Is Machinima Fair?

(cross-posted on Playaslife.com)

I attended a panel at Play Machinima Law, a Stanford conference on machinima law, where the main discussion was trying to figure out if machinima was fair use, and if it was, to what extent would be considered “fair.” A lot of the discussions focused on the end-user license agreements and how game producers could set boundaries on how game users utilize the content within the game.

In case you don’t know what machinima is, it is an animated film that uses 3D virtual worlds that already exist– such as games or Second Life. For instance, World of WarCraft, The Sims, Halo, CounterStrike, etc. have been used to create machinima. (Machinima.com is one of the best sites for compiled machinima.) These virtual worlds are used for not only their background/scenery but also the characters.

When game makers created games, they had no idea that their games would be used as an engines to create 3D animated movies. However, now that people are using games as filmmaking tools, they are beginning to think whether 1) that violates copyrights of the gamemaker and 2) if so, how they should create rules. Game makers have the advantage of controlling user activity because gamers have to agree to end-user license agreements (although how many people actually read them in detail is disputed).

Game companies aren’t opposed to machinima. To some extent, they are flattered and excited that their products are being used for creative productions. However, at the end of the day, although the end user license agreements are different depending on the platform, most games inevitably create boundaries. On most games, machinima makers are not allowed to create work for commercial purposes. Of course, at this point, lawyers are also arguing what exactly a “commercial purpose” is.

As pointed out by AJ of Kotaku, this is a problem for people who want to make money from their machinima. Also, although submission for film festivals is currently viewed as a noncommercial purpose falling under fair use, one could always argue that the use of the machinima by a director as a promotional tool for future filmmaking deals could be viewed as commercial.

Naturally, the problem becomes more complicated when the machinima maker uses copyrighted music. A lot of amateur machinima (stuff that teenagers post on Youtube) are like music videos with pop songs mashed with video footage from the game. Although music was viewed as a separate legal issue from the perspective of the lawyers (because the copyright holder would be the record industry instead of the game industry), it is still an important legal factor for the machinima makers.

Of all the game representatives that were present, The Sims seemed to be the most open to machinima—especially because it is including an easy-to-use video capturing tool in its upcoming Sims 3. But even in Sims, if there are product placements or other trademark items, machinima becomes a problem. For instance, if your character is wearing a T-shirt that was actually a product placement, would it be okay to portray that T-shirt in the machinima? Those are the types of questions game company lawyers are trying to answer.

Second Life, unfortunately, was not represented at the panel (perhaps because it is not considered a game) but lawyers seemed to be terrified about how copyright would work in Second Life. “Second Life Is worse than real life. You can film in New York without worrying that fashion of someone walking by or the texture of pavement is owned by someone, but not in Second Life, since Linden Lab doesn’t even have authority over the rights of the content that users create,” said Fred von Lohmann of the Electronic Frontier Foundation.

In the U.S., copyright was created to “promote the progress of science and useful arts.” If games had such strong copyright laws in the first place, would machinima ever have been developed at all? And how will companies control users’ behavior with games that are global? Perhaps the best thing is to think of games as the real world, and let people express their creativity without having Big Brother watching over their shoulder.

Boo…First Circuit says no to webcast

At JFB, we took a hard blow today (oh, it’s 3a.m. so that technically makes it yesterday) when the First Circuit said ‘no’ to internet in the courtroom. (Here’s a sketch of what happened)

At least there is comfort to be found in the fact that Judge Lipez points out the irony of the ruling.

When the motions hearing at issue occurs, only those physically present in the courtroom will hear the parties debate the
merits of the motions before the district court. Ironically, however, almost immediately after the oral argument in this First Circuit mandamus proceeding ended, anyone with an internet connection could access a recording of that argument from our website.

He also points out that broadcasting in civil trials are different from criminal trials:

Webcasting the legal arguments of counsel in a civil motions hearing does not implicate the concerns raised by televised trials. Many judges worry that the presence of cameras in the courtroom and the enhanced publicity that cameras bring
changes the nature of the trial process itself. Those fears do not realistically apply to a civil motions hearing where the judge considers and responds to the arguments of counsel. Also, there is no reason to fear the impact of webcasting on any future jury trial in this case. Trial judges can assure the seating of a fair and impartial jury with the application of familiar jury selection practices.

But he says that he can’t support webcasting because “With its sweeping prohibition on the broadcasting or recording of district
court proceedings, Local Rule 83.3 prevents such responses in civil cases.”

Dura lex, sed lex? Damn Socrates!

Other than the purpose of wanting to make our lives difficult, the RIAA obviously  thinks that webcasting the trial will have a negative effect, which only proves that they know that their argument is a weak one. This is a civil trial. If you were confident, why would you oppose to having the trial  broadcast? I mean, if anything, it should be Joel opposing the webcast because he’s an individual whose privacy would be violated by the exposure.

Does Hope poster infringe copyright?

Shepard Fairey, artist of the famed red white and blue portrait of Barack Obama for the poster “Hope” is fighting back for his rights. His artwork is based on an AP photo, and AP wanted credit. I don’t know whether they are upset about not being credited in the first place, or because Fairey has profited from the artwork. A photographer myself, I can understand where AP is coming from, but clearly, Fairey’s poster is derived work, not a tweak of the original.

From the LA Times blog (which BTW didn't have credits)

This case is nothing new, but something we really have to start thinking about. It’s very similar to the case of Richard Prince, although Prince’s derivation of the original photos was, in my opinion, less creative than Fairey’s. I mean, becoming famous because you took a picture of someone else’s picture? Come on!

Warhol's Nine Jackies, taken by moi at the Met.

As I mentioned in a previous post, most contemporary artists are basing their artwork on photographs- think of Andy Warhol, Marlene Dumas… Most of their work is based on publicly-available photos, such as press photos, but with services like Flickr, artists have a huge visual pool to get their inspiration from. Now that the “default” of Creative Commons license is attributing the original author, how does one go about when creating art? It’s not like an academic paper where you can put in a footnote. Should artists write on the back of their canvas if the work was derivitave? Art falls into a weird category, because it is commercial, yet different from what we think when we think of commercial use/purpose.

It’s also very difficult when you’re trying to pin down copyrights because inspiration can come from a number of sources. How can you define which sources of inspiration are more important than others? As an amateur painter, I find traces of Gogh, Klee, Klimt, and perhaps thousands of other artists in my paintings. I am also inspired by people- the particular look in someone’s eye, the specific silhouette of someone’s pose, like Dora Maar was to Picasso. Sometimes I know that I am inspired by a particular image. Most of the time, it comes from a subconscious level, unnoticed by me until someone points it out.

I know that AP may be feeling “cheated” or want to be part of whatever money Fairey made from his poster, but I don’t think this an issue where we have to sort out things with the law. Copyright laws were created to promote the arts, not stifle them. I don’t think artists should have to say where they got their inspiration- that takes out the fun of trying to figure it out. I think every piece of art is a derivation from something that exists, the same as there being no such thing as a new idea. It also doesn’t make sense to have to wait 50 years (or whatever the timeframe is) to be able to freely use an image. Some of the best literature is derivative. Could we have Wicked without the Wizard of Oz? How many volumes of great Harry Potter fan fiction must remain in basements until JK Rowling decides to release her iron hand? Art should be kept open and free.

The beautiful thing that separates humans from animals is that we constantly inspire each other and are able to improvise. Why try to deny something that is the essence of our nature?

Paintings inspired by John White Alexander and an ancient Indian architecture relief. I'm exempt from copyright violations only because these images are very old.

“Baaaad” Kim Jong-Il

I believe in good.

I also believe in bad.

It’s like dealing with children, or adults who behave like children. You can offer a cookie if they agree to be good, or you can punish them for being bad. Sometimes, the cookie just doesn’t work.

Which is why I don’t believe in the Sunshine Policy. The Sunshine Policy only works when you’re dealing with “normal” people. Kim Jong Il is clearly not normal. He has his own rules, his own morals, his own concept of common sense. And he’s not stupid. South Korea was stupid, or maybe naive. They thought giving the North economic benefits would help cushion any shock there would be in the case of a unification. Kim used the money, however, to make nuclear bombs.

Why am I bringing this up? North Korea suddenly doesn’t feel like keeping the military agreements it had with South Korea. The two countries are still technically at war, though it’s nothing like what’s happening in Gaza. It’s just very unsettling because “agreements” made with North Korea really don’t mean anything to them. I can just hear Kim saying, “I promise to do such and such…..psyche!!”

If Kim really liked nuclear, he should have invested in nuclear energy, not bombs. Developing safe, clean nuclear energy technology could have helped the economy and ecology. But no, it had to be about destruction. I wonder if his son (whichever he chooses to be his successor) will be the same. Kim is 66. Unless he dies an untimely death, we may have 20 to 30 more years of him; if he’s like any typical Korean, he will probably have eaten a lot of “good” things for his health and virility. In the meantime, things may not change (or get worse) as the North Korean civilians starve to death.