Can I Quote You?
December 18, 2015 6:21 AM Subscribe
I'm writing a game. I'd like our characters to occasionally bust out a quote from thing I love. Under what circumstances do I need permission?
For example, if a character cooking a stew says, "Nice little white little tender little juicy little missionary stew," do I need permission from the estate of T. S. Eliot?
The "fair use" doctrine, as far as I can tell, extends to research papers, but not creative works. At what point, though, does copyright kick in? If a character looks in the mirror and says, "Are you lookin' at me? Are you lookin' at me?" -- consciously mimicking Robert de Niro in Taxi Driver -- does Columbia Pictures own the right to that?
Moreover, what are the consequences if 20th Century Fox decides it owns "These are not the droids you're looking for"? Do they send a cease and desist, and we take it out of the game, and done? Or are they entitled to sue us into oblivion for the lulz?
At what point do I really need to start getting permission? Two sentences? Fifty words? 250 words?
You are not my lawyer, and I recognize that the answer might be "They probably wouldn't win in a fair lawsuit but they could sue you into oblivion anyway, but they probably wouldn't bother," but to the extent that an answer is possible, I'd love to know...
For example, if a character cooking a stew says, "Nice little white little tender little juicy little missionary stew," do I need permission from the estate of T. S. Eliot?
The "fair use" doctrine, as far as I can tell, extends to research papers, but not creative works. At what point, though, does copyright kick in? If a character looks in the mirror and says, "Are you lookin' at me? Are you lookin' at me?" -- consciously mimicking Robert de Niro in Taxi Driver -- does Columbia Pictures own the right to that?
Moreover, what are the consequences if 20th Century Fox decides it owns "These are not the droids you're looking for"? Do they send a cease and desist, and we take it out of the game, and done? Or are they entitled to sue us into oblivion for the lulz?
At what point do I really need to start getting permission? Two sentences? Fifty words? 250 words?
You are not my lawyer, and I recognize that the answer might be "They probably wouldn't win in a fair lawsuit but they could sue you into oblivion anyway, but they probably wouldn't bother," but to the extent that an answer is possible, I'd love to know...
Best answer: I'm not a copyright lawyer, but my understanding is that there really is no hard-and-fast rule regarding the border between a fair use quotation and copyright infringement; a lot depends on the nature of the material quoted, the nature of the work within which it is quoted, the purpose of the quotation, etc. The degree of so-called "transformation" is also important. I do not believe it is correct that fair use does not cover creative works, but works of research or commentary are generally given more leeway.
From one of your examples, if a character in a film mimicked Robert deNiro in front of the mirror in a context and usage substantially similar to Taxi Driver, then Columbia Pictures might have grounds for an infringement suit. However, if the character performed the same act of mimicry explicitly as an act of mimicry intended to parody or reference Robert deNiro's performance, that would be an act of transformation and probably covered by fair use. See, e.g., Steve Coogan and Rob Brydon's performances in The Trip.
The amount of quotation you're describing here sounds well within the bounds of fair use to me, but if you quote an entire poem (even an extremely short one) then the rights holder could have a case against you. (Quoting 250 words from a novel is almost certainly fine, but quoting an entire 25 word poem is almost certainly infringement.) But I am not a lawyer, and this is only my opinion as a lay person, not legal advice.
posted by biogeo at 6:49 AM on December 18, 2015 [2 favorites]
From one of your examples, if a character in a film mimicked Robert deNiro in front of the mirror in a context and usage substantially similar to Taxi Driver, then Columbia Pictures might have grounds for an infringement suit. However, if the character performed the same act of mimicry explicitly as an act of mimicry intended to parody or reference Robert deNiro's performance, that would be an act of transformation and probably covered by fair use. See, e.g., Steve Coogan and Rob Brydon's performances in The Trip.
The amount of quotation you're describing here sounds well within the bounds of fair use to me, but if you quote an entire poem (even an extremely short one) then the rights holder could have a case against you. (Quoting 250 words from a novel is almost certainly fine, but quoting an entire 25 word poem is almost certainly infringement.) But I am not a lawyer, and this is only my opinion as a lay person, not legal advice.
posted by biogeo at 6:49 AM on December 18, 2015 [2 favorites]
Good advice above. I'd also recommend the Fair Use Best Practices from the Center for Media and Social Impact. They don't have one specifically for games, but there are two creative-oriented ones that seem relevant:
Best Practices in Fair Use for Online Video
Best Practices in Fair Use for Poetry
posted by radiomayonnaise at 6:57 AM on December 18, 2015 [2 favorites]
Best Practices in Fair Use for Online Video
Best Practices in Fair Use for Poetry
posted by radiomayonnaise at 6:57 AM on December 18, 2015 [2 favorites]
Your profile says you are in Canada, where the rules are somewhat different. For one, there is no "Fair Use" in Canada. The Canadian equivalent is called "Fair Dealing" and historically it has been quite a bit more limited, although there have been recent changes that I'm not really up to speed on. Wikipedia has a primer, but like all things legal it's somewhat confusing by design.
Any advice based on knowledge of American Fair Use practices is at best right by accident, but more likely just wrong.
posted by rodlymight at 9:02 AM on December 18, 2015 [2 favorites]
Any advice based on knowledge of American Fair Use practices is at best right by accident, but more likely just wrong.
posted by rodlymight at 9:02 AM on December 18, 2015 [2 favorites]
Quoting from radiomayonnaise's "Online video" link above:
So it might not even be "sue you into oblivion" so much as 20th C. Fox has millions of dollars' worth of lawyers working for them 24/7/365, getting copyright violations shut down is a normal part of their working day, while you simply wouldn't have the resources to fight this all the way up through the legal system.
IOW, for maximum safety, your best course here is to actually consult a lawyer with knowledge of and experience in copyright issues. They'll know and understand and can research the precedents established by past cases, and probably be able to give you specific advice as to whether, say, the T.S. Eliot estate is known to sue, and whether your "Are you lookin' at me" scenario is close enough to make Columbia Pictures sit up and take notice.
Do they send a cease and desist, and we take it out of the game, and done? Or are they entitled to sue us into oblivion for the lulz?
To the best of my 'Not A Lawyer' knowledge, a cease-and-desist is usually where it starts, yeah, and removing the offending material is usually enough to end it, but (again) from a practical standpoint, what does "take it out of the game" entail? What about the copies of your game already out in the public's hands? What would it take to recall unsold/undistributed games? How much would that cost you?
Which is one of the reasons this stuff is settled by lawsuits - even if you remove the material from future releases of the game, the rights holder is not suing for lulz, they're suing because you have (in theory) gained some material benefit from releasing the game, and since you used their copyrighted material, they are legally entitled to a share of that material benefit. So removing it from the game won't necessarily end your legal problems.
On preview: Yes, if you're in Canada, there are different copyright laws than the U.S., but Canada is also a signatory of the Berne Convention Agreement and the WIPO Copyright Treaty, international treaties covering copyright issues across countries, which complicates the situation even further. (You may actually be subject to US law & precedent and have to defend your use in US courts.) So if you're at all serious about this, you should definitely get some real legal advice from an actual lawyer.
posted by soundguy99 at 9:24 AM on December 18, 2015 [1 favorite]
"Copyright law does not exactly specify how to apply fair use, and that is to creators' advantage. Creative needs and practices differ with the field, with technology, and with time. Rather than following a specific formula, lawyers and judges decide whether an unlicensed use of copyrighted material is "fair" according to a "rule of reason." This means taking all the facts and circumstances into account to decide if an unlicensed use of copyright material generates social or cultural benefits that are greater than the costs it imposes on the copyright owner."Which is to say, on a practical level one of your problems is that there isn't a "specific point" at which copyright kicks in - copyright "kicks in" as soon as a work is created. "Fair use" exemptions are outlined generally in the law, and there's a body of legal precedent (outcomes of various court cases - see the Copyright Fair Use Index) that judges and lawyers can refer to in analyzing and deciding a case, but any given individual possible "fair use" exemption has to be determined in the courts, via lawsuit. Your use of possibly copyrighted material might be fair use, but you'll only know that after a judge decides in your favor. And lawyers cost money.
So it might not even be "sue you into oblivion" so much as 20th C. Fox has millions of dollars' worth of lawyers working for them 24/7/365, getting copyright violations shut down is a normal part of their working day, while you simply wouldn't have the resources to fight this all the way up through the legal system.
IOW, for maximum safety, your best course here is to actually consult a lawyer with knowledge of and experience in copyright issues. They'll know and understand and can research the precedents established by past cases, and probably be able to give you specific advice as to whether, say, the T.S. Eliot estate is known to sue, and whether your "Are you lookin' at me" scenario is close enough to make Columbia Pictures sit up and take notice.
Do they send a cease and desist, and we take it out of the game, and done? Or are they entitled to sue us into oblivion for the lulz?
To the best of my 'Not A Lawyer' knowledge, a cease-and-desist is usually where it starts, yeah, and removing the offending material is usually enough to end it, but (again) from a practical standpoint, what does "take it out of the game" entail? What about the copies of your game already out in the public's hands? What would it take to recall unsold/undistributed games? How much would that cost you?
Which is one of the reasons this stuff is settled by lawsuits - even if you remove the material from future releases of the game, the rights holder is not suing for lulz, they're suing because you have (in theory) gained some material benefit from releasing the game, and since you used their copyrighted material, they are legally entitled to a share of that material benefit. So removing it from the game won't necessarily end your legal problems.
On preview: Yes, if you're in Canada, there are different copyright laws than the U.S., but Canada is also a signatory of the Berne Convention Agreement and the WIPO Copyright Treaty, international treaties covering copyright issues across countries, which complicates the situation even further. (You may actually be subject to US law & precedent and have to defend your use in US courts.) So if you're at all serious about this, you should definitely get some real legal advice from an actual lawyer.
posted by soundguy99 at 9:24 AM on December 18, 2015 [1 favorite]
At what point do I really need to start getting permission?
(Based on rodlymight's comment, I'm going to assume that you want to offer this game in the US, so this applies to US copyright - I know nothing of Canada's.)
Technically you either need to get permission or be willing to defend yourself in court at any amount of material that is under copyright, as there is no statutory threshold that you can stay under.
You can make better fair use arguments if you change what you're using - rather than "These are not the droids you're looking for," your character could say, "These are not the [things relevant to your game] you're looking for."
But it's still perhaps better to ask permission unless you are willing to spend time with a lawyer down the line. Disney's licensing page specifies that even student projects using their IP are supposed to write them for permission.
Do they send a cease and desist, and we take it out of the game, and done? Or are they entitled to sue us into oblivion for the lulz?
They might demand that you pay some kind of damages to cover the time they spent on the issue on top of removing it. Statutory damages are supposed to be used at a judge/jury's discretion to punish egregious behavior more so than be a money bonanza for the copyright holder, so you wouldn't likely be looking at hundreds of thousands of dollars of damages but you might be on the hook for thousands of dollars of administrative and legal costs if it goes to court.
The path of lease resistance is to have your characters only quote from clearly public domain sources. Following that, CYA and get something in writing. Some organizations are way friendlier to cultural references than others and will happily give you permission for free if you talk to the right department ahead of time.
posted by Candleman at 9:27 AM on December 18, 2015 [1 favorite]
(Based on rodlymight's comment, I'm going to assume that you want to offer this game in the US, so this applies to US copyright - I know nothing of Canada's.)
Technically you either need to get permission or be willing to defend yourself in court at any amount of material that is under copyright, as there is no statutory threshold that you can stay under.
You can make better fair use arguments if you change what you're using - rather than "These are not the droids you're looking for," your character could say, "These are not the [things relevant to your game] you're looking for."
But it's still perhaps better to ask permission unless you are willing to spend time with a lawyer down the line. Disney's licensing page specifies that even student projects using their IP are supposed to write them for permission.
Do they send a cease and desist, and we take it out of the game, and done? Or are they entitled to sue us into oblivion for the lulz?
They might demand that you pay some kind of damages to cover the time they spent on the issue on top of removing it. Statutory damages are supposed to be used at a judge/jury's discretion to punish egregious behavior more so than be a money bonanza for the copyright holder, so you wouldn't likely be looking at hundreds of thousands of dollars of damages but you might be on the hook for thousands of dollars of administrative and legal costs if it goes to court.
The path of lease resistance is to have your characters only quote from clearly public domain sources. Following that, CYA and get something in writing. Some organizations are way friendlier to cultural references than others and will happily give you permission for free if you talk to the right department ahead of time.
posted by Candleman at 9:27 AM on December 18, 2015 [1 favorite]
I didn't think of this earlier, but your best bet for advice on this that is accurate and relevant to your particular case would probably be your local IGDA (International Game Developers Association) chapter, IGDA Montreal. I've been to IGDA Toronto events and found them to be super open and happy to share knowledge.
posted by rodlymight at 10:00 AM on December 18, 2015
posted by rodlymight at 10:00 AM on December 18, 2015
As Candleman suggested, be careful with the "droids" line. Not only is that a line from Star Wars, now a Disney property, but the word droid itself is a trademarked term (by Lucasfilm). I don't think you're likely to get into trouble, but that would be pushing it.
posted by Mothlight at 12:04 PM on December 18, 2015
posted by Mothlight at 12:04 PM on December 18, 2015
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posted by Cool Papa Bell at 6:38 AM on December 18, 2015 [1 favorite]