Video Game Lawyers Tackle Fair Use - Extra Credits

[@extracredits]

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[@danielsantiagourtado3430]

Love your content guys! Always make My day 😊😊😊❤❤❤

[@ietsbram]

Wait wut, you vut out legal eagle? Mustve been juicy drammaaaaah

[@Mustafa_AhmedPGH]

When I did a Graphic Design class last year, our teacher had us watch some videos about copyright, trademarks, and fair use. The videos were explicit in saying that fair use is judged on a case-by-case basis, instead of on general rulings.

[@Stratelier]

I've started saying that Fair Use is basically a _pardon_ from copyright. As in, yes you're guilty of some violation (in this case copyright), but the court declared that your particular context cannot be punished for it.

[@Alverant]

Based on what was presented here, I get and support the decision. The book should have gone to the original source of the photo and licensed it from her. She gave a one-use license to Warhol who used it. His estate had no right to sub-license the changed photo to use in the book. If the book felt Warhol's work was that important, it would need permission from both Warhol and the photographer to use it. That seems fair to me.

[@globalincident694]

I totally disagree. The implication of the ruling is that you can be sued for breaching copyright on something you didn't even know existed. That's just crazy to my mind. After doing more research, it seems it's worse than that. The ruling puts a lot of emphasis on the fact that Conde Nast was using it for commercial purposes, and basically says that fair use *never* applies in commercial situations. This does not feel like a good idea to me.

[@Rot8erConeX]

I feel like, yeah, the photographer should have sued, but not the book publisher, she should have sued the Warhol estate. She gave him a one-use license to Warhol, which after his death his family breached by giving someone else permission to use his work.

[@RurouniZel]

@@globalincident694 Thing is, that isn't a new thing. That's already illegal (breaching copyright on something you didn't know existed) which is why the "Innocent Infringer's Defense" is a thing dramatically reducing the penalties for infringing if the defendant can prove that they had clear and ample reason to believe they had the right to use the thing they used.

[@kaltaron1284]

Maybe if they'd used and licensed the whole art work and not only the orange one, things would be different. Using only part of it makes iot more similar to the original again.

[@UnreasonableOpinions]

@@globalincident694 Not knowing that you are using something you're not allowed to use isn't a very good reason to be allowed to keep using it. Innocent infringement as a legal principle does substantially reduce the penalties for this as compared to deliberate infringement and accounts for levels of fault, like the difference between missing a piece of information you could not have known or were deliberately misled on versus deliberately choosing not to investigate a situation in case you get an answer you don't like.

[@sydneygorelick7484]

I think comparing the photo use to mods etc is tenuous. The photo lawsuit goes photo > painting > magazine, mods etc go game > mod. The reason there was a lawsuit is that the magazine took the transformed work out of context and paid the secondary source, not the primary one. Gaming doesn't really work that way. It uses the material directly, instead of using a liscensing of the material. It'd be more analogous to like, someone printing CD copies of a game plus a transformative mod, and only getting permission from/sending royalties to the mod people. I can't sell copies of modded Skyrim just because there's a mod attached, I can only distribute the mod by itself, you should still have to go buy Skyrim from Bethesda.

[@sarowie]

there is also the aspect that a mod typically requires the base game. You can't argue that a Cop Simulator Mod in GTA V is taking away from GTA V sells. If anything, some people might specifically buy the game to play a heavily modded experience.

[@Babbleplay]

I feel there is nuance. In Let's Play videos for a specific example, every playthrough of a Mario game is all on the skill of the player. Take a Telltale game, like Walking Dead, though, and while individual decisions change bits, overall, a viewer gets pretty much the same experience as the player, and sees the whole story play out.

[@dawnknightx]

We could argue that the skill of the player is irrelevant as long as they are presenting copyrighted material for, potentially, material gain. It could fall under the category of a performance and what you said could be true for a stage production. “It all depends on the skills of the production team, so every performance of Les Miserables could be different.” In the eyes of copyright and fair use, a bad unlicensed production and a good unlicensed production are still unlicensed productions and not protected by fair use.

[@JonathanScarlet]

@@dawnknightx While I might be horribly misunderstanding something, I feel like not everyone who watches a Les Miserables play is capable of putting one on themselves; in a similar vein, some people who watch a Let's PLay may not be able to play the game itself due to the costs of buying the necessary items (console/emulator, the game itself, controllers, recording software, etc.). While I understand the point that the game company itself recording gamplay vs. a dev-sponsored streamer/KZbinr recording gameplay vs. a random joe recording gameplay (all of which intended for profit based on said gameplay) are three entirely different scenarios/entities and should have different treatments (for instance, I would definitely throw a legal book at Random Joe for doing nothing but gameplay without extra audio; or just recording the entirety of a movie and uploading it standalone). However, so long as they are putting an active attempt at their own spin on the experience (via their voiceover, usually), I think they have the grounds to not be infringing. And at some point the personality of the recorder become just as important as whatever game they're playing, if not moreso, at which point the game is just a vehicle to bring themselves to their fans as opposed to the other way around. And I don't think anyone who doesn't reach that point should be punished for trying, just if their attempt is clearly not putting in the effort (see the wholesale re-upload of an entire movie unedited and without commentary example)

[@doddydad2]

@@JonathanScarlet There are occassions where videogame stuff is fair use, but the standard lets play of record, talk a bit, and upload in its entirety is pretty clearly over a legal line. That's not to say it's in developer's interests to attack let's plays, for many mechanical games, watching a let's play doesn't really impact the interst in buying a copy or can increase it. That's only 1 of 4 factors to look at though, and the preference for a fair use to not: use much of the original it's taking from, not commerically benefit fair user and be transformative are pretty flagrently disregarded by most lets plays. For your example of what's clearly not fair use, you say that uploading a film without commentary is not fair use, which is obviously true, but in doing that you imply that if you upload the whole film and commentate over it that's ok. You're going to have an extremely hard time arguing that in court. It being pretty standard to do on twitch isn't actually a legal defence.

[@Pedro999Paulo]

@@dawnknightx that analogy doesnt really follow, because the lets player did "licensed" the game in the sense that they bought the game. if you think it falls down in the category of performance deffinitly is fair use. I still think is a grey area that kind of depend of if the game is more gameplay or story focus.

[@bobbycrosby9765]

A key thing in this Warhol case is that his piece replaced what could have been the other person's piece. It's really difficult to argue that watching a let's play replaces and competes with the experience of actually playing.

[@Skywolve1998]

My thing about the Warhol print is that the original image had to be licensed in the first place. It being used without license would have infringed on Goldsmith's rights, and that licensing did not mean Warhol or his association owned the image now that it was used in his own piece of media. So in licensing their image over to the magazine, they are also licensing the element of it that still belongs to Goldsmith.

[@twistedtachyon5877]

Makes sense she won, then. She gave a one-time license to make the art in a gallery context, not complete with her original photo as an image of the man himself.

[@Noah_Levy]

I feel like other kinds of IP licensing plus open source are deserving of discussion, given their importance in games in particular and computers in general. Traditional copyright law definitely leans on the side of restricting creativity too heavily and is often bent anyway because enforcement to the letter creates too many problems.

[@erikschaal4124]

Open source relies on copyleft licensing. (Which basically uses copyright law to ensure that an open source project remains open source. ) This style of licensing usually allows users to use said software without royalty, even for commercial purposes. And also allow them to run a fork of said software. (Limitations on this will depend on the exact license. )

[@Noah_Levy]

@@erikschaal4124 Thank you.

[@ElNeroDiablo]

@@erikschaal4124 A great example of Free/Libre/Open Source Software (there are nuanced differences between FSS, LSS & OSS that some things might be FOSS, FLSS or LOSS but not the full FLOSS) that has royalty-free commercial uses is something like Linux (Red Hat Enterprise Linux has paid-for technical support of Red Hat Linux for Enterprise-grade commercial usage such as banks) and the BSD-family of operating systems (PS3, PS4, PS5 & Vita consoles use a mix of different BSD-family OSes such as FreeBSD, OpenBSD & NetBSD, with a Sony-made GUI).

[@TJ-vh2ps]

The whole question of who is performing/creating gets very interesting when applied to video games, interactive media and other software. If you create a song in FL Studio using properly licensed music loops/samples, you own the copyright to it. What about a song made in an app that uses properly licensed loops from a specific artist, like Remiix Plastikman Replikants? Do you own the copyright to specific songs you created using the app? What if a user creates music in a video game? Do they own the copyright to that music or does the video game publisher? What about a unique visual performance created within a game? Can a novel speedrun performance be copyrighted? In a video game, who is the performer? Who is the author? It is some combination of the player and the developers/publishers. Who owns which rights is going to get even more complicated very soon.

[@Cythil]

A lot of mods have always been a grey area or even clearly a copyright volition. Not all, of course. Which is very important to note! Just because something can be misused, does not mean every use is a misuse. This goes for Emulators, file sharing and file sharing protocols, VCRs, Tape recorders, AI technology and of course, the most horrid technology of all when it comes to copyright violation. The Printing Press! It is important that we do this case by case bases. And general bans lead to stifling art and new ideas, not promoting it.

[@henryward5457]

I am a little confused about when mods would be copyright violations, especially when they can only be used together with the game.

[@artturintala3837]

@@henryward5457 I guess here it's going for the "change the *insert a model in the game* into *insert a popular thing*" mods or using the mod as is for profit. I do agree on the general note, though.

[@Cythil]

@@henryward5457 When you for example uses assets and intellectual property from other works. A clear example is like importing a 3D model from another game. Or using music that is not free to use. Like everything with copyright, there can be a lot of grey area, however. So if someone develops a novel game based on someone else's IP using their own assets, then it is a copyright volition? Even if it not you likely at least making a Trademark violation. And on the of this, a lot of companies and creators let some things slide. Especially when they see it not as competing with their not competing with something already existing or in the works. Which can even work as free publicity. But do not confuse letting this slide for something being pressable. If you're doing a mod based on someone else's IP it sometimes better to ask. (And in some cases, it actually better not to if I am being honest. Not that I am encouraging people to break the law. But sometimes asking force a company to respond. When they otherwise would turn a blind eye.)

[@devforfun5618]

Rivals of Aether is a great example, the game comes with a lot of original characters and some licenced characters, but a lot of players play it for the customization, so the biggest selling point is that you can use it for copyright violation without the developers being responsible, something that youtube for example can't do, has any company ever tried to remove their characters from Rivals of Aether ?

[@Tuss36]

Fair use is interesting when you learn about what has and has not passed the bar for it. Don't take some random dude on the internet's opinion about it, but I did hear about how Google got sued or similar for having preview passages on their ebook site, the publishers saying that they're sharing their stuff without permission. Which as a layperson sounds like it makes sense, you're copy pasting the text they own to a place they aren't making money from. However, the court ruled in Google's favour, saying that it did count as transformative. The video I learned this from didn't go into detail as to exactly why it was considered such, but based on other examples it provided that I can't remember, I think it was because seeing a few pages digitally is different than holding a physical book in your hands. One isn't stepping on the market for the other because they're different enough markets. Still, it was surprising to learn how little it apparently takes to be considered "transformative", though of course that can differ depending on who's judging that day.

[@LibertyMonk]

A (shop) preview snippet's goal is to entice people into buying the thing, not to satisfy the same itch, so if it isn't "fair use", it really is doing a bad job. If they were talking about the search widgets & blurbs though, I could totally see their logic, since at that point Google is trying to save people from clicking on links.

[@TysonJensen]

Weeeeeellllll, actually the authors and Google settled out of court. So the final ruling in Google's favor was really more about whether or not the authors who settled were representative of all the authors who weren't directly involved in the suit. All the intermediate rulings? They're case law, but not really fully settled case law since the entire lawsuit was cut short.

[@101Mant]

Part of copyright is also if what you are making is a market substitute for the original. An exceprt isn't a substitute for a whole book. A video playing all the way through a narrative based game might be considered one though.

[@TFalconwing]

Reminds me a bit of the AM2R incident. An independent developer tried to make an unlicensed, unauthorized Metroid 2 remake that happened to coincide with Nintendo's own development of a Metroid 2 remake. Naturally, they were not going to let that one slide.

[@PlebNC]

One of the misconceptions I see with Fair Use is declaring it offers protection from prosecution. It doesn't as it's a legal defence not a protection. It's only useful when used in court, not at stopping getting prosecuted in the first place. So dumping a wall of text about fair use doesn't stop copyright claims, it just gives the prosecutor a heads up on your game plan in court.

[@AynenMakino]

Ok, never a fan of ads, but this transition into ad was top-notch. Also IRL ZOEYYYYY! 😍

[@GunmadMadman]

I just want people to stop copy pasting the fair use speil when they upload something wholesale or just completely unaltered

[@YotaXP]

"Copyright not intended." 😅

[@goodfortunetoyou]

One huge problem is the chilling effect of a lawsuit threat to normal people. If you look at something like an AMV, the entire thing is typically an editted concatenation of copyrighted works. The creator has no idea how copyright works, so they might just throw up a disclaimer and pray. In those cases copyright can only be used to prohibit the creation of derivative works and stifle the creativity of those random internet people. In such an instance it does exactly the opposite of its intended purpose. By way of example, the argument that a work should not exist because it copies something else blatently, is an argument that copyright law should not fulfill the purpose of creating an environment that engenders producing new cultural works. Such an argument is in opposition to the purpose stated in the constitution.

[@chutcentral]

You used the Comedy Central "C" logo, you'll be hearing from Comedy Central.

[@AynenMakino]

You guys have particular skill at talking about complicated things to a younger audience. I hope you can keep banking on those strengths while also tackling gamer toxicity and the complexities of running a community team at a game developer. If anyone has the skill to talk about it and to have both the devs and the 'gamers' feel understood, it'd be you.

[@Sabarok]

To add more confusion to the subtleties on this topic, there was a recent court ruling that said "fair use isn't a defense. If something is fair use, it's not copyright infringement", which really just means it can be very volatile to sue over copyright infringement.

[@maybe_tankerguy05]

I've been wanting to make a game featuring characters from a show I like. I was inspired to make it after someone on the show's subreddit suggested someone make a horror game based around the show. It would feature the characters, and loosely some of the settings, but other than that nothing else from the show would be used, it would mostly be inside jokes held by the fans about the series. The game would not be monetized, but I'm pretty sure there would still be legal issues if it got popular.

[@vxicepickxv]

You could try to find the descriptor statement from the copyright holder. As a very specific example, there is a fan game for the virtual KZbin talent group Hololive called Holocure. The game is a fan game that has the blessings of the company in writing before ot was even started. There's even a statement about how he could even make money with it by further talking to Hololive's legal team, but the creator refuses to do so specifically because it's a labor of love.

[@ASpaceOstrich]

Correct. The idea that non-commercial projects are exempt from copyright is a myth. People have mistaken leniency by rightholders for legality.

[@HerrCron]

Or you could create characters and a setting yourself, instead of assuming you are entitled to use something just because you're a "fan"

[@timogul]

One of the things Internet people get wrong ALL the time about "fair use" is when they use b-roll of them playing a certain game as background matter for them discussing some completely different topic. Showing 5 minutes of Mario footage while discussing anything other than that Mario game is NOT fair use. Likewise, playing the _music_ from a game franchise as background music while not specifically _commenting_ on that music is also no fair use. Now, ideally a game company would still be _cool_ with that, it's probably in their own best interests to not be a jerk about it, but they do have the _right_ to be a jerk about it if they choose, and that's not really them being "abusive." A whole lot of the Internet is operated not on actual legitimate fair use, but just on the good will of these companies being unable or uninterested in hunting down offenders.

[@povertymidas]

This is a fantastic primer on how quick copyright gets muddy, thanks for this!

[@WackoMcGoose]

I think the biggest reason Nintendo is (rightfully) used as a copyright troll scapegoat is, they (incorrectly) believe that ultra-restrictive Japanese copyright law applies worldwide, even _takes precedence over_ copyright law in _other_ countries. It... actually doesn't. In fact, I'm reasonably sure that _American_ copyright law is used as the international baseline. So if precedent by American law says "yeah, X is totally Fair Use, no court case needed since a similar case was already ruled on", Nintendo _should not have the ability_ to copyright-takedown it anyway, especially when the Fair Use creator and work is itself legally in American jurisdiction (as is, statistically, usually the case).

[@JoniWan77]

American copyright law is not used as the international baseline. In fact, international copyright law was first established in 1886 at the Berne convention without the US and was largely based on the French "rights of the author". The US only joined the convention in 1989, more than 100 years after a lot of countries had already come together and agreed on rules regarding how copyright works internationally.

[@WackoMcGoose]

@@JoniWan77 ...Oh. So more of the other way around then, _the US_ based the "v1.0" of its copyright law on _already established_ international copyright law? -and then had it perverted to heck and back by the Big Mouse Upstairs- My original point still stands, though: Nintendo thinks _Japanese_ copyright law has worldwide jurisdiction. Nintendo is very, very wrong about this, and needs to be slapped silly for it.

[@JoniWan77]

@@WackoMcGoose Yeah sure, my remark wasn't meant to oppose your point on Nintendo. Technically it's more complicated than the US basing their copyright law on others (historically it's most likely based on UK copyright law, which was with French author rights among the first copyright laws established). Every country still has their own different copyright laws regarding the details (like fair use). International copyright law is mostly meant to offer a minimum protection worldwide, so that someone in a country can't simply steal the IPs of another country. The minimum duration of protection is 50 years after the author's death, so the US didn't prevert it that much. Additionally there's an opt-in rule that copyright protection should not be longer anywhere than in the country of origin (that's a rule the US didn't accept, hence Sherlock Holmes is only now entering public domain in the US when pretty much everywhere else including the UK it was since 2000).

[@TJ-vh2ps]

This case is a great example of the importance of due diligence when licensing works. Condé Nast’s lawyers should have verified that the Warhol Foundation had sufficient rights to license the use of the prints, especially since Condé Nast owns Vanity Fair! 😂🤣😅

[@DomyTheMad420]

i'm sorry but i'm VERY confused about this case? that book was looking to lightly transform a piece of art and then monitize it by using it as the COVER for their book. I feel the painpoint here should be "for profit" not the "transform" part.

[@dawnknightx]

The case essentially went “the book people licensed from the wrong people. They took transformative art and essentially untransformed it enough that the courts rules the original photographer should have been the one to get the licensing fee. At least, that’s how I understood it from how it was presented here.

[@TysonJensen]

The for profit part isn't why the Supreme Court took the case. The Supreme Court isn't there to take cases to figure out venal questions of money. It exists to take on unusual elements of cases to clarify the law. Can I get a license to transform your art, then sublicense it to someone else without paying you? The answer is no, but with extra steps. Because if the art had been sufficiently transformative, then the new use would have a fair-use defense against the original creator. So Andy Warhol is transformative, but not transitively transformative, his estate can't sell rights that it doesn't own.

[@ASpaceOstrich]

Something being used to make money has zero effect on copyright. Your fanart doesn't suddenly become legal just because you aren't selling it. People have mistaken leniency for legality.

[@lunarworx3935]

This is a very interesting topic you bring up. But I'd also be interested in hearing about the nuances and legaity of using and copying video game ROMs and Emulators. Those one of the biggest gray-areas in gaming that's hardly ever talked about.

[@TheJacobG]

It was quite appropriate for Mario and Sonic to be featured here because the other side to this is the copyright owners involved. Some are much more aggressive on protection, others less.

[@RandomPerson-xj3we]

They didn't really touch on this (probably because the lawyers they tapped are versed only in US law) but Japanese copyright is what those companies are held to, and it's why they're so much more aggressive. Not sure why so many people are so convinced they follow US copyright laws only.

[@larryinc64]

SEGA has been rather underhanded with some of their not-Sonic franchises. SEGA of Japan did years ago mass DMCAed Shining Force related content to make sure a new title coming out got more visibility.

[@RandomPerson-xj3we]

@@larryinc64 Oh they absolutely use it to be shady, but there a reason why they can do that and get away with it. Japan updated their copyright laws a few years ago (somewhere around 2017) to actually be stricter with the aim of enabling artists to take down profiting fanworks even easier. I think it was aimed at doujinshi specifically but not universally.

[@vxicepickxv]

​@@RandomPerson-xj3weIt varies from company to company and IP to IP. SEGA is a Japanese company and allows a lot more use of Sonic than their other IPs.

[@IrocZIV]

I think there needs to be consideration for the size of the entity being affected by the use of the image/character/idea. As a property gets larger, society itself starts contributing to it. Holding ownership over these things does not help creativity, and in fact suffocates it. Society as a whole would likely benefit from more lax rules, especially if there were still protections for the "little guys"

[@Endarire]

@0:31 John Wick: Gaming Attourney at Law!

[@gabbyn978]

Germany has its own take on the topic. You may license creative work to others, but will never lose the authorship, eg if you are employed by a company, your work stays yours no matter what. I am fairly sure that Mrs Goldsmith would have been acknowledged as the creating artist by from the beginning, and received her proper share in the form of "Tantiemen" aka royalties.

[@goodfortunetoyou]

So you got me thinking, people should have copyright according to their contribution. For example, Let's consider Worhol's adaptation of Goldsmith's photo. 1. He removed several photographic elements, retaining the outline of prince (Goldsmith contribution) 2. He added in his own colors (Worhol contribution) 3. He composed several reproductions in a manner he found pleasing. (Worhol contribution) Thus, Goldsmith retained a certain amount of contribution to the resulting work by Worhol. However, Worhol's contribution lies in his adaptations and arrangement. Artificial intelligence is similar 1. an editing program is trained on an artist's contribution, removing elements in the process 2. These contributions are adapted through an editing process ( possible contribution by whoever determined how the model works) 3. The result is selected or composed into a larger work (contribution to the user) Thus the artist's stake in the result is proportional to the retained stake of their copyrighted work in the adapted work, relative to the overall contributions to the adapted work by all parties. This model would also work for things like Mods to games (the mod is a contribution by the author of the mod, to a contribution by the author of the game.), AMVs (the composition is a contribution to the author of the amv, the music and clips to make it, the contributions of their respective authors.), and other works composed of multiple works with disparate copyright owners. The only problem being that people with copyright may wish to charge any amount they deem desirable, and to prohibit reproduction when their contribution is used contrary to their wishes. However, I would think compensation and control over the IP should be separate issues from determining attribution.

[@DavidChipman]

I know you guys aren't lawyers, but I wonder what affect this would have on Fan Fiction.

[@Alverant]

AFAIK fan fiction isn't for profit. So no licensing fees apply and that's what the case was about. Things get really complicated when money gets involved.

[@DavidChipman]

Thanks @@Alverant , you make a good point. Hadn't thought about that.

[@ButchLeColosse]

If the fanfiction is good enough, they can always file off the serials and end up selling millions of copies.

[@dawnknightx]

@@AlverantNo, this isn’t really the case from a technical standpoint. Even if you make fan work and distribute it for free, you technically need to have the license for it. It’s just the backlash towards any company for actually enforcing their copyright on something as small as fan fictions would be so great, that these companies don’t enforce it and instead try to embrace it. But, purely from a technical standpoint, fan work gets to exist by the fear and generosity of the copyright holder.

[@arturoaguilar6002]

Not much. There is a reason why 50 Shades of Grey doesn't feature any characters from Twilight; despite that it started as Twilight fanfiction featuring the re-imagining of Bella, Edward and Jacob posted on the internet.

[@benjaminmatheny6683]

I think the fact they only used 1 of the portraits from Andy Warhol, rather than reproduce the entire art-piece hurt their case. Not sure if it would have gotten rules fair use if they had, but using just the one portrait made it absolutely clear it was a direct competitor to the original work. Like a game dev that licensed Unity/Unreal, built a game, and then later sold the engine with most of the game bits removed as their own proprietary engine.

[@Kaikaku]

6:56 Oh, that Twitter logo looks intriguing 😜

[@Roadhouse-h1v]

The ending was really *cool* Nice job *Extra Credit’s Team*

[@ruolbu]

That outro song is a nice touch

[@Michael_H_Nielsen]

lol that "X" picture was amazing :)

[@Shattered_Entertainment]

I love how fair use is literally FU 😅😂

[@tzisorey]

I know that one of the factors is market substitution - can the new work act as a substitute for the original - but i wonder if that should be able to work in both directions. Yes, the Walpole....sorry, Warhol piece can act as a substitute for the photo - but since its had a transformative use, can you argue that the photo can act as a substitute for the Warhol piece? I feel that should be a relevant consideration.

[@danielsantiagourtado3430]

Love these videos guys! Please do a video about fanfiction!🎉🎉🎉🎉🎉

[@bogjoore]

I haven't finished the video, so it may be expressed in it. One way of looking at how Prince print verdict would impact the games industry would be whether creating mods based on other mods is copyright infringement. This is a hypothetical that creating mods in and of themselves are entirely viewed as fair use. An example I can think of is someone using the mod "Gun Mario 64" to create another mod. If the weapons in the original mod are created by the mod-maker and they don't require Nintendo hardware or software to work, they could potentially be used seperately in another game or mods without breaking copyright law, but if they were to port the base game files from the GM64 mod and use that, then it would be infringement because they are not getting the original game code directly from Nintendo in a legally permitted way.

[@tristanwegner]

Copyright and Patent Law both make sense in the current society. 90+ years protection for copyright vs 15-20 years for patents make no sense though. Also learning from anything should always be allowed, no matter if human or AI system.

[@talongreenlee7704]

Copyright law in general is absolutely broken and in fact, unconstitutional. The constitution grants the authority to congress to pass legislation that protects copyrighted works quote “for a limited time”. Congress has so repeatedly passed extensions on copyright protections that make it clear their intention is to have copyright indefinitely, violating their constitutional authority. The original promise was 14 years of copyright protection and now it’s the lifetime of the author plus 70 years. That is in no way “for a limited time”.

[@amonoceros]

And it's still incredible that the Supreme Court of the late 1990s saw Eldred v. Ashcroft, and went, "Yep, death plus 70 year is both limited and furthers the progress of science and the arts". Though I know that Lessig often talked about how he feels as though he missed an opportunity to talk about the harm that this messed up copyright system causes. Since, while that probably shouldn't matter legally, it probably mattered to the justices, who didn't see much reason to go against congress. But no way is _this_ is what the founders meant when they put the clause in.

[@Kumimono]

Mickey Mouse Club theme intensifies.... (Under fair use, of course.)

[@GreyWolfLeaderTW]

Ah, but the problem with your Communist statement is that the Constitution's authority "for a limited time" does *NOT* mean "short-term period", but rather "a time period that has a definitive end point". And even then, there is a *STRONG* argument that it is capricious and arbitrary to limit copyright duration (Constitutional does not mean the same thing as moral), given creators reserve the right to will their intellectual property to their descendants like any other piece of property, as is the case with J.R.R. Tolkien passing his works to his son Christopher Tolkien, and then it passing to their family estate. Who are you to dictate as a third-party that a creation of theirs or their ancestors' is no longer theirs and they cannot protect it?

[@talongreenlee7704]

@@GreyWolfLeaderTW so “for a limited time” doesn’t actually mean “for a limited time” and it actually means “for an unlimited time”? That makes absolutely no sense. You’re outright lying and not even in a particularly clever manner. You’re just telling me to believe that 2+2=5 and expecting that I’ll buy that. Also, it’s not communist to say that you should have limited control over your works. I’m not saying that copyright needs to be abolished, I’m saying that it needs to have limits. The original idea was to have a compromise between creators and society, but the balance of that compromise has fallen completely to one side and the other is being entirely ignored.

[@SLZeroArrow]

Yes, Disney is the sole dictator of copyright, all of the copyright laws are under their control and not the main US government.@_peters6221

[@shaider1982]

This reminds me of the issues of the Battletech (early) and Robotech/Macross franchises.

[@newgirlde]

I agree with the court's decision. If the magazine cover had used the whole artwork rather than a single panel it would have been transformative enough.

[@newgirlde]

Clarification. It would have been transformative enough to not be comparative to Goldsmith's original work.

[@postapocalypticnewsradio]

PANR has tuned in.

[@emmacomstock9488]

Is it just me, or is the only time the characters have ever had fully fluid movement, is when human Matt shows up. I can't think of another instance.

[@TheCreepypro]

nice to hear how this is actually supposed to work

[@Kisai_Yuki]

Video game footage is very nuanced. Is it skill? Is it perspective? Is the player just skipping all the dialogue? Reacting to the dialogue? I feel that "LP" type footage is very borderline. If someone plays an entire game, start-to-end, commentary or not, that is transformative if the game isn't "on rails" (eg cutscene QTE's, pre-rendered footage, or pre-recorded FMV.) Nobody in their right mind is going to watch a LP over playing the original game unless: - It was platform exclusive (eg games on the PSP/Vita or GB/GBA/DS/DSLite, and also the Wii/WiiU) - Some gimmick of the platform makes in unviable to play the game yourself (eg VR game motion sickness, 3DS games "3D" effect inducing migranes, FPS games motion sickness) In many cases, a LP actually slots into one of these roles: - It's a second-screen evergreen video (eg an LP to play at the same time as playing the game, very helpful for learning techniques) - It's a "how to" video (minecraft builds, starfield ship builds, etc) - It's a speedrun "ghost" video - It's an archive of footage of the game at that version/platform, for a game that changes over time (such as the case of MMORPG and MMOFPS games) Commentary on game footage is very hard to do in real time, because you can only add a commentary if you have played it before. There is no way to have insight to a game you have not played unless you're the developer. Like considering how many games have basically been abandoned by their IP holders, or will never be re-licensed for re-release or remakes (like if you want to play a GhostBusters(TM) game, you better buy it while it's new, cause Sony has a track record of killing their licensed products quickly.) So sometimes watching someone play it, is the only way of even knowing it existed.

[@SabreWolf18]

I get hit by the youtube audio bot copyright on 80% of my videos and 99% of the time, the claim gets removed.

[@JRPKeller]

Anything that gives corporations more power than they already have is bad for anyone who isn't a corporation. Companies already have enough power to throw lawyers at innocent people until they are bankrupt; any ruling that favors them might as well be a death sentence for dozens of creative works.

[@spiderwithay6679]

If you remix a song, even with the original artist's permission, you should have to include the original artist in any profits made off the remix unless otherwise agreed upon. I'd also view a remix as separate from sampling which would be more like a collage in this metaphor and I do think should be considered transformative. Though apart from that, I do get annoyed at companies like Nintendo for squashing so many fan games and projects.

[@MrChocodemon]

@extracredits Could y'all explore the topic of sampling? Like in music you can sample a huge amount of someone elses song and it counts as fair use. In visual art, Warhol's art could seen as the same. Books have fanfiction and some even become bestsellers. Could/Should that be transferrable to games? Why is having Mario in my game not fair use, if I made the 3D model myself and I am not making a Mario(Game) clone?

[@principleshipcoleoid8095]

1:34 debatable. Well the buisiness would be crowdfunding based and reputation with skill would be more important than holding copyright

[@ghostel9253]

I don't think the court ruled properly here, becajsw the purpose of licensing the photo wasn't just to use a reference image of prince, it was to use a highly stylized image, especially one with significant cultural cache, which is a role not filled by the original

[@SharienGaming]

here is my take on the issue presented... warhol died almost 40 years ago... so the original work is even older than that... it should have been in the public domain ages ago.

[@lostbutfreesoul]

Should have paid both artists, not just to be sure but because it was correct. I can understand wanting B more then A, but B can only exist if you have A....

[@condemnedd684]

In all honesty, there should be an addendum to copyright law to govern AI works

[@SuperSmashDolls]

5:18 I do want to point out that mods were already ruled as infringing in Micro Star v. Form Gen where someone tried to sell a bunch of custom Duke Nukem levels and were obviously sued for it. I'm honestly surprised this even went up to SCOTUS - I thought it was already settled law that market substitute equals not fair use and that fair use is non-transitive. For an interesting consequence of what the latter means: in Perfect 10 v. Amazon (originally v. Google, it's complicated) it was ruled that Google having search links to websites with infringing photos on them is *still fair use*, even though those websites are absolutely guilty of copyright infringement. 6:34 My personal opinion on the whole "AI training" thing (which was my opinion before the SCOTUS ruling, but appears to be in line with what SCOTUS is thinking): training the model is fair use, using it to generate artwork that resembles *anything in its training set* is infringement. *That being said*, I can also see courts looking at the absolute flood of AI generated garbage art on artist spaces, and the publishers licking their chops about replacing all their writers and authors with chatbots and diffusion models, and saying "No thanks." It's far easier on artists to give them one big target to punch rather than making them step on bullet ants all day, and the AI companies *should* have started with public domain datasets if they were just doing 'research'. also copyright is a cancer upon creativity, we should give artists a union instead

[@Phoenix-cn5ql]

So, question, what if I use the whole story of a certain video game, styles, character and so on for a different story that I make on my own for example: let's say there is a popular horror video game and then I use the characters and everything in it to make a video about romance or action using the characters and story, and then I post the video online, what's going to happen, and am I allowed to do that?

[@mattkuhn6634]

Regarding AI, I believe that, currently, it is perfectly legal to use copyrighted works to train large language models and other forms of neural networks (such as image generating ones). What may be infringement is when the AI model produces an infringing work, but the way our system is set up each of those is adjudicated individually unless someone gets approval for a class lawsuit, and even then it would only be an issue for that one company. Furthermore, it's unclear WHO infringed - the person who wrote the prompt, the people who programmed the network, the people who gathered the training data, or the executives who approved that are all possible agents here. Given that, it's my opinion that the only reasonable solution to this problem is legislative. Congress needs to codify how, when, and to what extent one can used copyrighted works to train generative AI. Too bad the House majority is busy tearing itself apart in internecine strife right now to do anything.

[@vxicepickxv]

For even more confusion, how much work needs to be modified from an AI base to become copyright?

[@morganmedrano920]

I have Nebul and while I enjoyed it, I wanted features lile the ability to make a Playlist or continuously play videos from a given creator. Also you all should try and get more educational KZbin channels to join. Like the Gaming Historian or Hardware modders like Macho Nacho Productions.

[@esleynopemos3470]

I get very uneasy any time any kind of ruling gets made on copyright law, regardless of the specific case in question. Because such things are ruled on in courts, by people who study law, not art, it often seems to come down more to who can bring a bigger, better-paid team of lawyers to the table than who is actually in the right. I maintain that it is not right - in a moral, social ethics sense - that copyright law as it stands is concerned with who makes money rather than what can result in more meaningful cultural content. The dissonance between those two priorities is why fair use is leaned on so often by creators and also why it is not something explicitly spelled out in the law.

[@Mcrazeryt]

I liked the thumbnail how Mario has a hammer behind a woman

[@bob99774]

Without copyright big corporations couldn't lock stuff away and we would be in a better world

[@Lightmagician60]

here is a very niche segment of copywrite law i know about... Private Servers for those unaware, 3rd party unlicensed versions of FF11 and WoW are very common how is this legal you ask? well it can go either way, and it depends how the PS handles itself. 1) obviously the PS can't claim it owns anything and can't profit off it 2) the making of a "legal" PS means nothing was stolen or copied/Pirated. this is because of the EULA {End user license Agreement} it's that copy and pasted wall of text everyone agrees too without reading to play a game. and a part of it gives the user the right to own the game's files as long as the EULA isn't broken. the main way you break the EULA when you copy/redistribute the files. however, since WoW and FF11 have no charges before download, anyone can just download the "Client side" files 3) the "Server side" files is the make or break if a PS community even exists. while it is true that the "Server side" files are protected by copyright and only owned by the holders... it does nothing about someone making their own proxie of the "Server side" files... making 3rd party compatible programs isn't covered in Copyright, some argue backwards engineering code should be, but thats it's own can of worms. as such, as long as the community can make a functional proxie for the Server Side and redirect the Client side files to it... no pirating was broken, as the owners don't own the 3rd party programs used to do this

[@Bellarina-e4e]

1:41 Mario killimg goomas with a hammer

[@noxrequiem8117]

Goldsmith definitely deserved a profit promise for that photo. Photography is an art that takes a lot of training and dedication to get to different professional levels.

[@KenjiShiratsuki]

Fair Use only applies when its non-commercial. That means youre not publishing a book, or getting ad revenue from KZbin, or making it exclusive to Patreon or Nebula. It has to be something you DO NOT STAND TO PROFIT FROM. Fair Use should never have entered into this in the first place. I don't know what, it any, laws protected Andy Warhol with his creations, but Fair Use is pretty clear on this point I thought.

[@TK_Brainslug]

wow that got me a headache. I mean shouldn't the rights of the Prince picture belong to news week. I mean they were the one who hired Ms Goldsmith to take the photo

[@Kumimono]

Contract details, I'd assume. Did Newsweek buy that picture, or license the use.

[@chadjones1266]

Thanks again

[@capability-snob]

I've been wondering: if an American uses a work from a country that is a member of WIPO, do they not get fair use protection? As in, are they bound by the copyright laws in the country of the works origin? And vice-versa, do I have a measure of free use protection when drawing from a US work, even if there is no fair use concept in my country?

[@ICountFrom0]

RL zoey needs more treats!

[@kontentaidee]

Platforms like Nebula have existed in the past. They never lasted.

[@Endarire]

It seems like the court case was decided by whomever those in charge liked more that day.

[@shadowsonicsilver6]

The entire “Copy write promotes creativity” is such a massive lie when you remember the Astral Sea of Fan Work Heck, most of our work is just ripping off something that already existed. Spears and swords are just ripping off nature’s claws and teeth

[@allisonseamiller]

Great video. You should spin this off into it's own channel, since you switched to being a podcast channel. Like you did with ExtraHistory. You can make ExtraScripted or something. You made this decision once before with the History/Credits split, so you know better than anyone it's the right thing to do, it's the smart thing to do, for both yourselves and your viewers.

[@Jebbtube]

More often than not, courts will side with whoever has more money.

[@allenw794]

Aside from showing off fully animated, you (nice smooth animation btw) what's wrong with bean person you?

[@mattwoodard2535]

Fair number of visual references to VALVe in this one. sm

[@LostMekka]

yea that ai stuff will be very interesting. i have heard many arguments for and against it and it seems like courts could decide either way. it is also veeeery tricky, because while there are individuals that use that stuff to fuel their personal expression, there are also bog corporations that just plainly make loads of money from it. i support the first, but hate the latter...

[@GreyWolfLeaderTW]

It's not a question of ""quote-unquote" owning their work". Such a statement is the mindset of a slave owner. Assuming there are situations or circumstances in which a person can lose ownership of their work because an authority figure rationalizes it, basically means the wider population are a slave/serf at the mercy of that authority.

[@stephanreiken9912]

'Nuanced' Or mostly arbitrary.

[@steelmagnum]

I've always wondered how you get away with using your intro song. Does that count as fair use as well?

[@edgarromero3196]

ZERO PUNCTUATION MENTIONED WTF IS A SERIOUS REVIEW 🇬🇧☕🇦🇺🎩!!!!!

[@charanth182]

None of this maters if people can't access the legal system. Without access it's the side with the scariest lawyer talk.

[@sciverzero8197]

I think the the supreme court made a reasonable decision based on what fair use has been described as for many decades... But I think fair use is not broad enough nor well enough codified.

[@saxor96]

Considering this channel has been using a Mario 64 song as their main theme since the beginning...

[@macattack5863]

The warhaul decision feels flawed because who is the magazine supposed to pay to license the photo. Is material made under fair use still explicitly owned by the company you are "copying" could a company seize material made under fair use and use it any way they wanted. At that point why can't they turn around and limit the use of the material in any other fashion via any other actor including the the creator of the fair use content. Ie using a clip of a video that used fair use is not fair use if the new video wouldn't also fall under the same fair use standard. Even if the new video is made by the same channel.

[@felipenachmanowicz9393]

I think in THAT CASE they got it right. But it's a seriously case by case thing.

[@bentoth9555]

Aww IRL Zoey. I wanna give her scritches and belly rubs.

[@JaelinBezel]

What do you mean Prince died?!

[@tadhgwright4345]

I don't think that Orange Prince was transformative, but then I also *HATE* Andy Warhol and any artist who simply copies some other artist's work (like the original graphic artist who actually designed the Campbells soup can) and tries to claim it's artistic freedom.

[@NoFaceMage]

WALPOLE!!!

[@UnreasonableOpinions]

Fair use is notorious for armchair solicitors deciding what feels right to them and then reverse-engineering an interpretation of the law to support that, then getting strangely defensive about a legal interpretation they would have to know is weak.

[@DragoSonicMile]

So... a Sparta Remix isn't transformative enough?

[@ponyote]

This is a joke. So, you couldn't afford Trixie Mephistophles? Or even Devon? Valid.

[@neverendingparty2060]

I forgot they separated the channels. I was like 90k seems low for this Chanel

[@00Linares00]

IP laws are so inadequate to the current age I genuinely don't know if it would be best to start from scratch. Also, Supreme Court was right.

[@Psyga315]

Nah, just vaguely word what your gameplay mechanics are and then put a patent on it. Do that a couple of times and boom, creative sterility. Looking at you, WB and your horde of patents.