Would fair use extend to this--game that uses authors and characters

[cuthugas]

Hello,

I have an idea for a game. The game would utilize current authors and their creations as "characters" in the game, and be pitted against one another. Imagine, Stephen King going head to head with James Patterson! I realize this is copyrighted material. But, here is the caveat. What if I don't charge for the game, but instead make it free. The only income would be from advertising. Is this a loophole?

The alternative is using all material and authors prior to 1923, which is fine too, but I'd really love to use some of the cool authors and their creations like King, Lovecraft, and others.

I've seen other things that do this, but they are covered under the "parody" or satire aspect of free use.

The other thing I was considering, was to do it as an educational game to promote literacy, thus making it educational.

What are your thoughts?

[Robert T Nicholson]

General advice:  as soon as you start talking about "loopholes" in the law, you've probably got a bad idea.

Specific response(s):

Ad-supported content would still be considered commercial use, but even if your game was entirely free, it would still be a violation of copyright law.  The fact that you are not making a profit is not a defense against claims of copyright infringement.

Using material published prior to 1923 is safe, but not entirely safe.  For example, the character Sherlock Holmes can be used because he first appeared in published works prior to 1923.  But some character traits of the Holmes character first appeared in stories that were published after 1923, and those traits are still protected by copyright law.

Use as parody is generally not understood.  You can use copyrighted material to create a parody of that material.  For example, there was a book called "Bored of the Rings" which was a parody of "Lord of the Rings."  But I think it would be tough to argue that the use of each character in your game was intended as a parody of that particular character and literary work. 

Similarly, to claim fair use as educational material, you'd need to demonstrate that your use of the characters was integral to the educational purpose of your work, and that you made the minimum use of the characters that would serve the educational purpose.

In other words, fair use isn't a license to do whatever you want.  It's not a "loophole."  It's intended to allow fairly specific uses, and there are a number of tests that are applied when evaluating a fair use claim.  There are four basic tests, but court precedents and scholarly analysis have added many nuances.  Here is one explanation:

http://copyright.columbia.edu/copyright/fair-use/what-is-fair-use/

Finally - and this is an important point - even if your use is allowed under copyright law, that would not prevent you from being sued.  And defending a copyright infringement lawsuit can be very expensive.  Some publishers and authors are more likely to go after violators than others, but if you're using a large number of characters, it pretty likely that you'll piss off at least one of them.

[cuthugas]

Artchain,

Thanks for the response. I don't mean for it to sound like I'm trying to profit from someone else's work by any means, but I see what you're saying about loopholes. I didn't really think it would be feasible to use copyrighted material.

But, you bring up an interesting point about works prior to 1923. In the case of my game, their specific traits wouldn't necessarily come into play, but only aspects of them. Such as Sherlock Holmes. He might, for example, be able to "deduce" a players move, or some such thing. And, there may be a passage from the work itself to give context.

I really just want to create this to promote literacy among kids, but it will be a lot of work, and it wouldn't be bad to be compensated in some way. I would even (eventually) like to make games based on literary characters for schools to use. But, that would only be if I can succeed wit this game.

[MYK]

One other issue -- right of publicity.  If you are using someone's identity, in at least some if not all states, they can sue you over it.  California is particularly protective, from what I understand.

[Smokin]

Thanks for the response. I don't mean for it to sound like I'm trying to profit from someone else's work by any means, but I see what you're saying about loopholes. I didn't really think it would be feasible to use copyrighted material.

Its not impossible to create a game and use literary characters that may be protected. Im sure there are several scenarios that would make for a strong fair use defense and some that may not. Specifics matter, especially how much of protected material you use to promote the game or is dependant for the game. Subtle inclusions or minor instances in the game will lean more toward fair use.

There is certainly no shortage of characters that are in the public domain though.

[JimIvey]

One other issue -- right of publicity.  If you are using someone's identity, in at least some if not all states, they can sue you over it.  California is particularly protective, from what I understand.

I think there was a recent case involving EA's NCAA Football game and a number of former college players.  I think the players won.  You might look up that as an interesting case study with similar facts.

Regards.