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By
J. Dianne Brinson and
Mark F. Radcliffe
Gamasutra
September 5, 1997
Excerpted
from the Intellectual Property Law Primer for Multimedia and
Web Game Developers by J. Dianne Brinson and Mark F. Radcliffe.
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 Features
Rights
of Publicity, Libel and Other Laws
In addition
to the intellectual property laws discussed above, you must also be familiar
with several other areas of law that deal with the right of the individual
to control his image and reputation.
The right of publicity gives the individual the right to control the use
of his name, face, image or voice for commercial purposes. For example,
Ford's advertising agency tried to persuade Bette Midler to sing during
a Ford television commercial. She refused. They hired her backup singer.
The performance of the backup singer was so similar to Bette Midler that
viewers thought Bette Midler was singing. On the basis of that confusion,
she sued and won $400,000 in damages.
Libel and slander protect an individual against the dissemination of falsehoods
about that individual. To be actionable, the falsehood must injure his
or her reputation or subject them to hatred, contempt or ridicule. The
individual can obtain monetary losses as well as damages for mental anguish.
If you intend to use pre-existing material from television or film, you
may also have to deal with the rights of members of the entertainment
unions to get "reuse" fees. These unions include the Writers Guild, the
Directors Guild, the Screen Actors Guild, American Federation of Musicians,
and the American Federation of Television and Radio Artists. Under the
union agreements with the film and television studios, members of these
unions and guilds who worked on a film or television program have a right
to payment if the work is reused. This topic is discussed in more detail
in our book. Although you as the game developer are not signatory to these
agreements and may not be directly liable for these payments, the license
from the film and television studio will generally make you responsible
for paying them. These payments are generally modest. However, if you
are using many clips these payments can become quite expensive.
If you use professional actors, directors, or writers in developing your
game, you will also need to deal with these unions. Most of the unions
have very complex contracts developed specifically for their traditional
film and television work. Both SAG and AFTRA have developed a special
contract for multimedia projects. You should be aware that if you use
professional talent, you should be prepared for the additional complexity
arising out of these union agreements.
HYPOTHETICAL GAME CD-ROM AND WEBSITE
This section will apply the legal rules just discussed to the creation
and distribution of a new game based on a retrospective of the Battle
of the Bulge including both history and game play. The work is being created
by a new company, Panzer Productions. Its intended market is individuals.
It will be distributed on a CD-ROM and as a website. The game, in addition
to "story" text created by Panzer Productions and video footage which
it shot at the front, will consist of the following elements:
- Magazine
articles about the generals and excepts from various books about the
battle.
- Still
photographs.
- Excerpts
from period motion pictures.
- Music,
including some of the hit songs from the era.
A. Text
Works.
From a legal point of view, the "story" text created by Panzer Productions
is treated differently from the magazine articles and book excerpts. As
the creator of the new text, Panzer Productions will probably own the
copyright in the text, either through the work-for-hire doctrine or assignments.
For the magazine articles and book excerpts, however, Panzer Productions
is most likely not the copyright owner. Panzer Productions must go to
the owners of the copyrights in the articles and books to get permission
to use the articles and book excerpts.
B. Photographs.
Copyrights in photographs are initially owned by the photographer, although
they may either be assigned to another party or transferred to the photographer's
employer under the work-for-hire doctrine. The determination of who owns
the appropriate rights in the photograph can be very difficult and time
consuming because of fragmentation in this industry. For example, the
fact that a photograph appeared in Time Magazine does not necessarily
mean that the Time owns the copyright in the photograph. Time may only
have a license to use it once in its magazine. Common limitations in the
licensing of photographs include the color of reproduction, the medium
(i.e. newspapers, magazines, etc.), and attribution as well as those relating
to numbers of copies.
The rights required for interactive and web games would be quite different
from those which are normally granted to use photographs. For example,
the photograph may appear several times throughout the work and the number
of its appearances could be controlled by the viewer. Such flexibility
is quite different from the rights traditionally granted in the photography
industry.
C. Film and Video.
Once again, Panzer Productions must distinguish between film or video
which it has created (the footage which it shot at the battlefield) and
film or video owned by third parties (the excerpts from the motion pictures).
As to the material it created, the battlefield footage, if the legal issues
are properly structured, Panzer Productions owns the copyright. The "authors"
of a videotape may include the actors, directors, scriptwriters, music
composers and the cameramen. To avoid the problems of joint ownership
of copyright, Panzer Productions should obtain the appropriate agreements
from the individuals involved in creating its videotapes. The use of feature
films in games can be particularly complex and expensive and generally
requires multiple permissions such as clearing the music used in the videoclip,
paying reuse fees to the entertainment unions such as SAG and Directors
Guild. Feature films are frequently based on a novel whose use is licensed
to the studio. The film may also use music developed by a third party.
Consequently, the owner of the copyright in the film may not have the
necessary rights to the music or the underlying novel to permit their
use in the multimedia work. Panzer Productions may also have to obtain
rights of publicity releases from the individual actors depending on their
contract with the studio.
D. Music.
To use music in the new game, Panzer Productions must get permission from
the owners of the copyrights in the songs. Musical composition copyrights
are usually owned by music publishers.
If Panzer Productions wants to use excerpts of existing recordings of
music - from the recorded sound tracks of the winning films, for example
- it must get permission from owners of the copyrights in those sound
recordings, in addition to getting permission from the song copyright
owners. A sound recording copyright covers the expression added by the
record developer in creating the recording - the way the song is sung
or played, the arrangement, the mixing, and so on. Sound recording copyrights
are generally owned by record companies.
If Panzer Productions will be recording its own version of each song,
this second level of permission - permission to use an excerpt from a
copyrighted sound recording - is inapplicable.
Rights in music are quite complicated. The rights which Panzer Productions
must consider obtaining are described below:
1.
Mechanical rights. Mechanical rights are the basic right to use a musical
composition. They do not include the right to publicly perform the music
(see below). A mechanical license also does not permit the use of the
music with still or moving images. Such use requires a "synchronization"
license (see below). Although copyright law provides a compulsory license
for mechanical rights, most licensees prefer to obtain these rights commercially
through the Harry Fox Agency or other similar agencies. This preference
is based on the very onerous payment and accounting requirements imposed
by the Copyright Act for "compulsory" licenses.
2. Synchronization license. If the music is to be synchronized
with still or moving images on a screen, the licensee must obtain a "synchronization"
license. Although these rights may also be handled by the Harry Fox Agency,
in some cases Panzer Productions may need to contact the musical publisher
directly.
3. Public performance rights. Panzer Productions will probably
also need a license for public performance if its game will be shown to
students and other audiences. Such a showing would be considered a public
performance. A performance is considered public if it is "open to the
public" or at any place where a substantial number of persons outside
of the "normal circle of family and social acquaintances" gather. Most
music publishers permit either ASCAP or BMI to license their public performance
rights (Harry Fox Agency does not handle the public performance right).
4. Right to a particular performance or recording. As described
above, if Panzer Productions wants to use an excerpt from a particular
recording of a song, it must get permission from the owner of the sound
recording copyright. The licenses described in 1 through 3 are limited
solely to the right to use the musical composition. Thus, unless Panzer
Productions is prepared to have new artists record the music, it must
negotiate with the holder of the rights to the particular recording (a
record company, most likely).
SPECIAL
WEBSITE ISSUES
The use of these materials on a website poses a number of special issues.
First, the licenses of third party rights should be worldwide in scope
because of the international nature of the Internet. It may be difficult
to obtain such broad rights, because they may be owned by different parties.
For example, many book publishers exclusively license or assign copyrights
to different companies for distribution in different countries. Consequently,
you would have to obtain clearances from several different companies for
a single work. Second, you will need to license public display rights
for text and photographs and public performance for video clips and music.
You generally don't need those rights for a CD-ROM because it is used
in the privacy of a home, although you would need public performance rights
to demonstrate the CD-ROM at trade shows. You would also need to license
such rights if the CD-ROM is to be used in a school or company where the
audience will be not be limited to family and friends.
The creation of a website, just like developing a CD-ROM, requires careful
attention to the legal as well as the technical aspects of the development.
The online industry is so new that it has few or no traditions of the
roles of the parties. The development contract needs to address the following
issues: ownership of the copyright and other rights in the completed website,
responsibility for the website design, definition of milestones in development
process, definition of website performance specifications, method for
confirming that the website meets the performance specifications, responsibility
for licensing third party software, liability for the failure of the website
to perform in accordance with the specifications, the responsibility for
continuing performance and updating the website, method and timing of
payment, remedies for failure to perform and liability for infringement
of third party rights.
CONCLUSION
An understanding of legal issues is critical to success in the multimedia
and online game industry. These issues are complex because of the youth
of the industry and the many industries upon which it draws to create
its products.
This primer is based on the Multimedia Law and Business Handbook (1996)
from Ladera Press, which has been praised by the Interactive Multimedia
Association. This summary of the law should not be viewed as "answering"
most questions (the book discusses these issues in more detail in 320
pages and includes twenty -two sample agreements to show how these issues
are dealt with in actual transactions) You can order the book by calling
800-523-3721 or faxing 810-987-3562.
J. Dianne Brinson has a Bachelor of Arts in Political Science and
Russian, summa cum laude, from Duke University and a law degree from Yale
Law School. She is a former tenured law professor at Georgia State University
and has taught at Golden Gate Law School and Santa Clara School of Law.
She is now in private practice as a consultant in Menlo Park, California.
She may be reached at laderapres@aol.com.
Mark F. Radcliffe is a partner in the law firm of Gray Cary Ware &
Freidenrich in Palo Alto (formerly Ware & Freidenrich). He has been
practicing intellectual property law, with a special emphasis on computer
law, for over fifteen years. He is on the Board of Directors of
the Computer Law Association and is the Editor-in-Chief of the "Journal
of Internet Law." He can be reached at mradcliffe@gcwf.com.
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