All game devs have a favorite character; one they draw inspiration from. What better way to show props to those who have inspired you than by featuring your favorite character in your new game. A little nudge or nod to other creators to show your respect. But where does admiration cross over to copyright infringement? What is tribute and what is theft?
First, let’s talk about copyright basics. Copyright protects original, creative expressions of ideas.
Copyright protection does not cover things like facts, data, procedures, themes, or ideas. For example, no one can copyright the idea of a fair maiden princess who needs to be rescued, but someone can copyright a specific, original embodiment of a fair maiden princess who needs to be rescued, such as Princess Daphne from Dragon’s Lair or Princess Peach from the Mario games. So, your favorite character in a game likely qualifies for copyright protection.
Copyright ownership rights are effective as soon as the original expression is created, whether or not the work is registered. Meaning, that as soon as that character was developed in concept art or the game itself, the owner had a copyright interest.
What does copyright do? There are several exclusive rights that the copyright owner has. The most important of the rights for the purposes of this post are the right to make reproductions and the right to make derivative works. For the complete list of exclusive rights in copyright in the United States, check out 17 USC § 106.
These exclusive rights allow the owner to control how their works are used and portrayed. If a developer is reproducing a copyrighted work or making a derivative of the work, then the developer is infringing on the exclusive rights of the copyright holder. Reproduction means copy; that is pretty clear. A “derivative work” is a work based upon one or more preexisting works (for example, a sequel or DLC).
Costs of Copyright Infringement
Copyright infringement is very serious. If found to have violated a copyright owner’s rights, the owner is entitled to recover the actual damages suffered as a result of the infringement, and any profits of the infringer that are attributable to the infringement.
In some cases (not the topic of this post) the copyright owner may elect, instead of actual damages and profits, to receive statutory damages for all infringements involved in the action, with respect to any one work, of not less than $750 or more than $30,000. Where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages up to $150,000 per infringement.
The owner may also be able to recover attorney’s fees from the infringer.
All together, it could cost the infringer a significant amount of money.
What About Fair Use?
Wait, what about fair use? Can I just claim fair use and use the character anyway? Fair use is an exception to the exclusive rights of copyright owners. Fair use allows someone to use a copyrighted work for specific purposes. Courts weigh several factors when determining whether to apply fair use, including how the work is used (such as scholarly use vs. commercial use), the nature of the original work (more creative or less creative like forms), the amount of the work taken and whether the work taken is considered the “heart” of original work and the effect of the use on the potential market. While each case is different, using someone else’s specific character in a game is likely not fair use.
Even if fair use did apply, if the owner is upset, fair use is not a get-out-of-jail-free card. If the owner presses the issue and files suit, the alleged infringer has to defend the lawsuit and assert the fair use argument. Fair use is, in reality, more of a get-out-of-jail-pretty-expensively-if-the-court-agrees-with-the-assertion card.
Copyright owners may react differently. They may be touched that their work inspired new works, or excited that their work is being put in front of the public eye in a new way. But, they may want the infringer to pay up. So, if a developer is looking to use an exact character, it’s generally best to contact the owner of that work for permission and to get a license. Kingdom Hearts and Spiderman don’t just get made in the hopes that Disney will be cool about it.View all posts by this author