Hey wastelanders! We hope you are enjoying your holidays! Before you spill your hot chocolate, we have not received a C&D. Instead, we made a helpful video explaining copyright and trademarks for fan made projects like our own. We intended to release this for last week's update — oops. Regardless, we hope you enjoy the video and share it, like, subscribe, etc. Who knows, maybe tidbits from the game will be uploaded?
C&D is Magic
Hey guys, we have been receiving a lot of concern for our project over copyright and what it means for us as we get further into development. We listen to feedback, and we wanted to address these issues openly with the community and provide an outlook on how fan made projects like us can deal with these rising issues.
The reason being is that there are myths and misleading information surrounding the fandom when dealing with these issues. Such fearmongering only stagnates the fandom’s growth as a whole.
We have composed this information from publicly available sources, experience, and consulted with a practicing lawyer on the matter. As a disclaimer, while such advice should never be taken as absolute or without professional consultation, it should give you a better understanding of copyright and trademark. We are still sure to receive a ton of hate mail, but somepony has to touch on the issue at this point.
Let’s start off simple; what exactly is a copyright? In short, It is exclusive ownership granted to the creator, basically enabling them to do whatever they want with whatever they made.
The biggest myth we have heard is that copyright protects ideas. This is incorrect. Copyright protects expression, not ideas. While still implied in the U.S., Canada extends the notion that a copyright must have a well defined fixation. While the two may seem similar, it is important to distinguish between them. Otherwise, every movie scene or independent film featuring the protagonist walking off into the sunset would be infringement.
Let’s now look at what fandom projects are. Usually they borrow characters, settings, or plot from some popular medium and project it onto a blank canvas with new ideas injected, either for creative expression or those that do it solely for self-interest.
Let’s look at an example: say you took an entire season of MLP and ported it into 3D. You then posted those on the internet to share with everyone. You say to yourself: this is an original work, copyright need not apply. This is entirely untrue. This falls under a derivative work. Transferring mediums does not grant immunity from copyright infringement.
This is exactly what fandom projects are—even fan art—derivative works. Not in whole all the time, but at least in part. However, do keep in mind that In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.
That appears like a hardly accurate portrayal of the current situation. If there is anything this fandom has, it is some amazing user created content, not just fan-art. Josh Wattles, advisor in chief to Deviant Art, [makes a decent talk about fan-art] (www.youtube.com/watch?v=xKBsTUjd910). However, is ambiguous about it at times. Even [Tommy Oliver touches on copyright when defending fandoms] (www.youtube.com/watch?v=KJ3YTyDOW0g).
What is the difference between fan art, animations, and games? Nothing. All are forms of expression; different mediums don’t differentiate between each other when it comes to copyright. When projects like MLP: Online and Mane6 shift their goals or shut down, there will always be a huge controversy. It could be argued that games have a bigger impact on the original work given their size and popularity. However, it is still the exclusive right of the copyright holder to respond to any derived work, so it quickly becomes misrepresentation of information among the fandom when interpreting fan made projects like our own.
Let’s shift gears a bit. We want to introduce you to Canadian copyright law. Depending on the font and format you may receive the bill in, it spans roughly one hundred and seventy six pages including both English and French.
Canada has signed international intellectual property treaties such as the Berne Convention, UCC Geneva, UCC Paris, TRIPS, and WCT. While there is some harmonization, what is interesting about these international agreements is that they do have some exemptions to copyright to allow things like fair use, and we can expand on those exemptions. And that is exactly what Canada did. To bring its Copyright Act into the 21st century, Bill C-11 was made, passed and royally assented by the Governor General on June 29th, 2012.
What is so nice about this bill? While fair use is fine and all, an exception was added specifically for non-commercial user-generated content, generally coined as the “mashup provision”.
29.21 (1) It is not an infringement of copyright for an individual to use an existing work or other subject-matter or copy of one, which has been published or otherwise made available to the public, in the creation of a new work or other subject-matter in which copyright subsists and for the individual — or, with the individ-ual’s authorization, a member of their household — to use the new work or other subject-matter or to authorize an intermediary to disseminate it, if
(a) the use of, or the authorization to disseminate, the new work or other subject-matter is done solely for non-commercial purposes;
(b) the source — and, if given in the source, the name of the author, performer, maker or broadcaster — of the existing work or other subject-matter or copy of it are mentioned, if it is reasonable in the circumstances to do so;
(c) the individual had reasonable grounds to believe that the existing work or other subject-matter or copy of it, as the case may be, was not infringing copyright; and
(d) the use of, or the authorization to disseminate, the new work or other subject-matter does not have a substantial adverse effect, financial or otherwise, on the exploitation or potential exploitation of the existing work or other subject-matter — or copy of it — or on an existing or potential market for it, including that the new work or other subject-matter is not a substitute for the existing one.
Like the fair dealing, this exception is subject to several conditions, namely that the user identifies the source of the original work, that the underlying work copied was legally acquired, and that the use did not have a substantial adverse effect on the commercial exploitation of the underlying work.
This is helpful for any fan made project to say: yes, we are legal—at least if you live and have your infrastructure based in Canada like us. However, that doesn’t always stop cease and desists from coming in. Cease and desists are fired at everyone and everything. Google got a DMCA takedown notice from Microsoft for its Gmail services.
An honest mistake, but they can get pretty ridiculous and are used as a scare tactic. There are resources that can help you and it won’t cost you either. When recieving a cease and desist, submit it to the Clearinghouse.
While they cannot provide legal advice, they can annotate it with questions and answers and provide you with some helpful resources for you to understand what you are dealing with.
A lot of the scare tactics employed originate from the affected company trying to claim statutory damages. This is what hits everyone hard. Being noncommercial reduces any potential statutory damages significantly if you find yourself in a tight spot. However, you should never be manipulated into submission to begin with.
Moving on to trademarks, we would only like to touch lightly on the issue. A trade-mark is a word (or words), a design, or a combination of these, used to identify the goods or services of one person or organization and to distinguish these goods or services from those of others in the marketplace. However, two products can exist in a marketplace with the same registered trademark, but different scopes. A trademark’s scope must be defined at registration and cannot be modified at a later date. Now, Fallout registered by Bethesda Softworks, in the Canadian scope does not cover “downloadable computer game software.”
Their newer title, Fallout: New Vegas, does mention that though. Since we don’t fall under the context of the wares scope for Fallout, we can use it.
On a broader subject of trademark, such names like the six main characters in My Little Pony: Friendship is Magic only have their scope limited to toy ponies, and for some reason, Fluttershy was abandoned. While this doesn’t exclude the character from copyright, it was an interesting find.
So, with that all cleared up, we've got a game to get back to making.
Happy holidays!
-The Overmare Studios' Staff