Copyright in Characters: What Can I Use? Part II
Learn more about copyright and its limits in regard to characters. This is the second part in an three-part series.
First, thanks to everyone that read and commented on the original post! The comments were great and touched on a few subjects that weren’t discussed in the post, so I wrote this follow up post to expand on a few of the copyright issues that were brought up. I’ll also be posting Part III soon, which will cover trademark issues.
Copyright Law
Let’s first dig a little deeper into copyright law:
I explained in the previous post that copyright is a form of protection given to authors of “original works of authorship”. The author is typically the person that makes the work, but can also be an employer if the work is considered a “work made for hire”. I won’t discuss “works made for hire” in this article, but you can read more about that on the Copyright Office’s circular on works made for hire.
The works need to be “fixed in any tangible medium of expression” for copyright protection, which means that the work needs to be recorded somehow – essentially, something more than an idea. A painting satisfies the requirement, as does a video or audio recording, and so do video games (although video games have many different copyright involved).
Copyright is actually a bundle of rights that give the author of the work the exclusive rights to reproduce (i.e. make copies), prepare derivative works (i.e. make new works based on the original work), display, distribute, and perform the protected work. These rights are granted automatically to the author but registering the copyright has certain advantages, which are discussed in the Copyright Office’s circular on copyright basics.
Copyright, along with trademarks and patents, is a type of intellectual property. This means that the rights granted to an author are treated as property that can be transferred by the author in a number of ways, such as licensing and assignments. Also, each right is an individual right that can be transferred on its own.
For example, an artist can allow someone to show the artwork in a gallery (display the work) but not make prints of the work (reproduce). Or, keeping in line with characters, a game developer can allow a publishing company to distribute copies of the game, which include the individual copyright in the character itself, to different platforms such as Steam (reproduce and distribute), but not allow the publishing company to make new games based on the original game or change the character in some way (which would be making derivative works).
What doesn’t copyright protect?
Copyright is limited in its scope and specifically does not protect “any idea, procedure, process, system, method of operation, concept, principle, or discovery”. Patent law typically covers these instead of copyright.
Copyright also doesn’t protect names, titles, or short phrases, which is explained in this Copyright Office circular. However, these can be protected as trademarks, which I’ll explain in Part III.
In the games and characters context, this means that things such as game rules, game mechanics, and basic plot are not protected by copyright. Nor does copyright protect the name of the game or character names. The Copyright Office has a helpful article on the subject that’s worth reading.
Copyright and Fair Use
We’ve covered what copyright protects and what it doesn’t, but sometimes works that are protected by copyright but can still be used in certain situations defined in the “fair use” doctrine.
Fair use is a legal doctrine that permits limited use of works protected by copyright without requiring permission from the copyright holder. However, fair use is a defense to copyright infringement, which means a jury in a federal lawsuit must answer the question as to whether the use is fair use (i.e. you’ve already been sued). That’s why I always recommend seeking a license first.
Fair use comes in many flavors. The most typical examples are commentary, criticism, and parody. To determine fair use, Courts look at the following factors:
- The purpose and character of the use, including whether such use is of a 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 the character and game context, fair use is often used in order to make game commentary or critique videos. Some of the “Let’s Play” videos are good examples of this.
For the sake of keeping this article on the shorter side, I’ll refer you to this Stanford article for more examples and a good breakdown of what each of the fair use factors are supposed to mean.
De Miminis Use
In certain situations, you can also use copyright protected works in small portions without the author’s consent. This is because of a legal doctrine called “de minimis use”. De minimis use is tricky because, like fair use, there are no clear lines for when a use qualifies as de minimis and you also have to prove this in court.
The term “de minimis” is from a shortened Latin phrase that translates to “the law does not concern itself with trifles”, which essentially means in the legal context that not enough of the copyrighted work has been used to amount to copyright infringement.
This is different from fair use because de minimis use relates to uses that are so small that courts won’t bother with them, while fair use is intended to provide avenues for the public to use works in a way that would otherwise be considered copyright infringement.
In the character context, de miminis use might allow for a character to briefly appear in the background or be mentioned in a factual manner.
I hope that helps and, again, feel free to leave a comment below if you have any questions!
Read the original post, "Copyright in Characters: What Can I Use?"
Read the final post, which covers trademarks and characters.
Notice: This post is for informational purposes only and is not a substitute for professional advice based on a review of individual circumstances. Please contact an attorney regarding your particular legal issues.
Using Music: Do I Need Permission?
Understanding copyright law for music and when to get permission to use a song.
Q&A: “I’m making a video for my business that documents a project and isn’t used to sell a product. Do I need permission to use a song in the video if I credit the author of the song?” This is a great question and one that comes up often in the context of YouTube.
Copyright Law
We’re talking about copyright law because copyright protects original works of authorship fixed in a tangible medium of expression, which includes recordings of music.
As a general rule, you should always get permission from the owner before using the work for anything. Simply crediting the author doesn't get you past copyright infringement, especially since the author might not be the owner of the copyright!
Get Permission
In the US, copyright law gives the owner of a copyright the exclusive right to copy, display, distribute, prepare derivative works, and publicly perform the work. These exclusive rights can be individually granted to third parties in a license or assignment by the copyright owner, which we’ll discuss in a later post.
To use a song in a video you need to embed the audio in the video file. This involves making a copy of the song (an exclusive right) because the song file does not just transfer to the video – a copy of the song file is made when it is placed within the video file.
The song will also be performed (another exclusive right) because the audio plays during the video. Consequently, you will probably infringe on at least two of the exclusive rights if you don’t have permission from the copyright owner.
What happens if you don’t get permission?
If you’re lucky, the copyright owner will be happy you’re using the work (or just not find out) and leave you alone, but that’s a rarity considering that many owners vigilantly police their copyrights.
Most likely you will get a cease and desist letter that tells you to stop any and all uses of the copyrighted work and possibly pay the owner money to settle the issue or enter into a license. Cease and desist letters aren’t legally binding but they are a serious issue and you should consult an attorney if you receive one. Furthermore, there is no requirement to send a cease and desist letter first - you may just end up with a lawsuit on your hands.
If the alleged infringing use is online, then your service provider may also receive a “DMCA takedown notice” from the owner of the copyright, at which point your service provider is required to prevent access to the accused material. There’s a lot more to DMCA takedown notices but that’s getting outside the scope of this Q&A.
Fair Use
Okay, but do you always have to get permission?
First of all, remember the general rule: always try to get permission. But back to the question: no, you don’t always need permission, but there are very specific rules as to when you don’t.
The doctrine of “fair use” determines when you can freely use someone’s copyrighted work without permission. This includes purposes such as parody, criticism, comment, news, and education.
For fair use, courts look at:
- the purpose and character of the use, including whether the use is of a commercial nature or is nonprofit educational
- the nature of the copyrighted work (i.e. how creative it is)
- the amount used and how substantial that use is
- effect of the use upon the potential market for or value of the copyrighted work (i.e. will it make them lose money)
I never recommend that someone try using the fair use argument to start with. Going for fair use should be a last resort because it can be very difficult to prove, and the only way you can really prove it is in court, i.e., getting sued.
Even if you aren’t selling a product, a use can still be a “commercial use”. For example, a video that isn’t necessarily selling a product is still likely promotional and is not nonprofit educational.
Getting Permission
So if you're set on using a certain song, you need to look into getting permission by asking the copyright owner if you can use the work for a certain purpose. The permission doesn’t need to be in writing, but having it in writing (even just an email) helps if a dispute ever arises because you have something to look back on.
The tricky part with music is that the copyright in a recording is broken into two parts: the recording itself (the master sound recording), and the written music and lyrics (the composition) that the recording is based off of. If you want to license a recorded song, you need to get permission from the copyright owner of both the master recording and the composition.
The easiest way to do that is to go through one of the performing rights societies (ASCAP, BMI, or SESAC). They have the contact information for music publishers, which typically have the right to license the song. If it's a small band, you can try contacting them directly too.
Also, there are a few websites that have music available for this sort of thing. Some charge and some don't - depends on the type of license. If you want to try to find free music, I recommend starting with music licensed under Creative Commons, a nonprofit that provides free public licenses. You can find that here: http://creativecommons.org/legalmusicforvideos
The Take Away:
Get permission from the copyright owner by seeking out a music license. Fair use is a viable but risky alternative, and the recent Beastie Boys v. GoldieBlox is a good example of what happens when you avoid getting permission (*spoilers* GoldieBlox was sued).
Notice: This post is for informational purposes only and is not a substitute for professional advice based on a review of individual circumstances. Please contact an attorney regarding your particular legal issues.
Copyright in Characters: What Can I Use?
Learn how copyright law affects video game characters, and ways to avoid copyright infringement. This is the first part in a three-part series.
Q&A: “How do [some video games] get away with using so many famous franchise movie characters? We got DMCA'd for making a robot graphic that ‘resembled R2D2’.” Good question! The answer is actually more complicated than it might seem. Let’s dive into this:
Copyright Law:
For a work to qualify for copyright protection under current US copyright law, it must be an original work of authorship, fixed in a tangible medium of expression. “Original work of authorship” means it must be independently created by the author and possess some minimal degree of creativity. The creativity bar is pretty low, and most things will pass as being creative.
“Fixed in a tangible medium of expression” means that it has to exist somewhere somehow, i.e. writing something down, recording a song, or drawing a picture. Consequently, copyright law does not protect ideas; only the original, fixed expression of that idea by the author is protected.
The distinction here is expression of the idea. Actual copying of the expression of the idea is likely copyright infringement, especially in the commercial context, however copying only the basic idea behind the work is copying unprotected ideas and isn't copyright infringement.
Copyright in Characters:
For characters, the character only becomes protected under copyright law once it becomes a unique expression, i.e. drawing your own rendition of something or adding certain attributes. Concepts like robots, men in black, beefy army dudes with guns, samurai, etc., are called “stock” characters, and don't rise to the standard of creative until the author adds something more or expresses that concept.
This line can get pretty blurry, especially in the context of written stories since there often isn’t a visual element and the author must describe the character with sufficient originality. For video games though, the unique expression is the actual visual character created by the artist.
Famous Characters and Copyright Law:
Famous franchise movie characters, like Rambo, Snake Plisskin, and RoboCop, are protected by copyright law because of the copyright in the film and script, but only to the extent of the creative expression by the author. As I said earlier, copyright law does not protect stock characters. Consequently, any use of a gun-toting cyborg won’t be considered copyright infringement of RoboCop until that cyborg looks and acts like RoboCop.
Also, names alone do not have copyright protection. So just mentioning the name of a character won’t be copyright infringement without more.
The creators of some video games use stock characters and scenery that resemble famous movie franchises. This alone likely doesn’t infringe the copyright of someone else’s work if the game’s character art and scenery are original creations developed by the game company.
Do they bring to mind other notable characters in pop culture because of the context? Totally! But copyright law isn't concerned about that here. That's the area of trademark law, and there may certainly be trademark law issues going on there, as well as rights of publicity.
R2-D2:
So how about using a picture of a robot that looks very similar to R2-D2? Like I said earlier, the idea of robots is not protected. But the expression of a robot with three legs, half-sphere for a head, cylindrical, with blue and white ornamentation? Definitely protected - it's Lucas's expression of a robot.
The other thing about Lucasfilm though, is that they have many of their works trademarked as well. Trademarks are source indicators and trademark law is concerned with likelihood of confusion. So even making a robot that brings to mind R2-D2 could be trademark infringement. Lucasfilm also vigilantly polices its trademarks and copyrights, so I recommend steering clear of that territory.
The Take Away:
Characters can be protected by several theories of law, including copyright law, trademark law, and rights of publicity.
You can’t stop someone from suing you (even if you’re right), and using a famous character may not be worth the risk of a lawsuit, so think about getting a license or using your own original character before attempting to use a famous character.
- Bryan and James
Note: this Q&A was modified to remove the name of the video game referenced in the original question.
Read "Copyright in Characters: What Can I Use? Part II"
Notice: This post is for informational purposes only and is not a substitute for professional advice based on a review of individual circumstances. Please contact an attorney regarding your particular legal issues.
Big Labels Take Aim at Pandora on Royalties
The outcome of a new lawsuit filed by copyright owners against Pandora Media could have far-ranging consequences for recording artists, record labels, and internet music broadcasters. The RIAA and its constituents face an uphill battle, however. Who will survive, and what will be left of them?
The outcome of a new lawsuit filed by copyright owners against Pandora Media could have far-ranging consequences for recording artists, record labels, and internet music broadcasters. The RIAA and its constituents face an uphill battle, however. Who will survive, and what will be left of them? - - - - "The music industry has opened a new front in its war against Pandora Media: royalties for songs made before 1972.
On Thursday, several major record companies filed a lawsuit in New York State Supreme Court in Manhattan, accusing Pandora of violating the state’s common-law copyright protections by using recordings of older songs without permission. Along with a string of cases filed last year against Sirius XM Radio, the suit highlights an obscure legal issue that has come to the fore with the rise of streaming music online: that recordings made before Feb. 15, 1972, are not subject to federal copyright protection and may be missing out on tens of millions of dollars in royalties, according to industry estimates."