Hello everyone,
Sorry if this has been covered but the search feature only shows me 3 post results.
I am working on a new web series and our characters play a board game in one of the scripts. The game is discussed specifically and then they play while the story continues.
One of my producer friends said this may be covered with fair use, since the game isn't being portrayed in a derogatory fashion, but our PM who has worked in advertising says it is not. We've reached out to the game developer, but we shoot on Thursday and still haven't received a response.
There are so many gameplay and review YouTube channels out there, I find it hard to believe all of them got approval from the game developers beforehand, especially the smaller ones that are still being monetized. I'm of the belief that we shoot and ask forgiveness/deal with consequences after the fact, but I'd love to hear others' opinions.
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Here's the definition for "fair use": (in US copyright law) the doctrine that brief excerpts of copyright material may, under certain circumstances, be quoted verbatim for purposes such as criticism, news reporting, teaching, and research, without the need for permission from or payment to the copyright holder.
So... any gameplay review and critique videos are indeed within "fair use." I don't have any context here... but your use sounds like it may fall outside of this definition. Is it a narrative? Not commentary? I have a background in advertising as well, and if you are showing logos/brands on film you may be breaking trademark protections too. Another possible issue could be that the owner of the trademark or company may not wish to "appear" to be endorsing the project. Anyway, I'd say do research, do your due diligence. Talk to a lawyer. Continue to reach out to the property owner. Perhaps they will give you written permission. Or maybe consider making up a fictitious game for your purposes. ;)
Beth is correct, this does not sound like fair use is applicable in this instance. I've done TV and Film for a very long time and if you're going to feature this game, you must get it cleared. It's less about the game than it is the Art. All art must be cleared and permission granted for use on camera. Failure to get the art cleared can result in the copyright owner getting an injunction against you to cease and desist. Which means you will have to pull down your project if pressed. When in doubt, it's best to create your own game and components. This goes for any labels, products or art you're going to feature.
Thanks Beth and David. That's what I thought, although I'm still curious how so many people can get away with using the games. I'm guessing game designers probably see it but don't mind the free press.
We've decided to postpone to give ourselves more time to hear back from people. For many of them, it's been a game of tag in trying to find out who actually has the authority to give us permission.
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Sandrene,
I would imagine most filmmakers who use copyrighted art and materials without permission are not worried about it because they figure they will never be called on it and even if they are, and their project is pulled off YouTube or wherever, they won't lose any money. And yes, there is also the chance the owners don't mind having their product used and advertised. But then again, they might.
If you are risking an investment and don't want to be blindsided by a possible injunction, however unlikely, you're doing the right thing by seeking permission from from the rights holder. And if this is something you intend to sell, you are legally obligated in the contracts you will have to sign to provide the written contracts allowing you to use the material your including. If you sign that contract or click that box on YouTube without actually having actual permission you are now committing fraud in addition to copyright infringement.
Sandrene, I would suggest you create your own board game that is a knock-off of the game you want to use. Kind of like what Asylum does with their movies. If you change just a few details, you can get away with putting it in your film without needing permission. Kind of a sketchy way to go about it, but it works and then you can resume production on your film and get it done and put it out there to see if it’s even any good in the first place. Hoping for the best for you!