Flight Simulator on TV rights

October 8, 2007 8:38 AM

Do I need Microsoft's permission to show their flight simulator environment on television?

Doing a program in which I'll be in a flight simulator. I'd like to grab the data from the simulator, and, movie-like, show the plane flying from several different angles inside the simulator environment. My company thinks we need Microsoft's permission to do this. I'm not so sure.
Carried out to the extreme the implications are ridiculous. I'm looking for both opinions, and from anyone who's actually dealt with this on a practiacl level.

posted by asavage to computers & internet (25 comments total)

This is largely a copyright question, and gets into the extremely murky area of fair use. It is difficult for anyone, even a really experienced lawyer in the field, to predict exactly what the courts will decide about fair use, but the four test factors are: (taken from Stanford's excellent page on fair use)
the purpose and character of your use
the nature of the copyrighted work
the amount and substantiality of the portion taken, and
the effect of the use upon the potential market.

Because your use will presumably be a commercial use, that's one strike against you. On the other hand, you will be making transformative use of it, not just showing the whole flight sim from start to finish, which is a point in your favor.
Only you know the amount and substantiality of the portion taken -- are you just showing a 5-second snippet so the viewer sees what you saw? Or is it more in-depth?

My analysis would be that it's entirely possible that this is fair use, but it's not by any means a sure bet. Microsoft is notoriously litigious. Even if you're legally in the right, you still stand to suffer if they drag this into the courts. You won't generally recover attorney's fees even if you prevail; it's usually just cheaper to go ahead and get agreement in the first place, even if you have to pay for it.

Legally and morally, you may have a very good case for using the images without permission -- although I'm not certain of that. What is certain is that practically, it's easier and better (and cheaper) to get permission in most cases like this.

The other possibility I can see right off is a de minimis use argument, but I doubt that will hold water. You're probably using enough for the "average lay observer" to identify it, which makes it more than de minimis.
posted by katemonster at 8:58 AM on October 8, 2007

Hi Adam. My kids and I are massive fans.

I'd be really careful about Micro$oft... they have platoons of lawyers who look for this sort of thing.

I would definitely email someone in the Borg Mothership up in Redmond to find out if they mind.
posted by chuckdarwin at 9:09 AM on October 8, 2007

Probably no harm in checking to make sure...
posted by DMan at 9:18 AM on October 8, 2007

Can you use a simulator from a smaller company that's more likely to say yes to your use of it on television? Or does it have to be Microsoft?
posted by Verdandi at 9:18 AM on October 8, 2007

Your answer for the Xbox. I'd have your lawyers figure out where to go from there.
posted by togdon at 9:22 AM on October 8, 2007

Just as a datapoint: I once submitted a "permission to do X with your software" request to Microsoft and they were very nice, prompt with their response, and they said what I was proposing was just fine, go ahead.

I wish I could give you more specifics, but this was probably close to ten years ago.

Is there a reason you're reluctant to ask?
posted by sageleaf at 9:26 AM on October 8, 2007

There is way too much speculation and fanboy MS bashing in this thread. I know some very litigious companies and MS doesnt even make the short list.

First off, your legal department must know how to parse the EULA. If your show doesnt have one (odd) or they are unwiling to do this research then:

You're asking the wrong forums. MS FS experts live here.

Lastly, my very limited experience with game reviews suggests that this is all fair use territory. Its practically a promotion for MS products.
posted by damn dirty ape at 9:33 AM on October 8, 2007

[IANAL, but I'm in the media biz.] Assuming this is essentially in a news program, as opposed to a commercial or a fictional program, I think it's fair use if you're basically reporting, "this is what this would look like on a Microsoft flight simulator", or "watch me do this in the MS simulator." On the other hand, if you use the program to create graphic content for the show, to illustrate something else you're reporting on, you'd need permission. As an analogy, if you were reporting on accounting, and you said "accountants use Microsoft Excel spreadsheets like this," by way of illustration, that would be fine. But if you were reporting on, say, grape production in California and you used an Excel bar graph to illustrate the trend, now you're using their proprietary graphics as content, which crosses the line.

I would request permission, and I don't see why they would withhold it if it's filmed as a reporting prop rather than a content generator.
posted by beagle at 9:41 AM on October 8, 2007

If Microsoft gives you the cold shoulder, maybe the guy who wrote X-Plane, a competing flight simulator (that I dare say is better than Microsoft's), will be more willing to bargain with you. Since it's just one guy, he'd probably be more willing to just say "sure, you can use my simulator!"
posted by marionnette en chaussette at 9:41 AM on October 8, 2007

I was about to say, "surely your production company has a lawyer on staff who can answer this question better than we can," until I re-read the question and saw, "My company thinks we need Microsoft's permission to do this." Which I take to mean that your lawyers have already looked at this and decided you should get Microsoft's permission. You should listen to them. Plus, it's the production company, not you personally, who's likely to get sued, so they have more on the line.

Carried out to the extreme the implications are ridiculous.

If you carry just about any legal principle to the extreme, the implications are ridiculous. That's not an argument against application of those principles in non-extreme situations, however. In fact, the fuzziness of fair use, as frustrating as it may be to copyright lawyers, is a good thing in that it allows judges to use their own good, common-sense, judgment, and hence avoids situtations where a generally good principle might otherwise be carried to a ridiculous extreme. A judge might well say that a given use would be a fair use for a local access cable show seen only by a few thousand people, but not a fair use on a very popular cable show seen by millions.
posted by DevilsAdvocate at 9:42 AM on October 8, 2007

The wording of your question makes it sound like MS Flight Sim is being used as the software in a sit-in flight simulator (with real controls, etc.). I'd ask the manufacturer of the simulator and see if they've had any experience with this sort of thing. They probably deal with Microsoft's licensing department a lot.
posted by backseatpilot at 9:47 AM on October 8, 2007

You need to have your laywers at the network handle this one. You can't half-ass it, because you are putting them in more danger than you. The production company and the network are the deep pockets here.

Disclaimer: I am not your lawyer, and this is not legal advice, just merely pointing out whose ass is really going to be on the line if you don't check first.
posted by Ironmouth at 10:14 AM on October 8, 2007

You need express written permission on footage that you don't shoot. If you were in a plane filming, that would be okay. But since you are using a product, you will have to get permission even if it's positive/neutral usage of the product.

One time as a PA, my producer used a picture of Emeril from inside his cookbook, but it turned out we were only allowed to use the outside cover. We got a call from his people about a month later and they wanted my company to pay $1000 for the use. Luckily my company's lawyers were able to talk them down to $300 (because when asked who else garnered $1k and the answer was JFK Jr., the gaping disparity was pointed out) and I had to use my hurfdurf sorry I'm an inexperienced PA in order to not bother my producer with this.

That was for Emeril. Imagine what Microsoft would ask. Probably your kidney and first born along with cash monies. If anything, think of your PA's who, along with their other duties, might have to deal with this whilst you are off having other mythbusting adventures. :(

Though, I don't know how responsibilities are spread out on your production staff.
posted by spec80 at 10:15 AM on October 8, 2007

um, I just looked at the page cited above for the XBox and it explicitly includes Flight Simulator for the PC:

And by the way, these Rules only cover games published by Microsoft Game Studios and where Microsoft owns the copyright. We can’t give you permission to use games from other publishers or games where Microsoft doesn’t own the IP. Sorry, but you’ll have to contact them for that. Where you see a link to this text on a game’s community website, then you’re good to go. As you can see, this will give you access to some of the most popular titles on the PC and Xbox 360, including:


Flight Simulator (all versions)*

* Use of individual vehicles may require permission from their manufacturer.


We like your show. Take the cautious route here.

disclaimer: this is not legal advice and I am not your lawyer, I'm just merely pasting shit somebody else linked to above and reading it.
posted by Ironmouth at 10:21 AM on October 8, 2007

Even further down that page, though, it says:

You can’t sell or otherwise earn anything from your Items.
posted by danb at 10:25 AM on October 8, 2007

The link from togdon above refers to Microsoft games generally, and specifically calls out that it refers to "any version" of Flight Simulator:

"so long as you respect these rules, Microsoft grants you a personal, non-exclusive, non-transferable license to use and display Game Content and to create derivative works based upon Game Content, strictly for noncommercial and personal use. We can revoke this limited use license at any time and for any reason."

The non-commercial part disallows you guys from using it, I think, at least as far as this particular license.

But, this license shouldn't disallow Fair Use arguments for the use of the content. Here's the four fair use questions, with my comments:

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

Previously mentioned. Commercial Use is a strike against a Fair Use evaluation.

2. the nature of the copyrighted work

Flight Simulator is a program for rendering the "real world" in a virtual way. There is certainly a good argument for the nature of the work being presentations of facts (how an F-15 looks in flight, what San Fransisco looks like from the air, etc). There isn't, I think, a large amount of "creative or artistic" merit in the raw footage from FS. It isn't fictional, exactly...I think I would give this one to Adam: yes to Fair Use.

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

There is no way that they would be using a significant portion of FS in the clips...this would be a very small portion of the "work as a whole" being used. Another check for Fair Use.

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

There is, as well, no possibility that this use would lessen the market value of the work. Showing clips from Flight Simulator in know way replaces it in the marketplace. In fact, it will almost certainly enhance its value. One more check for Fair Use.

So I think this is a 3-1 in favor of Fair Use of the work. Remember, though, that Fair Use is a defense for copyright infringment...you have to be sued before you know if you are in the right. That's the screwy thing with Fair Use in the US...it's not a harbor, and everytime you use it, you put your head on the block.

Then again, if it's not used, it goes away. I hope you go through with it!

Note: I am not a Lawyer, I am not your Lawyer, and this is not legal advice. I am a huge fan, though.
posted by griffey at 10:56 AM on October 8, 2007

All those various video game TV shows either receive footage directly from the publishers or get permission to use footage, so my gut tells me that yeah, you need to get permission.
posted by ten pounds of inedita at 2:25 PM on October 8, 2007

That Xbox page covers personal, non-commercial creation of "derivative works". That's not what's going on here, so nothing on that page is at all relevant.

As you note, "carried out to the extreme the implications are ridiculous". For example, if you video-interview a guy who happens to be drinking a Coke at the time, obviously you don't need Coke's OK. You're reporting news, after all. You can show a lot of products in the course of doing that, without an OK from the manufacturer or copyright owner. I still think it's fair use, so long as you're not just using the thing to generate graphic content, but you're talking about the product and reporting on a particular experience of using it.
posted by beagle at 2:28 PM on October 8, 2007

Let me put it another way. Cases have something called "the equities" which is a nice way of saying the circumstances of the situation do affect the way a judge will look at this.

So we have your lawyers saying no, you go to a website, where others find a license disclaimer indicating that the use you intend to use it is claimed as copyrighted by the holder of the IP rights and inform you of the claim by the company.

Now imagine if you guys went ahead and used it in your show. In his or her head, the judge would want to know why you didn't contact the rights holder when you had actual notice that the rights holder specifically claimed those rights.

Plus, think of your show--what is the likelihood that the vast majority of the brainy geeks who work at Microsoft watch your show.

I'd bet that Bill Gates watches your show. Microsoft will see this and they will come a callin'.
posted by Ironmouth at 6:51 PM on October 8, 2007

You wouldn't happen to be doing this for a plane-taking-off-on-a-conveyer-belt episode, would you? Hopefully M$ will realize that the benefit to discussion board debates across the world would immediately cancel out any obligation to Microsoft.
posted by Addlepated at 3:28 PM on November 1, 2007

...of course I meant "conveyor." Criminy.
posted by Addlepated at 9:47 PM on November 1, 2007

I'm sure it's too late for my chiming in to make much difference, but when has that ever stopped me?

Anyway, fir what it's worth, I worked on a videogame show for MTV a number of years ago (it was terrible, so I won't tell you the name) as a segment producer and we absolutely got permission from the publisher of every game showed footage of. Most of them were more than happy to grant a license free of charge (we were, after all, MTV, the network that pretty much owned the demo most likely to play videogames), but at least one was reluctant and wanted to charge a license fee. (Namco, I'm looking at you-- there' a reason Donkey Kong was featured instead of Pacman you bastards...)

(One thing I know, however, is that if you DO ask for permission, and the rights-holder says "Of course-- for a fee!" you can't then turn around, use it, refuse to pay the fee and claim fair use. The legal system frowns on that sort of bad faith claim...)

Anyway, that's (a small part of) my experience in the production end of rights and clearances for television. I could expound at greater length, but I'm lazy. Happy, however, to elaborate via email of mefi mail.

p.s. I am SO not a lawyer of any sort, let alone yours, and this is SO not legal advice, lest anyone was laboring under the foolish misapprehension that it was...
posted by dersins at 11:37 PM on November 8, 2007

You're going to need permission - handle getting the permission personally because people respond better to people than to legal departments, and thus they're more likely to say "yes." Then hand them over to the legal team who can hammer out the fine details.
posted by BrianBoyko at 1:57 PM on November 9, 2007

Another vote for X-Plane, assuming the question is still in the air.
posted by floam at 3:09 PM on November 15, 2007

Just saw this episode recently and saw a "Courtesy of Microsoft" or something on some of the in-sim footage and thought "that's weird".

A show I did recently had quite an office environment and at one point featured a MSN Messenger conversation - the producers were worried they'd need MS permission, I think in the end it was decided that wouldn't be the case.
posted by sycophant at 5:10 PM on August 27, 2008