The Creator's Legal Clinic: Advices and Explanations

MushroomCake28 · 2019-04-26T13:04:30+0900

Disclaimer: Knowledge and limits of responsibility First of all, let me say that all incoming advices and explanations are from me. My legal knowledge comes from currently being a Law student at a Canadian University with about one year left (at the time of writing, April 2019. I still got to take the Bar afterward), and I mostly focus on commercial law (when we have optional classes, I usually take all the commercially related ones since I want to practice in that area in the future). So not being a barred attorney yet, I can't give legal advice for a client, nor do I have the necessary legal insurances. However, what I can do (and will do here) is give explanations on general questions and give general advices on general situations. What I can't do is give specific advices for someone pertaining their particular project or business. On that note, feel free to ask anything that isn't specific to your project. I will answer to the best of my abilities and update the questions/answers list down below. Also, if there is any inaccurate information or error, please notice me and will correct it immediately. Note on the legal validity based on geographical jurisdictions Spoiler An important and legitimate questions arises from the simple fact that many of us live in different countries than others and therefore abide by different laws and answer to different authorities. This however has a limited impact here since the most important rule in commercial law is that "the contract is the rule of the parties" and that it usually takes precedent over laws. This principle is however also limited by 2 facts: Contracts can't go against public order laws (ex: you can't have a clause that makes someone a slave for all eternity since slavery is illegal in most countries), and public order laws are different in different countries. International laws and customs offer an international basis for certain things. Some customs are so uniform and used across the world that they constitute customs that can't be ignored by a contract, sometimes even explicitly (ex: the Force Majeure clause). As for the provenance of my legal formation, it will be mainly based on Canadian laws, more specifically federal laws (public sector) and Quebec's provincial laws (private sector). I want to add that Canadian laws have a common law tradition, so it highly resembles many things in the UK and other Commonwealth countries. In addition to that, Canadian laws are highly inspired by the United States legislation and jurisprudence, especially since the Canadian Supreme Court seems to almost be in love and always follow the US Supreme Court. So to sum it up, if you're from Canada, the US, or a Commonwealth country, chances are your laws are similar, or at least very similar, to what I will be describing. QUESTIONS: Everything on the commercial aspect of a project Spoiler Q: What makes a project commercial? (the principle of the commercial aspect) A: The general consensus in the usual business practices is that the moment you gain money, directly (ex: sell your game for a set price) or indirectly (ex: receive money from the site known for donations, banned from this forum, known as Pa-treon, crowdfunding, adds), it makes your project commercial. However, this definition is a general definition and it can be redefined in a contract by the consensual agreement of both parties. For more info, check out the legal definition in the US law, and see the definition proposed by Creative Commons: Definition: "The term “used for commercial purposes” means the carriage of persons or property for any fare, fee, rate, charge or other consideration, or directly or indirectly in connection with any business, or other undertaking intended for profit." (18 US Code Section 31) (https://www.law.cornell.edu/uscode/text/18/31). From Creative Commons (to give an idea on international customs): "The definition of commercial use is broad, covering more than just obvious 'profit-making' uses. In practise, the term is equivalent to income-generating use of any kind, whether direct or indirect." (https://www.thehelpful.com/creativecommons/what-is-commercial-use.html) Q: If my project doesn't make money, is it still considered commercial? A: It can still be considered commercial. Remember, the principle to evaluate if your project is commercial is to ask yourself if your project makes money directly or indirectly. The criteria isn't if your project makes a profit, it's either it generates money or not. Do not forget that profit = money generated - money spent. The money spent is not relevant to the commercial attribute of your project. Q: If all the money I receive is used to finance the project, by for example buying assets, and that I also make no money from my project, can it be considered non-commercial? A: No. How you spend your money is irrelevant to evaluating the commercial aspect, or lack of it, of your project. The question isn't how the money is spent, it is if there is…

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Started by MushroomCake28 Apr 26, 2019, 04:04 AM 188 posts Page 4 of 10 View original ↗

Elissiaro

#61 Mar 30, 2020, 02:49 AM Source

MushroomCake28 said:
@Elissiaro What do you mean when you say that you're separating the sprite into little bits? Any edits to the RTP must obey to the RTP's license, meaning it has to be used in an RPG Maker Engine.

I'm not saying an edit, but making a sprite from scratch. With RTP as reference. Maybe even just the face image or promotional art or something.

And by little bits I mean, like... Okay say I'm making Harold.
So I make the base body, then the shirt, and pants, armor, tabard, hair, and so on.
But I save all the stuff separately, and reuse it to save time on another completely original character, who has like, the cloak and pants or Harolds bangs or whatever.

(Like the new Harold sprite would definitely only be able to be used with rpgm products... I'm pretty sure. It's reusing it to make other stuff I'm wondering about.)
MushroomCake28

#62 Mar 30, 2020, 03:58 AM Source

@Elissiaro Ahh, now you're talking about the biggest gray area of intellectual property that no one can really answer. So in theory, variations, improvements, and edits are a violation of copyright if you don't have the permission of the original author. However, inspiration is not a violation. Now, the real question is what is the difference between inspiration and variation/edit/reference, and there is no clear answer. It always depends on the situation and it's a case by case thing.
Elissiaro

#63 Mar 30, 2020, 02:30 PM Source

MushroomCake28 said:
@Elissiaro Ahh, now you're talking about the biggest gray area of intellectual property that no one can really answer. So in theory, variations, improvements, and edits are a violation of copyright if you don't have the permission of the original author. However, inspiration is not a violation. Now, the real question is what is the difference between inspiration and variation/edit/reference, and there is no clear answer. It always depends on the situation and it's a case by case thing.

Right... I'll probably wait to make RTP based sprites then. Until I have a much bigger hoard of original sprites.
So I don't get tempted to reuse the parts, just in case.
Grey areas are too scary for me when it comes to the law.
Thanks for the help!
ZeroBreak

#64 May 29, 2020, 01:07 AM Source

Speaking of gray areas, I have a sort of question regarding material written for a specific project upon which one decided to prototype on something contemporary and well-known yet not necessarily out of protection. I haven't had a question about things on the subject since you answered my last one but I was wondering how to accommodate a prototype of a soundtrack addition for which you wrote your own lyrics yet the base on which the song is set would otherwise be in question for the final product.

In this case I came up with the wild idea to prototype a closing rap track for my project, and in my typical style chose something that fits my description in this matter (and this time it's from Superfreak which for obvious reasons has also prompted the the inclusion of a "hammer time" joke). The question here relates to the process of going from prototype to final product in terms of the difference between finding an equivalent to your test beat or validating against "fair use" (and whether or not that's even in play).
MushroomCake28

#65 May 29, 2020, 02:18 AM Source

BreakerZero said:
Speaking of gray areas, I have a sort of question regarding material written for a specific project upon which one decided to prototype on something contemporary and well-known yet not necessarily out of protection.
Just be sure, but "prototype on something", do you refer to the process of taking a soundtrack and singing on top of it, or even sampling some parts of existing song?
ZeroBreak

#66 May 29, 2020, 04:44 AM Source

Not the whole thing of course, just the required parts and singing over it. I guess the gray area here is when you have a bit of both, so I decided that my baseline would have to be centered on how the YouTube analysis system would react to my track (but without using the branded account for obvious reasons).

I started with just a small, 30 second portion of the track, and followed up with a full length version. Oddly, on the 30sec. version the beat didn't trip the content detection system immediately, though after awhile it did ultimately show a claim advisory. However, the reaction to my full-length version was a rather immediate one.

So in the end, I decided it was best to delete both of my test clips and will be starting over on my end at some point. (And for obvious reasons, they were both set as unlisted so it's not like anyone else would have seen 'em anyway.)
MushroomCake28

#67 May 29, 2020, 04:59 AM Source

@BreakerZero Sampling is generally considered copyright infringement if you do not have the composer's permission. Obviously, the same logic applies if you take the full soundtrack and remove the voices and lyrics. The soundtrack is still protected. Fair use usually doesn't apply, but you can use the samples if you modify them to make obtain something that is inspiration rather than a variation. The line between variation and inspiration is something determined case by case.

Also, the Youtube algorithm is not a determining factor to identify copyright.
ZeroBreak

#68 May 29, 2020, 05:43 AM Source

MushroomCake28 said:
@BreakerZero Sampling is generally considered copyright infringement if you do not have the composer's permission. Obviously, the same logic applies if you take the full soundtrack and remove the voices and lyrics. The soundtrack is still protected. Fair use usually doesn't apply, but you can use the samples if you modify them to make obtain something that is inspiration rather than a variation. The line between variation and inspiration is something determined case by case.

Also, the Youtube algorithm is not a determining factor to identify copyright.

Again, I didn't use a branded account for testing out the possibility of issues which is what the YouTube analysis was intended to verify. It didn't necessarily have to be a part of the final decision, though as a precaution (and due to the presence of claim advisory notices) I decided to simply back down and not risk my project, sanity or anything else for that matter.

And to be fair (and for the sake of disclosure and clarification) I only stuck with the main beat for the most part, except for the chorus which uses part of the segment with the backup voices followed by the main hook, which is repeated twice per function call (or four times in the case of the track's ending) although some variation in this structure does exist (which just might have been enough to set off the alarm system). I may still end up posting the snippets to my cloud storage for archival and demonstration purposes, but otherwise I'm probably going to end up having to scrub this plan as opposed to facing an undue exposure to such extremes in terms of creative risk.

As a side note, I have done similar things before with this strategy in terms of testing a set piece (and one such case was even built off Peter Gunn!!!) Obviously once the events and writing had been completed, I would switch things over to use the final track for the given situation... and such would probably also be the case in this matter.

EDIT: It turns out that I kept the 30-second version after all, since it it didn't end up having a content claim like I thought it did. I'll go ahead and post it so you can judge for yourself:

EDIT 2: And here are the lyrics (which are past the spoiler, since it relates to story material)

Sample Verse Lyrics
"Sacred tune
Of the advent flute
Break the mold
Now we bust through

Smash
Bash
Mix and match
Keep your slither
off my stash

You’re going down
Then we gone out
Time don’t wait
For a twist and shout

The spell is broke
The truth is known
Your twisted curse
has lost its tone

The gears of fate?
It’s not too late.
Don’t waste time
to set things straight

Advent’s call
must run its course.
And now we rise
upon its force"

And the chorus hook is the whispered phrase:
"come forth and rise upon the advent"

EDIT 3: I decided that I would change the format of the lyrics to a four-line structure instead of all at once, just so it's not as messy on smartphone displays.

EDIT 4: Apparently the video embed doesn't work properly on mobile devices (basically it's something about a restricted mode which I can't quite figure out) so if that's an issue for you then try it with a direct link.
ZeroBreak

#69 Jul 22, 2020, 10:04 PM Source

I'm also not sure if this is worth a follow-up post or not, however perhaps the ultimate grey area that I can think of is one that involves internet memes (things like Benny Hill music during a chase, a "Rickroll gag" delivered on cue, or even those g**damned soda bombs!*) I'm not sure if I ever discussed this before, however I do believe that it is another one of those do or don't provisions that you should probably keep in mind if you find yourself pushing the limits of a particular use case.

===============

* For the unaware, this refers to certain Coke or Pepsi beverages with a Mentos mint thrown into the mix.
Memerto

#70 Aug 23, 2020, 12:10 PM Source

Hi! I'm here because I have a question related to the use of dlc assets license and it seems the very best place to ask for it.

Now MZ has been released, there's some new juicy dlc packs out there too and it seems the most of them can be used in MV engine. You can read at the EULA of those dlc packs the following:

III. About Resources in this Materials Add-on Pack
The resources in this [Material Add-on Pack name] are created for use in game development only, using RPG Maker MZ. Alternatively, you may also use these materials with other RPG Makers, as long as you have a valid and legal license for both engines. You may not use these materials in other game-development software.

And also this, below, in another section:

2. The resources included in the Product (the "Resource Pack") may be used with RPG Maker MV. Alternatively, you may use the Product with any other entry in the RPG Maker series that retains the Company's rights. User can create, distribute, or sell their original game by using the Resource Pack only if they meet all the following conditions:

The question is: if I have a legitimate license for RPG Maker MV engine and buy some dlc assets that are intended for RPG Maker MZ (for example, MZ Cover Art Characters Pack, Dark Fantasy Resource Pack or the RPG Maker MZ- MV Trinity Resource Pack), can I use those resources with the MV engine if I don't have a legitimate license for the MZ engine?

Thx for all!!
MushroomCake28

#71 Aug 23, 2020, 06:42 PM Source

@Memerto It depends on the DLC. Some of them can be used in any RPG Maker engine you own without additional restrictions, some of them you need to own the engine they are from/made for plus the engine you are using. I have not read the EULA of all the DLCs for RPG Maker MZ, so I can't tell you for sure, but if the two paragraphs you quote are in the license, you need to own both MZ and MV to use them in MV. It does say:

Alternatively, you may also use these materials with other RPG Makers, as long as you have a valid and legal license for both engines.
So the resources can be seen as extensions of the RTP, which do require you to own the engine they are from and the engine you are using them in.
Memerto

#72 Aug 23, 2020, 07:39 PM Source

Thx you very much!!
r66r

#73 Aug 24, 2020, 05:25 PM Source

Hi! Seeing some activities in this thread means that I'm not too late to share some thoughts. :ehappy:

As a complementary subject of the section "Team Projects", I think it could be useful to specify the rules with projects shared with VCS tools like GitLab, GitHub and their friends. As an adept of Open Source solutions and programming, I tend to always set "public" my projects, even if I'm the only one contributing. As well I would do with my RM game projects. But, as mentioned in the EULA of the main soft and in the majority of the DLC, distributing the materials are not allowed. That means that if I work in a team group, or simply use VCS tools to sync my projects between several PC (home, work, portable), I have to make my Git projects/repositories private!

Regarding the section "Copyrights and Patents", may I have a question: do you know if it exists a licence similar to the Open Game Licence that can be applied for RM games? I like the fact that with a similar licence we could distinguish the final product "game" as an all (universe, story, game mechanic, ...) and the materials used to build it (tilesets, sounds, graphics, ...). The fact is that most Open Source licences (CC, GNU, ...) are only considering the final product, and so restrict the materials used to follow the same rules. Therefore, to create an Open Source RM game, the only solution is to create myself all the materials, or use only DLC materials that are under one of these licences. Correct?

In the same subject, don't you think useful to add two files systematically in the game package: one for the credits (as the complement of the final credits of the game that are always showing at the end), and one for the terms of use of the game (to specify for whom: kids, adults, ...; for what: education, fun, ....; if can we remix/extend the game with prequels, sequels, ...; what we can't do with it: promote hatred, politics, ...) ?

Thanks for your feedback.
MushroomCake28

#74 Aug 24, 2020, 08:55 PM Source

r66r said:
egarding the section "Copyrights and Patents", may I have a question: do you know if it exists a licence similar to the Open Game Licence that can be applied for RM games? I like the fact that with a similar licence we could distinguish the final product "game" as an all (universe, story, game mechanic, ...) and the materials used to build it (tilesets, sounds, graphics, ...).
I don't know one on the top of my head, but you really are free to create any terms of use for your projects, as long as you follow the terms of your resources of course. You can split the license in two for the assets (not free and not usable) and your story and universe (free to use). This is very possible.

r66r said:
Therefore, to create an Open Source RM game, the only solution is to create myself all the materials, or use only DLC materials that are under one of these licences. Correct?
Yes. All the RTP assets are copyrighted, so if you really want a completely open source game, you need to replace all those assets by open source assets.

r66r said:
In the same subject, don't you think useful to add two files systematically in the game package
I don't quite understand what you are trying to achieve with your particular example. I do know that having twice the same file in the project can be a workaround for certain licenses. For instance, some licenses prohibits the use of encryption of assets, while other licenses prohibits the distribution of the game with the asset if the asset is not encrypted. The solution to that is to encrypt the game, and add a second folder with a second copy of all the assets that prohibit encryption (non-encrypted this time of course).
r66r

#75 Aug 24, 2020, 10:12 PM Source

MushroomCake28 said:
I don't quite understand what you are trying to achieve with your particular example.

Sorry, I realize that I wasn't very clear, indeed. In fact, I was just proposing to add two files of type CREDITS.TXT and TERMSOFUSE.TXT in the deployed package in order to inform users of the game. But I realize now that it may be more judicious to put links in the game to web pages that present this information. Because in the end, who is really going to read these files in the game package (especially if the game is online).

In any case, your answers are very interesting. I will think about it. Thank you very much.
ZeroBreak

#76 Sep 2, 2020, 02:06 PM Source

Probably another dumb question, but does the law even give a damn if one decides to get creative with the legal documentation? For example, if you decide that for the purpose of the game project that you intend to spice up the otherwise-boring part involving the use requirements or license information (the one part where people skip ahead way too much) and use something more engaging and "tongue up your cheek" compared to your standard legal agreement, and yet is still within the law.
MushroomCake28

#77 Sep 2, 2020, 08:28 PM Source

BreakerZero said:
Probably another dumb question, but does the law even give a damn if one decides to get creative with the legal documentation? For example, if you decide that for the purpose of the game project that you intend to spice up the otherwise-boring part involving the use requirements or license information (the one part where people skip ahead way too much) and use something more engaging and "tongue up your cheek" compared to your standard legal agreement, and yet is still within the law.
Yeah you can do that without any issue, as long as the fundamental properties of the contractual agreement are there: lawful purpose, mutual agreement, consideration, and competent parties. As long as you fulfill those requirements, you can deliver the contract/agreement/license in any way you want in this case. However it must still be delivered it in a reasonable format, meaning it shouldn't hinder the other party's ability to read the terms and access it (like if you make a mini-game with the license in it and the player can't return and play the mini-game again), or make use of the object of the contract (I don't have a video game example, but a real life example would be paying a $100 product with only small change, which isn't allow depending on where you live).
Kupotepo

#78 Sep 11, 2020, 06:49 PM Source

Can use Sakan Tileset Builder Resources for MZ, right? I owned the legal licenses of MV, MZ, and Sakan. From what I understand I can distribute the resource I am editing from RTP and Sakan resources. Not for the commercially of course. Thank you for helping me reading this wall of legal texts. :kaohi:

EULA
TERMS AND CONDITIONS FOR COPYING, DISTRIBUTION AND MODIFICATION

0. This License Agreement applies to any software library or other program which contains a notice placed by the copyright holder or other authorized party saying it may be distributed under the terms of this Lesser General Public License (also called "this License"). Each licensee is addressed as "you".

A "library" means a collection of software functions and/or data prepared so as to be conveniently linked with application programs (which use some of those functions and data) to form executables.

The "Library", below, refers to any such software library or work which has been distributed under these terms. A "work based on the Library" means either the Library or any derivative work under copyright law: that is to say, a work containing the Library or a portion of it, either verbatim or with modifications and/or translated straightforwardly into another language. (Hereinafter, translation is included without limitation in the term "modification".)

"Source code" for a work means the preferred form of the work for making modifications to it. For a library, complete source code means all the source code for all modules it contains, plus any associated interface definition files, plus the scripts used to control compilation and installation of the library.

Activities other than copying, distribution and modification are not covered by this License; they are outside its scope. The act of running a program using the Library is not restricted, and output from such a program is covered only if its contents constitute a work based on the Library (independent of the use of the Library in a tool for writing it). Whether that is true depends on what the Library does and what the program that uses the Library does.

1. You may copy and distribute verbatim copies of the Library's complete source code as you receive it, in any medium, provided that you conspicuously and appropriately publish on each copy an appropriate copyright notice and disclaimer of warranty; keep intact all the notices that refer to this License and to the absence of any warranty; and distribute a copy of this License along with the Library.

You may charge a fee for the physical act of transferring a copy, and you may at your option offer warranty protection in exchange for a fee.

2. You may modify your copy or copies of the Library or any portion of it, thus forming a work based on the Library, and copy and distribute such modifications or work under the terms of Section 1 above, provided that you also meet all of these conditions:

a) The modified work must itself be a software library.
b) You must cause the files modified to carry prominent notices stating that you changed the files and the date of any change.
c) You must cause the whole of the work to be licensed at no charge to all third parties under the terms of this License.
d) If a facility in the modified Library refers to a function or a table of data to be supplied by an application program that uses the facility, other than as an argument passed when the facility is invoked, then you must make a good faith effort to ensure that, in the event an application does not supply such function or table, the facility still operates, and performs whatever part of its purpose remains meaningful.

GNU Lesser General Public License - Wikipedia
MushroomCake28

#79 Sep 11, 2020, 08:39 PM Source

@Kupotepo You only linked to the LGPL license, which regulates the distribution of the software not the assets. I never used the SAKAN tool so I don't know how it works and what its license for assets is. My guess is that you can use assets in MZ if you own both MZ and MV, but you might want to ask someone who knows a bit more than me when it comes to RPG Maker DLCs, like @Archeia
Kupotepo

#80 Sep 11, 2020, 08:46 PM Source

@MushroomCake28, I do not see the license for the assets inside the Sakan parts folder and thank you for helping clarify the wordings. I will have to summon @Archeia, again. Thank you for helping anyway.