Software / Apps

CDAS Partners Briana C. Hill and Benjamin Jaffe Named Co-Chairs of the Entertainment and the Digital Media & Technology groups, respectively.

Briana Hill, Co-Head of the Beverly Hills office of Cowan DeBaets Abrahams & Sheppard LLP, joins Fred Bimbler and Simon Pulman in leading the firm’s Entertainment group, which includes televison (traditional to broadband), streaming, film, new media, talent, theatre and podcasting. The group assists clients with their entertainment projects through early development, the solicitation of investment, production and ultimate distribution, securing all necessary rights and negotiating agreements with top-tier talent.

Ben Jaffe joins Joshua Sessler in leading the Digital Media & Technology group that represents top digital talent, including game developers and distributors, digital agencies, production houses, broadband video networks, mobile app developers, podcasters and social media ventures. The group provides counsel to a wide range of social media, transmedia and mobile plays that are using emerging software and hardware technologies to create, develop and distribute content in new ways.

Fair Use in Gaming Content – FAQS For Creators

By Simon Pulman and Mikaela Gross

Fair use is one of the most important – and most misunderstood – concepts in the area of copyright law. It is an important concept for anyone who is using content owned by third parties – which includes anyone who livestreams gaming, creates “let’s play” videos or otherwise uses gaming assets and branding. Unfortunately, there is a lot of misinformation on the internet and thus creators are often unclear about their rights and responsibilities.

With that said, here are answers to some frequently asked questions for creators:

What is Fair Use?

Fair use is an exception to the general principle that unauthorized use of a copyrighted work is copyright infringement. Simply put, if a claim of copyright infringement is brought against a defendant, the “defendant” can try to demonstrate they made a fair use of the allegedly infringed work in order to prevail in the case.

Because fair use is a defense, only a court can say whether a particular use of copyrighted material is a “fair use.” However, experienced attorneys can provide an opinion, based on their evaluation of the use using the four-factor test (see below) and their knowledge of case law.

What are the Four Factors?

Courts look at four factors when making a fair use determination

  • the purpose and character of your use
  • the nature of the copyrighted work
  • the amount and substantiality of the portion taken, and
  • the effect of the use upon the potential market.

The application of these four factors is nuanced and often complicated, but in short, the use of a copyrighted work is not likely to be fair use if it is used for the same or a similar purpose for which it was originally intended or in advertising/marketing materials, uses a lot of the original work including its most important parts (what the courts have called “the heart of the work”), and/or is used in a manner that competes with the market for the original work. It is more likely to be fair use if the new use is “transformative” in that it comments on, critiques, or otherwise adds new meaning to the original work in some way, if only a small portion of the original work is used (i.e., only enough for the user to make their point), and if the original work is not being used to advertise or otherwise promote the new work or use. So, if a video talks about, for example, loot box mechanics or the historical treatment of race in gaming by using game clips as examples, commenting on and analyzing those clips, it is probably more likely from a legal perspective to be fair use than straight game footage.

Note, however, that there is no bright line amount of use that constitutes fair use. For example, you can never assume that “if you use less than 5%, that’s fair use” – courts have found using only a line or two of text or music to be infringing. If you are in doubt, you should speak to a lawyer.

Is Crediting Important?

It’s nice, and may be considered best practices or industry custom, but it’s generally not relevant for a legal determination of fair use.

Can’t I Use a Disclaimer?

In short, no. Those disclaimers that you see on YouTube stating “This is a fair use. No copyright infringement intended” are generally not legally relevant. There is a small chance that they could be helpful to you in determining the damages that you owe in the event that you are found to be infringing, however, because they may bear on whether your intent was “innocent” or “willful.”

What if I get a DMCA takedown notice? And if a website removes my video, do I have any recourse?

The DMCA notice and takedown process provides copyright owners with a way to request removal of their copyrighted work from a website or other internet service if they believe the use infringes their copyright. To benefit from the “safe harbor” from copyright infringement the DMCA provides ISPs, the website or platform must designate a registered agent to receive and process DMCA takedown notices.  DMCA notices must include certain specific information to comply with the law, and the registered agent of the ISP has the job of reviewing and determining whether to comply with the takedown request.

An ISP, such as a platform that hosts gaming content, does not have to comply with a DMCA notice if the notice does not fully comply with the legal requirements for a takedown notice. However, if an ISP does remove content following receipt of a DMCA notice, it must also promptly notify the party that posted the video. That party then can file a counternotice if it believes the content was wrongfully taken down, for instance if the use of the copyrighted work is likely to be a fair use.

Whether you’re a platform looking to benefit from the protections of the DMCA safe harbor, or a content creator looking to correct an improper takedown of your video content, you should consult with an attorney to make sure you’re in compliance with the DMCA’s requirements, and are not taking any actions that could potentially subject you to liability down the line.

Will I Be Sued For My Videogame Videos?

This is where we have good news. Because video game publishers largely view streaming and game-related media to be helpful to their business (under the theory that exposing more people to the game will increase sales), publishers rarely bring copyright infringement lawsuits against gamers. The exceptions where publishers do bring legal action tend to arise in instances where users create new installments of games (what lawyers and courts would call “derivative works”) without authorization, insert other infringing material into games via mods, create and sell software “cheats,” or do something that is offensive in addition to being infringing (e.g., adding explicit or hateful material). In recent years, major players such as Take-Two Interactive and Epic Games have actively policed these types of infringements of their copyrighted games.

This means that it isn’t always necessary to apply the fair use analysis outlined above. However, those creators who are seeking to make heavy commercial use of game assets (other than solely streaming/YouTube video revenue) should consult with an attorney before embarking on their plans to ensure compliance with copyright law.

One of the greatest challenges in defending claims of copyright infringement in the gaming space seems to be the wildcard of the judge’s expertise and understanding of the emerging fields of gaming and streaming. A key defense strategy will inevitably involve a careful framing of the discussion, including describing how the game works, what the purpose of the video is, explaining the meaning of common terms, and the context and communities in which these activities exist online.

Moreover, everyone should keep an eye on the risk factors listed below.

What Red Flags should I be aware of?

While the use of gaming footage in the form of livestreaming and “let’s play” type videos rarely results in a claim, there are a number of uses that creators should be particularly cautious about:

  • Licensed music: Any game video that features licensed popular music is more likely to cause an issue with the game creators and/or the owners of the rights in the music being used. Creators are generally fine with exhibiting those videos on YouTube (which has a blanket license with multiple labels), but uses of music in other contexts or on other sites could trigger a DMCA takedown or a copyright infringement claim.
  • Choreography: Any videos that use choreography or dance moves tend to pose a higher risk. There has been a spate of recent choreography-related claims alleging that games have made unauthorized use of protected dance moves, in particular against Epic Games for the use of short animations in its game Fortnite. Choreography is probably an overlooked area (versus other areas of copyright risk) and thus it is not a fait accompli that the game publisher will have secured the rights, so a video creator could be pulled into a potential lawsuit. Obviously dance-focused games are highest risk, but other games that include “celebration dances” are also a risk. While many recent choreography-related claims have failed because copyright law does not protect simple routines or common social dances, they are nonetheless costly to defend and could become increasingly risky as the law develops in this area.
  • Street Art and Tags:  Videos that include any kind of pre-existing graffiti or tags, or even original designs that closely resemble a pre-existing artwork, are similarly susceptible to a copyright infringement claim. Street artists have become notorious copyright infringement plaintiffs in recent years, and like choreography, game creators may not have cleared the rights to these works. The unauthorized use of graffiti may also raise trademark and right of publicity claims, depending on the context in which the tag is used.  
  • Athletes and other Identifiable Real People: Any gaming footage that includes the recognizable likenesses of real people (e.g., sports games) is susceptible to a claim. This is not actually a copyright issue, but rather falls under what lawyers call “right of publicity” (i.e., a person’s exclusive right to make commercial use of their name [or alias], likeness and other identifiable features). User-generated content that inserts a real person into a game via a mod could also trigger a claim of this type, particularly from celebrities who regularly monetize their names and likenesses.

Instagram Beats Attempt At Class Action Over Change In Terms Of Use

In Rodriguez v Instagram, CGC-13-532875 (San Francisco Sup. Ct. Feb 28, 2014), the Superior Court of California, County of San Francisco, rejected a proposed class action  lawsuit brought against Instagram LLC in connection with modifications to its original Terms of Use, instituted after the free photo-sharing platform was purchased by Facebook, Inc.  The lawsuit challenged Instagram’s ability to revise its Terms of Use to assert new rights over already-collected content. The ruling is a win for Instagram, and suggests that internet companies can take advantage of unilateral modification clauses in their existing terms of service contracts so long as they give users reasonable advance notice of material changes (and an opportunity to cancel their accounts before such changes take effect). Continue reading

Fourth Circuit Holds That Clicks May Transfer Copyright: Metropolitan Regional Information Systems, Inc., v. American Home Realty Network, Inc.

On July 19th, 2013, the Fourth Circuit held for the first time that copyright interests can be transferred electronically under Section 204 (a) of the Copyright Act. The Fourth Circuit’s decision adds to a growing body of law suggesting that an electronic “click” or “tap” can constitute a “signed writing” for purposes of transferring copyright interests. In an important ruling for the photo industry, the court also held that registrants of collective work databases are eligible for copyright protection with respect to the individual works contained within such database.
Continue reading

FTC Issues New Guideline Report for Online and Mobile Advertising Disclaimers

The Federal Trade Commission (“FTC”) issued new guidelines this week for media outlets, advertisers, brands, celebrity brand spokespeople and other parties advertising products online. The report, titled “.com Disclosures: How to Make Effective Disclosures in Digital Advertising,” builds upon the FTC’s previous report on digital marketing practices, issued in 2000. In addition to emphatically clarifying that the FTC’s jurisdiction applies as much to the “wide spectrum of online activities” as it does to offline advertisements, the report provides useful guidance regarding the placement of effective limitations and qualifications on advertising claims and the “clear and conspicuous” standard that governs required disclosures. Continue reading

Facebook Introduces Graph Search, Privacy Challenges Possible

Facebook recently unveiled “Graph Search,” an innovation designed to help users find and connect their friends by their interests, shared history, and past activity on the social networking platform. The new feature, which will begin beta testing soon, greatly expands the search capabilities of the Facebook platform in a move some commentators speculate may help it compete with Google in the search business area. The Wall Street Journal has a rundown of Graph Search’s functionality here. Continue reading

Small Screen, Bigger Picture

California Federal Judge Issues Circuit-Wide Injunction Against Broadcast Television Retransmitter; Rejects Aereokiller’s Reliance on Second Circuit Cablevision and Aereo Cases

On December 27, 2012, the U.S. District Court for the Central District of California issued a preliminary injunction against Aereokiller (formerly known as BarryDriller.com), a service founded by Alki David, someone not unfamiliar with television transmission and the law. Previously, in conjunction with rulings involving a similar technology at issue in WPIX v. ivi in New York, David’s prior television-over-the-Internet service known as FilmOn had been enjoined for making unauthorized public performances in violation of television networks’ copyright rights under Section 106(4) of the Copyright Act. This time around, David’s Aereokiller service was set up to create unique copies of broadcast television streams, one per user, so that the transmission of those streams would be a private – not public – performance to that particular user. Continue reading

Zappos’ Focus on Fashion, and Not on Terms of Use, Leads to Contractual Faux Pas

A recent case brought against the online retailer Zappos demonstrates the importance of thought-out drafting when constructing website policies. While it may be tempting to leave terms of use as an inconspicuous hyperlink rather than put them right up front, the consequences can be that those terms are not enforceable at all. Continue reading

Google Settles Book Scanning Lawsuit With Publisher Group

On October 4, 2012, Google reached a settlement in the Google Books case with the publisher plaintiffs, which include The McGraw-Hill Companies, Inc., Pearson Education, Inc., Penguin Group (USA) Inc., John Wiley & Sons, Inc., and Simon & Schuster, Inc. The Association of American Publishers (AAP) represented the publishers in the settlement, resolving its seven-year copyright dispute over Google’s controversial book digitization project in The McGraw-Hill Cos. Inc, et al. v. Google Inc., 05-cv-08881 (S.D.N.Y.). In 2004, Google launched the Google Books Project and commenced scanning thousands of books from major public and academic libraries pursuant to agreements with the libraries. Through its Google Books service, Google makes the scanned books searchable and publicly displays fragments of the books in response to search queries. In October 2005, five AAP member Publishers and the Authors Guild, on behalf of a class of authors, sued Google in the United States District Court for the Southern District of New York, claiming Google did not seek authorization from the owners of the works and accusing Google of massive copyright infringement. Google countered that its scanning and display of the books was fair use because it displayed only small “snippets” of each book, and the scanning was conducted for that purpose. Continue reading