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Subject: Copyrights/IP: How did they do that? rss

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Jerry
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This has probably been asked before but I can't find it.

I recently played a game called Clusterfight! and it had tons of cards that list names of real-life and fictional people/characters.

In cases like that does the creator or publisher or whoever have to get permission from every one of those people or rights holders? Or is using names ok?
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Jennifer Schlickbernd
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The answer to this is complex. Just keep in mind that some games don't follow intellectual property laws because the publisher is too small to hire an attorney and/or they just don't care.
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William Ford
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The answer is complex because the courts' treatment of games for purposes of the right of publicity is incoherent. Historically, games have been treated as equivalent to pieces of merchandise, like a T-shirt or a coffee mug, which means a license is required to use a person's name or likeness on or in the product.

In 2011, the Supreme Court strongly suggested that at least video games are in the same category as newspaper articles, books, and films, which should mean a license is not required to include a person in a video game. The lower courts are resisting that implication, however, and using different rules for video games than other forms of media, without acknowledging that they are doing so.

As revealed in a document filed in court last Thursday, Electronic Arts is going to file a cert. petition with the Supreme Court in a case it recently lost, Davis v. Electronic Arts (9th Cir. 2015), so the Supreme Court may finally clarify the relationship between the right of publicity and the First Amendment -- if it takes the case, but the Supreme Court has historically taken very little interest in the right of publicity (or related problems under the federal trademark laws).

If you want to see a discussion of this issue, you can watch the oral argument for Davis v. Electronic Arts here:

https://www.youtube.com/watch?v=_hlz3cx6IWQ

If you don't want to watch the whole thing and just want a hint as to why judges don't take the gaming medium seriously, skip to about 09:33 in the argument and note how the judge thinks of video games. And if the judge thinks this about video games, she likely has an even more dismissive view of board and card games.

By the way, as revealed in court last week in Chicago (in the Michael Jordan trial against Dominick's grocery store), the makers of Scene It? Sports paid Michael Jordan $5,000 to make him the answer to a trivia question (with a picture to accompany the answer, but the payment was not for a copyright license).
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Tor Iver Wilhelmsen
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There is also the "parody exception", but then the names are usually puns on the real names and the pictures are carcatures, like the player power cards in Stockpile.
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Jeremy Lennert
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Crito wrote:
If you don't want to watch the whole thing and just want a hint as to why judges don't take the gaming medium seriously, skip to about 09:33 in the argument and note how the judge thinks of video games. And if the judge thinks this about video games, she likely has an even more dismissive view of board and card games.
That is deeply troubling. I don't know what the legal test for expressiveness is supposed to be, and a sports video game is probably less expressive than most, but if video games in general do not count as expressive, then probably nothing in the world should. Video games utilize essentially every expressive technique that's used in any other major art form.
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David Janik-Jones
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Antistone wrote:
Video games utilize essentially every expressive technique that's used in any other major art form.
Except, there's no consensus that video games can even be considered art. (Not an argument I believe, but it's out there anyway.)
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William Ford
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Antistone wrote:
Crito wrote:
If you don't want to watch the whole thing and just want a hint as to why judges don't take the gaming medium seriously, skip to about 09:33 in the argument and note how the judge thinks of video games. And if the judge thinks this about video games, she likely has an even more dismissive view of board and card games.
That is deeply troubling. I don't know what the legal test for expressiveness is supposed to be, and a sports video game is probably less expressive than most, but if video games in general do not count as expressive, then probably nothing in the world should. Video games utilize essentially every expressive technique that's used in any other major art form.
Video games, in general, do count as expressive. Quoting the Supreme Court, the Ninth Circuit accepted this point in Keller v. Electronic Arts, the case decided before Davis:

"Video games are entitled to the full protections of the First Amendment, because '[l]ike the protected books, plays, and movies that preceded them, video games communicate ideas—and even social messages—through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player's interaction with the virtual world).' Brown v. Entm't Merchs. Ass'n, 131 S. Ct. 2729, 2733, 180 L. Ed. 2d 708 (2011)."

Keller v. Electronic Arts, 724 F.3d 1268, 1270-71 (9th Cir. 2013).

However, after accepting that video games get the same protection as more traditional forms of media, the Ninth Circuit then proceeded to treat video games differently than more traditional forms of media. I think the reason is the one reflected in Judge Berzon's comments: judges think that games are a significantly inferior medium of expression, equivalent to a celebrity-embossed coffee mug or a greeting card, probably because they know virtually nothing about games beyond things like Pong, Pac-Man, and Monopoly.

So while games are indeed expressive and the government can't ban them under the First Amendment, games get treated like celebrity-embossed merchandise for right of publicity purposes. Oddly, games do better against false endorsement claims under federal law, at least in the Ninth Circuit under the most recent decision on point.
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William Ford
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Although copyright is mentioned in the subject line of this thread, the present discussion is only indirectly about copyright. The laws that cause problems for game developers who want real people in their games are state right of publicity laws and the federal trademark law (specifically, 15 U.S.C. 1125(a)(1)(A), if you want to look it up).

Assume, for example, a photograph of a person, but she is not the owner of the copyright. The owner of the copyright is instead the photographer who snapped the hypothetical picture out in public. Further assume that the photographer uses this photograph in an advertisement, documentary, game, or whatever, and the person in the photograph sues the photographer under a state's right of publicity law for this use of her likeness.

The defendant -- the photographer -- may claim that federal copyright law entitles him to him to exploit the photograph in the way that he did. Doing so is supposed to be one of the rights of the copyright owner under 17 U.S.C. 106. As a result, there is now an issue of copyright law in a right of publicity case, one that involves a possible conflict between state and federal law, and federal copyright law is supposed to trump (or "preempt") state law.

As a practical matter, this copyright issue is unlikely to change the outcome of the case. The same party is likely to win whether or not the copyright issue is brought up.
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Tor Iver Wilhelmsen
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That is why photographers need a "model release" form/contract in order to use a photo of someone (not part of a crowd) for commercial puropses. For art purposes, though... and you can sell art... it gets muddy.
 
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John duBois
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Laporbo wrote:
This has probably been asked before but I can't find it.

I recently played a game called Clusterfight! and it had tons of cards that list names of real-life and fictional people/characters.

In cases like that does the creator or publisher or whoever have to get permission from every one of those people or rights holders? Or is using names ok?
Games have been using the names of real and fictional people and places for a long time (games that use "long lists" including Apples to Apples and Who Would Win). My guess is that if your game doesn't defame or use images, you can get away with it.
 
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John "Omega" Williams
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JohnduBois wrote:
Laporbo wrote:
This has probably been asked before but I can't find it.

I recently played a game called Clusterfight! and it had tons of cards that list names of real-life and fictional people/characters.

In cases like that does the creator or publisher or whoever have to get permission from every one of those people or rights holders? Or is using names ok?
Games have been using the names of real and fictional people and places for a long time (games that use "long lists" including Apples to Apples and Who Would Win). My guess is that if your game doesn't defame or use images, you can get away with it.

Youd guess wrong then.

All it means is that someone has not noticed and/or has not taken action.

Various laws exist to protect a person from exploitation. Within limits. As noted above it is an immensely convoluted mess.

The base answer is allways. Unless you can get permission. Then DONT. It is NEVER worth the risk of being made a court example of. The risk is there. Go with parodies and name twists. People tend to find those more entertaining anyhow than the actual individual.
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