Copyright and Legal FAQ - Part Two
Written by BlackD
Doesn't apply universally everywhere, but don't try to bend these rules or
you may end up in jail. ;)
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Table of Contents
12. What exactly are trademarks?
13. I'm making a game with a name trademarked elsewhere. Is this legal?
14. So can I re-use "unregistered" "common" trademarks and get away with it?
15. If a trademark isn't protected, can I use it?
16. What is abandonware?
17. Where do remakes fall into all of this?
18. Are ROMs remakes/fair-use?
19. I've made my own original MP3 file. Do I have to pay a license fee?
20. I've downloaded a MP3. Can I use it in my game?
21. What is the difference between Royalty Free and Public Domain?
22. GIF files. Do we have to pay for them too?
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12. What exactly are trademarks?
There are two kinds of trademark. The registered kind, and the unregistered
kind. :) And there are two "sub-kinds", common and uncommon.
The registered kind is the one you'll be most familiar with. An "uncommon"
trademark is a non-phrasal trademark. This could be an original product name
like "Fanta" (tm) Coca-Cola Company, or a name like "Ronald McDonald" which is a
trademark of McDonalds Corp.
"The Real Thing" (tm) Coca-Cola Company is an example of a "common" trademark.
Its a phrase or set of words that could be used elsewhere without intentionally
quoting the trademark. Registered trademarks are purchased. You pay a fee to the
Trademark Office, and you get sole rights to use that phrase or title in any
sense connected with your company or product. These are afforded full legal
protection.
The unregistered kind is where you make a game, and give it a name, and don't
want to pay a trademark fee, so you don't. In this case, it will be hard to
prosecute anyone for breaching your trademark. It may be original, but you would
have to demonstrate a clear market dominance and consumer awareness of your
orginality in the trademark in order to win.
Note: This FAQ doesn't cover visual trademarks such as logos. Don't use them
without permission. Simple as that.
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13. I'm making a game with a name trademarked elsewhere. Is this legal?
This question doesn't just apply to game titles, but also character names,
original locations (such as the Kingdom of Daventry), etc.
Legal use of a trademark depends on how it is used. With "uncommon" trademarks,
then the answer is almost always invariably NO. There is no way you could try
and explain to anyone that the title of your book "Starcraft" wasn't inspired
by the Blizzard game of the same name. Likewise, you couldn't use the name
"Guybrush Threepwood" in a game of your own, even if he isn't a pirate, as it is
a VERY uncommon trademark owned by LucasArts and there is no court in the world
who would decide your "idea" for a character with the same name was purely
coincidental.
In the case of "common" trademarks however, there is a better chance for getting
away with it. Especially trans-genre. For instance, I could write a book called
"Diablo", and as long as it isn't about a paladin, a barbarian and a sorceress
teaming up to defeat the three prime evils, Blizzard isn't going to be able to
touch me. It's a common term, nothing to do with their product whatsoever, so
trademark law doesn't apply here.
This isn't always the case though. "Final Fantasy" is a common trademark, as it
COULD be used without relation to the Squaresoft product whatsoever. However,
"Final Fantasy" is already a cross-genre trademark. It has been used in books,
movies, computer games, music, etc. Even if your work was nothing to do with
RPG games whatsoever, they'd probably win a case against you if you used the
name, as they have a clear explicit dominance of that trademark across multiple
genres.
Now to us as computer game makers, we're generally dealing with the reverse
situation. Say you want to call your game "Armageddon". There's already a movie
which has that name as a trademark, so can you use it? Yes. As long as your game
has nothing to do with asteroids hitting earth, or deep-core oil drillers.
Basically, trademarks can only be re-used when the product re-using the trade-
mark bears no obvious resemblance to the original trademark, in any way which
could cause harm to the holder, either by repute or monetary loss.
There's already a game called "Worms". If you made a game called "Worms Assault"
and made it really bad, then you can be sued. Even if it's nothing like the
original Worms game. Simply because they can argue that someone out there might
attribute your product to their company. So really - if you can avoid it, it's
best not to used trademarked terms in your product.
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14. So can I re-use "unregistered" trademarks and get away with it?
It seems like it would be easy to, doesn't it? An unregistered trademark is
afforded very little legal protection. An example of an unregistered trademark
is the term "Kilrathi", used by Origin Inc. in their series of space-opera games
called "Wing Commander". It's true - Origin didn't bother to individually
register the term "Kilrathi". However it's an uncommon term, and even though
not registerered, Origin would have fairly good legal ground to stand on if you
used the term "Kilrathi" in your game. Especially if in your game, they were
cat-like alien enemies locked in an eternal war against the forces of mankind!
With "common" unregistered trademarks however, there's pretty much nothing they
can do. Origin uses the term "Nephilim" to describe another one of the alien
races in its game. Unless the "Nephilim" in your game are also a horde-based
alien invader exactly like the ones depicted in Wing Commander, then there's
pretty much nothing Origin can do to stop you using the name. If they registered
it, it might be a different matter - but as above, if its common - and nothing
to do with their product, then you probably won't get prosecuted.
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15. If a trademark isn't protected, can I use it?
Sometimes. As illustrated previously in the Microsoft vs Lindows case, an
un-protected trademark can cause the trademark to be waived. However this is
not an indefinite waiver. Even though Microsoft lost that case based on previous
behavior, they demonstrated that they are still enforcing their trademark for
the time being, which means another comapny can't come along and try the same
thing again for a while yet. :)
"Tetris" is a trademark, but one that at this stage, would be very hard for the
original trademark owners to enforce. They haven't prosecuted any cases for many
years, and have allowed dozens of products such as "Welltris", "Gemtris", and
"Hextris" to make derivate works of their product AND their trademark, and not
tried a case against a single one of them.
Basically, I can't answer this question until you go through court and the judge
decides. It is up to him as to wether or not a trademark hasn't been protected
based on a case by case measure of merits. As a rule, no - just because a
trademark hasn't been protected doesn't mean you can use it. If you DO want to
try, consult your lawyers first of all.
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16. What is abandonware?
Abandonware is a myth created by a bunch of folks who want to get kudos by
giving away other peoples hard work.
On the internet, the term "abandonware" is used to describe software (usually
games) that is no longer available for sale. This may be because the company
which produced the product has closed, or it has stopped selling and collecting
royalties on that product. Distributing or downloading abandonware is a crime.
Under copyright law, only the copyright holder may expressly donate a given
work (such as a game) to the public domain. If the copyright holder (in the
case we're discussing here - would be a company) hasn't done so - then the work
is still copyright. Even if the company closes, in most countries, the copyright
rights roll over to the government instead. And this copyright remains in effect
for many years still to come.
So how do some sites get away with distributing abandonware freely? Basically -
because the government has bigger fish to fry and aren't going to pursue
prosecution in defense of rights for a product they didn't create and don't
really care about. Generally, the only time folks will get in trouble for
distributing abandonware is in cases that company still exists. As they still
hold the copyright, not the government, they are far more likely to defend
their copyright - even if they're not selling the product anymore.
Don't support abandonware. It is piracy.
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17. Where do remakes fall into all of this?
Remakes is a grey area. Not in the legal sense - strictly, a remake is a breach
of copyright. HOWEVER, a remake MAY be considered fair-use if a case ever in-
fact went to court. Thus far, it hasn't happened. Any such cases have been
settled out of court, with the defendant withdrawing distribution of their
product.
The reasons why they may fall under fair-use is simple. If a game was originally
made on an arcade machine in the 1970s and is no longer sold or available to
the general population, then someone may decide to re-make that game in order
for it to be available to the public again. The company which holds the original
copyright is very unlikely to sue you in this case. While they have the legal
right to pursue a case, they know it could as easily be turned in your favor
under fair-use grounds, which just opens the way for a thousand other rip-off
clones to be created.
If you really want to create a re-make, try and seek permission from the company
which holds the copyright. Contact their legal department and tell them you love
their game, and want to remake it with current technology. Usually, especially
with older games, they really don't care. If you don't want to seek permission
then do so at your own risk, but never charge for the remake. Only give it away
freely. If you charge for it, then you stand to lose not only the product, but
they can sue you for lost income, and the income you've gained. By proving that
the product is still saleable, you've proven to the court that by people buying
your product, the company has lost money that they could have otherwise made if
they decided to remake the game themselves sometime in the future.
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18. Are ROMs remakes/fair-use?
No. A lot of ROM sites tell you "you're allowed to copy this only if you own
the original ROM" or "if you don't own this, you must delete it within 24 hours"
which frankly folks, is a load of baloney.
As already covered in discussion of fair-use in part one of this FAQ, only
libraries (wether they be actual book libraries as we know, or even software
archiving houses, etc) have the right to make copies of a product for archival
or replacement purposes. Ever wonder why "All the great ROM sites always get
shut down!!!"? It's because, despite their proclamations that it's fully legal,
it's not. They get a letter from laywers and they run-hide.
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19. I've made my own original MP3 file. Do I have to pay a license fee?
It depends on how much money your company makes. ;)
As it relates to us as game programmers, if you wish to distribute MP3s as part
of your game product, and you distribute over 5000 copies of your game (wether
these are full version or demo are irrelevant), then you must pay a US$2500
license to Thompson - owners of the MP3 compression patent.
If you wish to distribute MP3s on their own, then you must pay a license fee of
2% of the revenue generated by the distribution or sale of these MP3s.
However, if your company grosses less than US$100,000 per year, you are exempt
from the $2500 licensing requirement for software. Which means, if you're making
freeware in your own time, or even if you're working for a company which grosses
less than US$100,000, then you don't have to pay, and don't have to worry about
it at all. Which means in 99% of cases with Blitz products, they won't require
a license at all.
Likewise with MP3s on their own, or used as a musical medium in a production
such as a video, don't require licensing if they're not generating any income.
The requirement of Thompson is only that you pay 2% of revenue generated by
them. If they're not generating revenue, you don't have to pay Thompson.
If you make a shedload of money (ie, over $100,000 a year) and still don't want
to pay Thompson a paltry $2500, then don't use MP3. Instead, use a public
domain format such as OGG, which attracts no licensing fees.
Note: This entire discussion assumes that you own the copyright for the music
contained in the MP3 file. It has merely been discussing use of the actual MP3
technology itself. Read on for discussion of copyrighted MP3 files.
For more information on costs relating to MP3 licensing, go here:
www.mp3licensing.com/
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20. I've downloaded a MP3. Can I use it in my game?
ONLY if it's in the public domain, or you have purchased distribution rights
for the music. The fact that it's in MP3 format is irrelevant to this discussion
and likewise applies to copyrighted music in any format, MP3, WAV, OGG, etc, or
even MODule formats such as IT, XM, S3M, MOD, etc.
By now I've already covered well and truly what it means for something to be in
the public domain. Music is an original creation and so falls under copyright.
If you don't own the copyright or distribution rights, you have NO right to
include it in your game.
But on the light side - many sites sell royalty free music very cheaply, so even
if you have no musical talent, you can buy distribution rights to music and then
use those tunes in your game. Just google for "royalty free music" to get
started.
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21. What is the difference between Royalty Free and Public Domain?
Public Domain is a work which has been expressly donated, with all of the seven
rights under copyright revoked by the author, for use by anyone for any
purpose whatsoever.
Royalty Free is a work which has had certain rights given up. Most often this
is the rights of attribution and distribution. This means you can use it in your
own products without paying for it again. You've purchased those rights, so you
can use it as much as you want and you don't have to credit the original
author.
However, Royalty Free music is NOT public domain. The original author still
retains a measure of copyright and therefore you are puchasing a usage license,
not an unlimited license to do whatever you want with their product. Before
purchasing royalty free products of any kind (wether its art, music, or any
other kind), read their licensing agreement to make sure that your usage of it
won't contradict what they'll let you do with it.
The most common restrictions placed on usage of royalty free works are:
- You may not resell it or give it away on its own.
- You must pay a licensing fee for each separate product you use the work in.
- You may not take credit for it. Either give no credit, or give it to the
original author.
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22. GIF files. Do we have to pay for them too?
The issue regarding GIF files doesn't actually revolve around GIFs themselves,
but rather the LZW encoding method used to create them, and to decode and thus
display them.
GIF files on their own require no licensing fee. However, if you write software
which writes or displays GIF files, then you must pay a licensing fee to
Unisys Inc.
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