I'm confused about copyright law etc does anyone know anything about this or can anyone tell me any websites that explain this.
thanks
Whatever it is the answer's no!
Megaman Zero
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Posted: 7th Jul 2003 02:05
It all depends on the company that made the music orriginaly. Email them & ask them about their games content, copyright rules & laws.

In the US leagle system, if you own the rights to music in a game, you dont own it in other items like movies, or cd's, even though it is possible to get it in multiple catagories.

If the company has rules against using their copyrighted content, then dont use it, but if they dont, you can use it. Capcom is the most leanient of game manufacturors on this topic, but I will not state for them what you can & cant use.

In the US, there are laws against using copyrighted music from a game, in another game, but if the main company with the ownership states otherwise, they will probably make a no garuntee with it.

GFK
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Posted: 7th Jul 2003 03:03
As a general rule you cannot use copyrighted material in your game regardless of whether or not you intend to sell it, give it away, or whatever else.

Kanzure
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Posted: 7th Jul 2003 03:10
What? Yes you can. You can provide credit, that is if you freely distribute it (unless you paid to get the music)....

~Morph/Kanzure
Megaman Zero
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Posted: 7th Jul 2003 03:18
Sorry morph, but thats not true, most people think that, but its not the reality. Go look it up in the law books if your not sure.

In the end, some game companies allow people to use their copyrighted stuff, depending on what they say, not all will, & most will reply the answere is absolutly not.

As a general rule, you never want to use copyrighted material, unless you email the maker of the song/game, & get their permission.

Some companies will even allow you to purchase rights to use thier material in your game. My friend once tried to get a model from Red Faction for one of his games, & the publisher actually said for $300, you can include the model in one production only, & you can sell that game, provided you give the information where the model comes from, & you pay the fine (sometimes a link is in order either from your game, on on your website.)

If you want to see about purchasing rights to a model, song, or other game material, email the company & ask them if they will allow this & for how much. Not all will allow it, but some will.

You will stand a better chance of getting the rights to the song if you purchase them, but not every company will allow it.

Megaman Zero
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Posted: 7th Jul 2003 03:48 Edited at: 7th Jul 2003 04:12
I did some research into copyright laws & information for the US States, this is the exact word of the text from the website...

http://www.copyright.gov/title17/

§ 501. Infringement of copyright3
(a) Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 122 or of the author as provided in section 106A(a), or who imports copies or phonorecords into the United States in violation of section 602, is an infringer of the copyright or right of the author, as the case may be. For purposes of this chapter (other than section 506), any reference to copyright shall be deemed to include the rights conferred by section 106A(a). As used in this subsection, the term “anyone” includes any State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State acting in his or her official capacity. Any State, and any such instrumentality, officer, or employee, shall be subject to the provisions of this title in the same manner and to the same extent as any nongovernmental entity.

(b) The legal or beneficial owner of an exclusive right under a copyright is entitled, subject to the requirements of section 411, to institute an action for any infringement of that particular right committed while he or she is the owner of it. The court may require such owner to serve written notice of the action with a copy of the complaint upon any person shown, by the records of the Copyright Office or otherwise, to have or claim an interest in the copyright, and shall require that such notice be served upon any person whose interest is likely to be affected by a decision in the case. The court may require the joinder, and shall permit the intervention, of any person having or claiming an interest in the copyright.

(c) For any secondary transmission by a cable system that embodies a performance or a display of a work which is actionable as an act of infringement under subsection (c) of section 111, a television broadcast station holding a copyright or other license to transmit or perform the same version of that work shall, for purposes of subsection (b) of this section, be treated as a legal or beneficial owner if such secondary transmission occurs within the local service area of that television station.

(d) For any secondary transmission by a cable system that is actionable as an act of infringement pursuant to section 111(c)(3), the following shall also have standing to sue: (i) the primary transmitter whose transmission has been altered by the cable system; and (ii) any broadcast station within whose local service area the secondary transmission occurs.

(e) With respect to any secondary transmission that is made by a satellite carrier of a performance or display of a work embodied in a primary transmission and is actionable as an act of infringement under section 119(a)(5), a network station holding a copyright or other license to transmit or perform the same version of that work shall, for purposes of subsection (b) of this section, be treated as a legal or beneficial owner if such secondary transmission occurs within the local service area of that station.

(f)(1) With respect to any secondary transmission that is made by a satellite carrier of a performance or display of a work embodied in a primary transmission and is actionable as an act of infringement under section 122, a television broadcast station holding a copyright or other license to transmit or perform the same version of that work shall, for purposes of subsection (b) of this section, be treated as a legal or beneficial owner if such secondary transmission occurs within the local market of that station.

(2) A television broadcast station may file a civil action against any satellite carrier that has refused to carry television broadcast signals, as required under section 122(a)(2), to enforce that television broadcast station's rights under section 338(a) of the Communications Act of 1934.


§ 106A. Rights of certain authors to attribution and integrity37
(a) Rights of Attribution and Integrity. — Subject to section 107 and independent of the exclusive rights provided in section 106, the author of a work of visual art —

(1) shall have the right —

(A) to claim authorship of that work, and

(B) to prevent the use of his or her name as the author of any work of visual art which he or she did not create;

(2) shall have the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation; and

(3) subject to the limitations set forth in section 113(d), shall have the right —

(A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and

(B) to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.

(b) Scope and Exercise of Rights. — Only the author of a work of visual art has the rights conferred by subsection (a) in that work, whether or not the author is the copyright owner. The authors of a joint work of visual art are coowners of the rights conferred by subsection (a) in that work.

(c) Exceptions. — (1) The modification of a work of visual art which is the result of the passage of time or the inherent nature of the materials is not a distortion, mutilation, or other modification described in subsection (a)(3)(A).

(2) The modification of a work of visual art which is the result of conservation, or of the public presentation, including lighting and placement, of the work is not a destruction, distortion, mutilation, or other modification described in subsection (a)(3) unless the modification is caused by gross negligence.

(3) The rights described in paragraphs (1) and (2) of subsection (a) shall not apply to any reproduction, depiction, portrayal, or other use of a work in, upon, or in any connection with any item described in subparagraph (A) or (B) of the definition of “work of visual art” in section 101, and any such reproduction, depiction, portrayal, or other use of a work is not a destruction, distortion, mutilation, or other modification described in paragraph (3) of subsection (a).

(d) Duration of Rights. — (1) With respect to works of visual art created on or after the effective date set forth in section 610(a) of the Visual Artists Rights Act of 1990, the rights conferred by subsection (a) shall endure for a term consisting of the life of the author.

(2) With respect to works of visual art created before the effective date set forth in section 610(a) of the Visual Artists Rights Act of 1990, but title to which has not, as of such effective date, been transferred from the author, the rights conferred by subsection (a) shall be coextensive with, and shall expire at the same time as, the rights conferred by section 106.

(3) In the case of a joint work prepared by two or more authors, the rights conferred by subsection (a) shall endure for a term consisting of the life of the last surviving author.

(4) All terms of the rights conferred by subsection (a) run to the end of the calendar year in which they would otherwise expire.

(e) Transfer and Waiver. — (1) The rights conferred by subsection (a) may not be transferred, but those rights may be waived if the author expressly agrees to such waiver in a written instrument signed by the author. Such instrument shall specifically identify the work, and uses of that work, to which the waiver applies, and the waiver shall apply only to the work and uses so identified. In the case of a joint work prepared by two or more authors, a waiver of rights under this paragraph made by one such author waives such rights for all such authors.

(2) Ownership of the rights conferred by subsection (a) with respect to a work of visual art is distinct from ownership of any copy of that work, or of a copyright or any exclusive right under a copyright in that work. Transfer of ownership of any copy of a work of visual art, or of a copyright or any exclusive right under a copyright, shall not constitute a waiver of the rights conferred by subsection (a). Except as may otherwise be agreed by the author in a written instrument signed by the author, a waiver of the rights conferred by subsection (a) with respect to a work of visual art shall not constitute a transfer of ownership of any copy of that work, or of ownership of a copyright or of any exclusive right under a copyright in that work.

§ 411. Registration and infringement actions10
(a) Except for an action brought for a violation of the rights of the author under section 106A(a), and subject to the provisions of subsection (b), no action for infringement of the copyright in any United States work shall be instituted until registration of the copyright claim has been made in accordance with this title. In any case, however, where the deposit, application, and fee required for registration have been delivered to the Copyright Office in proper form and registration has been refused, the applicant is entitled to institute an action for infringement if notice thereof, with a copy of the complaint, is served on the Register of Copyrights. The Register may, at his or her option, become a party to the action with respect to the issue of registrability of the copyright claim by entering an appearance within sixty days after such service, but the Register's failure to become a party shall not deprive the court of jurisdiction to determine that issue.

(b) In the case of a work consisting of sounds, images, or both, the first fixation of which is made simultaneously with its transmission, the copyright owner may, either before or after such fixation takes place, institute an action for infringement under section 501, fully subject to the remedies provided by sections 502 through 506 and sections 509 and 510, if, in accordance with requirements that the Register of Copyrights shall prescribe by regulation, the copyright owner —

(1) serves notice upon the infringer, not less than 48 hours before such fixation, identifying the work and the specific time and source of its first transmission, and declaring an intention to secure copyright in the work; and

(2) makes registration for the work, if required by subsection (a), within three months after its first transmission

§ 107. Limitations on exclusive rights: Fair use38
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

§ 106. Exclusive rights in copyrighted works36
Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

504. Remedies for infringement: Damages and profits4
(a) In General. — Except as otherwise provided by this title, an infringer of copyright is liable for either —

(1) the copyright owner's actual damages and any additional profits of the infringer, as provided by subsection (b); or

(2) statutory damages, as provided by subsection (c).

(b) Actual Damages and Profits. — The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages. In establishing the infringer's profits, the copyright owner is required to present proof only of the infringer's gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work.

(c) Statutory Damages. —

(1) Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just. For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work.

(2) In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000. In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200. The court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107, if the infringer was: (i) an employee or agent of a nonprofit educational institution, library, or archives acting within the scope of his or her employment who, or such institution, library, or archives itself, which infringed by reproducing the work in copies or phonorecords; or (ii) a public broadcasting entity which or a person who, as a regular part of the nonprofit activities of a public broadcasting entity (as defined in subsection (g) of section 118) infringed by performing a published nondramatic literary work or by reproducing a transmission program embodying a performance of such a work.

(d) Additional Damages in Certain Cases. — In any case in which the court finds that a defendant proprietor of an establishment who claims as a defense that its activities were exempt under section 110(5) did not have reasonable grounds to believe that its use of a copyrighted work was exempt under such section, the plaintiff shall be entitled to, in addition to any award of damages under this section, an additional award of two times the amount of the license fee that the proprietor of the establishment concerned should have paid the plaintiff for such use during the preceding period of up to 3 years.





Thats just a few minute details of what I found, if you want a more descriptive version, visit the link I posted above, its an official government site, so im just going by what I see. Do not accept all of that for a final, if you want to know more on the actual laws, visit the link I posted...

The Game
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Posted: 7th Jul 2003 05:57 Edited at: 7th Jul 2003 06:18
I remember a court ruling..possibly a supreme court ruling... that spoofs to songs are legal to do...you could rewrite the lyrics(in a comedic fashion) and maybe change up instrumentals then hire a local band and have them record it...that may possibly be a cheaper alternative if your left having the copyright owners wanting you to pay a big fee for the original.

I am the game and I want to play.
The Wendigo
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Posted: 7th Jul 2003 07:40
Wasn't that because of Wierd Al or something how that ruling got in? Cuz I think I hear that "Omish Paradise" was a "violation of copywrites" but he never got in trouble for it but I think he did get sued.

Current Projects: Game Spawn 85%, mini BSP maker 50%, Height Mapper with many features 75%, Space Tactical (Like BC300AD) 15%.
The Game
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Posted: 7th Jul 2003 09:34
Weird Al can parody any song he wants. He does make a practice of getting permission for it out of professional courtasy but he does not need anyones permission legally to do a parody. The Coolio/Weird Al issue was a miscommunication cause he did want permission for it and apparently Coolio did not..by the time Weird Al found out it was too late.

It goes a little further back than that anyways. Here is the website I found on the parody ruling.http://www.artslaw.org/PARODY.HTM

I am the game and I want to play.
Philip
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Posted: 7th Jul 2003 18:37
I have read the posts above with some interest.

To declare my hand, I am, for my sins, an English lawyer. I shall not give you my full professional title as its very pompous and quite embarrassing.

However, as to copyright, most of the advanced jurisdictions in the world are signatories to the Berne Convention. This means that there is a considerable degree of similarity in the copyright laws of most modern countries.

In short, copyright protects the expression of an idea, not an idea itself. There are different types of copyright that protect such diverse forms of expression such as literary works, dramatic works, musical works, typesetting arrangements, etc.

Copyright subsists (is created) automatically when an artistic work is created in which there is originality. Originality is an objective, not subjective, concept. It takes no heed of such subjective concepts as "quality" but instead concerns itself with whether a work is simply original, i.e. new.

Copyright basically protects the work from being copied (as the name suggests). It also acts to protect the work from various forms of display and broadcast.

A common misconception is that there is no breach of copyright if it is done for a non-commercial purpose. This is fallacious. It is as much a breach of copyright for someone to include someone else's music in their free game as it would be for a commercial publisher to do so.

Copyright is usually protected by civil remedies (damages and sometimes an injunction). In various jurisdictions there is also the faint possibility of criminal liability. This is very very rarely invoked.

To avoid a technical breach of copyright the owner's permission must be obtained (via a licence or otherwise) for the intended use of the copyright protected material.

I hope this is helpful.

Phil

What do you mean, bears aren't supposed to wear hats and a tie?
Philip
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Posted: 7th Jul 2003 18:41
I add that another common misconception is that to be protected a work must be said to be:

Copyright (C) George W. Bush 2003 All Rights Reserved

In most jurisdictions such wording is wholly unnecessary. It merely serves as a warning to the public that the owner is prepared to take steps to enforce his/her copyright, if necessary. It does not effect the existence or the enforceability of the existing rights.

The most well known exception of which I am aware are various of the Latin American countries. I believe various of them require, as a matter of law, "All Rights Reserved" to be expressly stated in order for the author's copyright to be capable of enforcement.

Cheers

Phil

What do you mean, bears aren't supposed to wear hats and a tie?
Megaman Zero
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Posted: 7th Jul 2003 20:42
Yeah, my mother is a paraleagle (who by the way is allowed to give leagle advice at $100 per hour I might add,) she asked this question for me to a lawyer, & the lawyer, in the copyright department told her to tell me.

If you are using copyrighted work, you can produce one copy of the game (or whatever your making,) for personal use, you may not upload it to a website, & you may not show it to anyone.

Those words were on his own time for another court hearing that he went to (& won,) but he also said for her to tell me, that he would have to look that up for the whole law regaurding that situation.

As for weird al, I belive he payed people off to get that right (illeagaly, heard it on the news.)

The Game
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Posted: 7th Jul 2003 21:55
http://www.weirdal.com/faq.htm

Here is a quote on Weird Al's website about that.

"Does Al get permission to do his parodies?

Al does get permission from the original writers of the songs that he parodies. While the law supports his ability to parody without permission, he feels it's important to maintain the relationships that he's built with artists and writers over the years. Plus, Al wants to make sure that he gets his songwriter credit (as writer of new lyrics) as well as his rightful share of the royalties."

As well as if you use the guide lines below of this to do a parody their won't be any problems.

"Courts consider four factors in determining whether a parody constitutes fair use and thus is not an infringement:

the purpose and character of use, including whether such use is of commercial nature or is for nonprofit educational purposes;
the nature of the copyrighted work;
the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
the effect of the use upon the potential market for or value of the copyrighted work.

In addition, courts may consider any other relevant factors not specifically enumerated under the Copyright Act. In general, the following principles have emerged from the law on the doctrine of fair use:

Parodies generally enjoy a high degree of protection under the law. Courts generally view parodies as important means of expression that should be protected.
Parodies for nonprofit purposes are more likely to be deemed fair use than those for commercial purposes. This factor, however, is not determinative.
The more the author of the parody changes the original work in creating the parody, the more likely the parody will be considered fair use."

I am the game and I want to play.
Philip
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Posted: 8th Jul 2003 18:08
ShadowG

The advice your mother obtained may be correct in the US, but it definitely isn't correct in England & Wales.

Phil

What do you mean, bears aren't supposed to wear hats and a tie?
Pazza
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Posted: 11th Jul 2003 01:29
Ok I'm a still confused, I live in England so i guess that means I gotta follow UK Laws, but if i put the game on the web which laws am i bound buy?

so can i use this music in my game and distribute on the web?

Could you but it in a "yes" or "no" answer for me or is it not that simple?

cheers.

Whatever it is the answer's no!
Philip
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Posted: 11th Jul 2003 15:45
You are at the very least bound by the law of England and Wales because you live in England and your website will presumably be hosted in England.

As to whether you are also bound by the laws of other jurisdictions which may have access to your website, that is an incredibly complicated question concerning the conflict of laws.

On a pragmatic level, are you seriously concerned by the risk of enforcement? Do you actually expect to be sued by someone if you post your game? To put it another way, are you a wealthy person whom it would actually be worthwhile and not a complete waste of time and money for a copyright owner to sue?

Phil

What do you mean, bears aren't supposed to wear hats and a tie?
Pazza
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Posted: 12th Jul 2003 22:36
Thats an intresting view your suggesting that I just say "screw it" and go 4 it, i'm thinking thats the best answer, if any1 decides to sue me i'll give you a call.

Whatever it is the answer's no!
the_winch
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Posted: 13th Jul 2003 05:32
Due to the huge number of videos and other media available on the web that use music with out permission I would say you are safe.

You will proberly be told to stop before any legal action.
The compnanies/people who own the copyrights may have no intrest in legal action especially if you are not making any money from it.
To be honest the music industry has bigger fish to fry, why bother wasteing time taking you to court when they could be doing something about all the file sharing networks.
Mentor
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Posted: 13th Jul 2003 11:01
they will ask you stop before sueing normaly (but read all of this) since being seen as the big bad company beating the hell out of some hobbyist is bad for your carefully honed public image, even so, some firms like MacDonalds and Franklyn Mint take a "#*~*% the public opinion veiw and just go for trampleing the opposition (although it did backfire for MacDonalds when they tried to get a Scottish Court to ban a Scottish restaurant from calling it`self MacDonalds, seeing as it was owned by members of Clan MacDonald ), while Franklyn Mint have bankrupted a few hundred charitys here in the UK by sueing the Princess Diana Memorial fund for all they have , so it`s better to use original or derived ideas, like Punkaman for Pokemon or Chronic the hedgepig for Sonic the hedgehog, and keep the artwork different, it has to have some noticeable variation to be considered original, cheers.

Mentor.

Philip
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Posted: 13th Jul 2003 13:31
Pazza, I am suggesting nothing of the kind. I am just curious as to whether you believe you would be worthy of extremely expensive litigation being taken against you.

The_Winch also makes a good point. It is that usually companies seeking to protect their intellectual property rights will send you a "cease and desist" letter first.

Cheers

Phil

What do you mean, bears aren't supposed to wear hats and a tie?

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