Xbox Live 360.com. Games and Games.

A recently posted article on the State Bar of Texas blog about Machinima Law features me fairly prominently. While there is a bit of a misquote with regard to the origin of machinima (it should say Quake, not Halo, though Halo certainly popularized it), it's an interesting piece. I really do think Texas is the unofficial machinima capital, since id and RoosterTeeth (the source of Quake and the most successful machinima studio) are both based in the state.

Check it out.

In discussions I’ve had with various others in all aspects of the intellectual property realm, I’ve continually run across points where the law has lagged behind the practicality of intellectual property management. This has been an ongoing problem in the IP realm with respect to issues created by technology, but issues do extend into other areas as well. In order to outline some of these issues and possible solutions, I will be occasionally posting articles in my Intellectual Property 2.0 series.

I can’t imagine that those who created our copyright and trademark laws envisioned the world we live in today, where the entertainment industry has become a megalith dominated by ongoing brands as much as it is by individual works. It is to this end that we have seen some unforeseen consequences. Copyright continues to be extended, negating much of the original intent that works pass to the public domain. However, should these works ever pass into the public domain, a new issue would immediately be born. To the extent that many of these works are also the matter of trademark for the company, they are, in essence, still not in the public domain. By the same token, should Congress continue to extend copyright, they never will be. But is there a solution? Within the practical bounds of intellectual property as we know it, not exactly. However, if the legal system is willing to move forward into a more modern intellectual property scheme, then we can solve both issues simultaneously.

This new idea is something I would refer to as ‘Copymark.’ In short, to the extent a copyrighted work is also the subject of a registered trademark, the copyright remains intact until the trademark lapses. By creation of this new category of intellectual property, you resolve two issues. One, copyright need never be extended for a concern related to the ‘brand.’ Two, those with copyrights that overlap with their trademarks no longer need to be concerned with the fate of the brand once the copyright expires. In order to balance rights, though, there would of course be a catch. To register for copymark, one must forego traditional copyright and trademark filings, and as a result, should the copymark lapse, the work would go immediately into the public domain regardless of the ‘life of the author plus 70 years’ or other expiration provisions of copyright law. More than likely, copymark status would be a filing once both the trademark and copyright are established, and the filer would have to forego their existing copyright and trademark rights in order to secure the new registration.

The concept would really only have appeal or application to those within the entertainment realms. After all, the IP is only applicable to instances when both copyright and trademark to the same IP. Unless you are already in an industry which deals in copyrighted works, then the copymark would never even be an issue. Conversely, unless you develop products and a brand that associate with a copyright, then copymark would never be available. Whether or not a ‘famous’ element would be a consideration is yet to be seen. In short, this is more or less a solution for the Disneys, the Microsofts, the Nintendos, and other big players whose copyrighted characters are also synonymous with the brand itself.

Taking a practical example from the world of gaming, let’s look at Mario. Mario is the subject of many of Nintendo’s trademarks and is more or less synonymous with the Nintendo brand, much like Mickey Mouse and Disney. Well into the future, is there any major benefit for the original Super Mario Brothers to pass into the public domain when the original Mario 8-bit sprite is still the subject of trademark? Similarly, would it be practical for Steamboat Willie to enter the public domain while Mickey Mouse is such a closely protected trademark? From a practical standpoint, not really. Assuming the rights holder is looking to aggressively protect the brand, use of the public domain character would be attacked on trademark grounds, and potentially with good reason. Any game you encounter with Mario in it is expected to be a Nintendo creation. Brand identity has moved beyond traditional trademark notions with respect to entertainment properties. Copymark resolves the incongruity of copyright and trademark with respect to entertainment products.

I can only imagine that many on the intellectual freedom side would, on principal and face value, oppose this idea. However, it is worth pointing out that much like the source intellectual properties, copymark would require fair use provisions. What exactly those provisions would entail would likely be the subject of a lengthy debate, however, elements of both copyright and trademark fair use theory would need to be present. Elements like critique, news reporting, and brand identification would be easily preserved under a copymark regime. In fact, it may even be an opportunity to introduce newer fair use provisions that are appropriate to these IPs.

It may be expecting a lot to see a tectonic shift in well established intellectual property regimes, but it is inevitable that new problems will require new solutions. The entertainment brand as we know it did not exist decades ago, but it is a near certainty that it will continue in this manner for decades to come. The printing press gave rise to copyright, and the guild system gave rise to trademark. It only seems to follow logically that the changes to the entertainment ‘brand’ would give rise to a new intellectual property regime, since intellectual property is the backbone of the industry itself. I can only imagine that companies like Microsoft and Disney might jump at the opportunity to see some of their most prized IPs protected throughout their useful life, rather than having to re-lobby Congress before certain copyrights are set to expire. It's difficult to predict whether an idea like this might ever truly be implemented, but unless people are willing to think outside the traditional intellectual property box, problems like these will be perpetual.

This week on Law of the Game on Joystiq: Machinima.

Read on!

Microsoft has finally posted the long promised "Revised" Game Content Usage Rules. They are available here. Now that they are available, what has changed? The short answer is "Not much."

1. The "reverse engineering" rule was re-written to clarify "not normally permitted by the game." As such, things like the Halo 3 Forge or the Halo CE included editors seem to be acceptable.

2. One of the most notable changes is the specific reference to film festivals. You are allowed to enter film festivals, even those with prizes, with machinima. However, this seems like a fine line as there is also a specific note as to contests. Generally, the difference seems to be securing Microsoft's permission for the use.

3. The music/soundtrack/sound effect issue is more resolved, and for Halo fans, Halo 3 is specifically noted as having a usable soundtrack for machinima. This, as I noted in previous articles, falls about in the manner you would expect. The soundtracks are often licensed, and it's more noticeable in some games (i.e. PGR where the tracks are named) than in others. Microsoft seems committed to making notice of this on a game by game basis on the Xbox.com site/forums, which seems like a more reasonable course of action than an outright ban.

4. The phrase "You'll know it when you see it." appears a lot. On the plus side, this leaves a lot of room for interpretation. On the negative side, this leaves a lot of room for interpretation. I suppose we'll find out more as this is enforced, both as to the content and as to "Microsoft approval" on contests.

5. The backstory/lost chapters rule has changed significantly. You are now allowed to tell any story, but if your story contains elements from the game's story arc or surrounding content, then you're providing Microsoft a license to use that content. This is actually a fairly good solution to a real problem, even if it seems as though the machinimist is losing the rights to their "story." There have been many cases (mostly in the film and literary arenas) where someone writes a story, then without knowing, someone else writes a related story. Or, a writer sends a script in, the script is returned and the film company makes a similar movie. This often results in a lawsuit. What Microsoft is trying to avoid is the instance where they already have a story planned, and then one or more machinimists create something similar, Microsoft releases their content and the machinimist sues for infringement. If you want to work in Microsoft's universes, you have to accept that Microsoft may use a similar story, and you're giving up recourse if that happens. On the other hand, if you create something totally original, you've given up nothing.

6. You can let other people build on your work, but it's governed by the same rules as your work. Basically, it's a trickle down license.

7. They actually provide a contact email for people interested in getting a commercial license or for film fesitval sponsors who want approval. The address is gamevids*at*microsoft.com.

All in all, while the changes are not unexpected or dramatic, they are all positive and address many of the concerns of the machinima community.

Related Stories:
Past Microsoft Machinima Rule Coverage
Blizzard Machinima Rule

Following in the footsteps of Microsoft, Blizzard unveiled their own "Machinima Rules" late last week. The approach taken by these rules, however, is the complete opposite of Microsoft's approach in my opinion.

First and foremost, their primary concern (like Microsoft's) is that the use isn't commercial. Rather than going the strictly non-profit route, Blizzard essentially gives the stamp of approval to the method that Rooster Teeth made popular (even though Rooster Teeth has no Blizzard-derived machinima at this time). Specifically, there has to be a free version of the video available, even if there is a pay version with, say, better download speed or, I assume, in higher resolution. There's also no restriction on donations.

Second, there is no restrictions on elements of the game. You're either allowed to make your movie or not. So, the sound effects and background music appear to be fair game.

Third, Blizzard has placed a pretty harsh, but simple, content restriction that all movies keep within the "T (Teen)" or "PG-13" type content level. (Blizzard specifically cites "T," but it seems relatively safe to assume that that equates to a PG-13 rating.) While this is much stricter than Microsoft's restriction, it's also a fairly established bright line. According to the ESRB, "Titles rated T (Teen) have content that may be suitable for ages 13 and older. Titles in this category may contain violence, suggestive themes, crude humor, minimal blood, simulated gambling, and/or infrequent use of strong language."

Fourth, Blizzard explicitly allows the use of movies in various contests, but a license is required. However, it seems that as long as the content rules have been followed, a license should come with little resistance.

Fifth, educational use is specifically allowed. I find this comforting, but many people would argue that "fair use" would allow educational use regardless. "Fair use" can be read narrowly or broadly, and I think the clarification here does a lot of good in that regard.

Sixth, they place a 10 second restriction on sponsor inclusion. This seems to go toward the "no commercial use" ends more than anything, and I expect few will have a real problem with this restriction.

Finally, they make no mention of a commercial license per se, but do give a specific contact e-mail address for questions.

With Microsoft and Blizzard on board, I am left to wonder how long before other companies follow suit. I also wonder if Microsoft may follow some of Blizzard's leads in the revisions of their rules which are supposedly being drafted. In any case, this is generally good news for the various WoW machinimators out there.

[Via WOWInsider, Machinima for Dummies]

Just a few, new key updates:

1. There will soon be a standard contact form for commercial licenses.
2. There has been some mild clarification on reverse engineering, but still nothing definite. In short, if you can extract assets without doing anything illegal or abnormal to the game, it may be fine. A more detailed description is available in the original post.

[Via Machinima for Dummies]

It would seem that more and more people in the blog-o-sphere are joining the Microsoft Content Usage Rules coverage, most recently the EFF and the blog for the book Machinima for Dummies. Both of these parties were privvy to a conference call sometime yesterday in which it was revealed that Microsoft is updating the Content Usage Rules (the "Machinima Rules"), and revised rules should be made public "soon." I personally hope that these rules address some, if not all, of the major issues I have pointed out in my coverage of the Machinima Rules. Once the new rules are posted, I will post a revised analysis.

For more information see my previous coverage of the "Machinima Rules":
Microsoft's New Content Usage Rules: A Small Step for Machinima
New Microsoft Machinima Rules Revisited
Microsoft Machinima Rule Podcast
More Details on the Microsoft Machinima Rule

A Microsoft attorney who goes by DonkeyXote has posted a discussion of the Microsoft Content Usage Rules in his blog. Before reading my continued commentary on the issue, you should probably read his five clarification points.

The clarification process, I can only imagine, will continue for quite some time as new issues continue to pop up from the Machinima community. There are a couple issues that specifically need some attention in the near future.

1. The Universe Expansion Rule
I suppose the real question is how remote is remote enough to be allowed? While I can understand the point DonkeyXote makes in his post, it doesn't speak to the machinimist trying to develop his story. It was a point Laird and I specifically discussed in the recent podcast. For example, I'm certain making use of any of the game's characters is not allowed. But what about a story going on in the same timeframe in another part of the universe? What about a parallel universe? Do you need to re-name all of the character models? Speaking to a more practical level, is the Red vs. Blue storyline remote enough? Sponsors vs. Freeloaders? Halo Unyielding? It would be much easier on the community if a clear framework were applied to this rule.

2. Reverse Engineering/Modifying the Engine Rule
The rule itself is vague enough that "reverse engineering" could involve modifications made using, for example, the tools in Halo CE, Halo 2 Vista, or what appears to be in the Halo 3 Forge. While I would anticipate that this isn't "modifying" the engine, I think the community would feel more comfortable if Microsoft said that these things were allowed.

3. The Contest Rule
Are all contests disallowed? And if so, what is a "contest?" Is entering a video in the YouTube Debates a contest? You do have the basic elements of a "contest," but the prize has no monetary value. A clarification as to the term contest (for example, that it has to have a prize worth $XXX) would likely be quite helpful.


All in all, it is nice to see one of the drafters of the rule address the issue in his blog, and hopefully he will continue to field questions like these as they arise.

Last evening, I was invited onto a podcast to discuss Law of the Game and the new Microsoft Machinima Rule. The podcast is ClassyDude's Emporium of Chat, found here.

The podcast's description is here, and a direct download of the episode is here. It's also a news item on Halo.Bungie.Org.

I'd also like to offer one clarification. Toward the end of the podcast, the topic of receiving a letter from Microsoft came up. I think I could have more clearly explained that the person you are being contacted by is probably a lawyer, and having your own representation is highly advisable in regard to contacting Microsoft about any letter they send you. However, if you cannot afford a lawyer, you can choose to contact them yourself, but be aware you are talking to Microsoft (and probably a lawyer) and that you should be apologetic and polite without incriminating yourself.

Anyway, the podcast is a bit lengthy, but if the Microsoft Machinima Rules are of interest to you, then I think you'll enjoy it.

As I've been monitoring the reaction to the new machinima rules Microsoft put out last week, I'm seeing far more negative doom and gloom reactions than I had anticipated. As such, I thought it might be an opportune time to address a few of the more common reactions I've seen to hopefully put the rules in perspective.

1. It was legal before, and now they're punishing us?

Surprisingly enough, what you were doing before was actually illegal. Specifically, it was copyright infringement. This isn't nearly as nebulous as re-skinning an engine, an issue I plan to go further into in the third part of my copyright discussion. You are using the game, exactly as it was, to create a new work. This new work is a derivative work, and creating a derivative work without a license is, in fact, copyright infringement. Microsoft was simply not enforcing their rights to that point in most cases. Simply because something happened does not mean it was legal.

2. This is the end of machinima.

This is by no means the end of machinima. In fact, it makes the whole operation far more clear cut for people who use those Microsoft games in their series. It just means that more creativity will have to go into the series to avoid the "expanding the universe" rule, and more audio production will be involved to make up for the sound effects. Moreover, these rules only apply to the Microsoft games on the list. If this is really an issue, use a different engine. Much like I noted in the SouthPaw Manifesto, if you don't like something, don't buy/use it. Of course, I think you will be hard pressed to find a game developer, at this point in time, who has said "Please use my game to make as many videos as you like, and feel free to profit on them as much as you can."


3. No wonder Rooster Teeth ended Red vs. Blue. They must have had advance notice!

I really can't speak to whether Burnie and crew had advance notice, but I am fairly certain Rooster Teeth has a commercial license. You might have noticed a little one sentence reference to "commercial license" in the guidelines. A license like this will give you the freedom to do whatever you like within the scope of that license. However, there are two caveats: 1. You have
to get a commercial license for your production group; and 2. Microsoft doesn't exactly hand them out like candy. In fact, the only license that has been granted which I know of is the Rooster Teeth license. This does not mean that other licenses won't be granted, but they are not a simple thing to get your hands on. So, if you think you can get one, you need to ask Microsoft, and then negotiate the terms accordingly. Otherwise, you need to follow the new rules.

4. It is impossible to produce anything under these rules, especially without accepting donations.

If this were 2003, I would probably agree with you that the donation requirement essentially negates the concept of online machinima as the distribution costs will likely bankrupt you. However, YouTube at least makes it possible to get your content out there. I think many machinimators need to ask themselves: Am I in this to produce something, or am I in this for the money? If you really want to get your material out there, it can certainly be done. Yes, you have to pony up the money for the hard materials of your hobby: PC upgrades, games, systems. However, the distribution can now be done for free. And the fan community? Free message boards are a dime a dozen.

If you can produce something truly great, the rest will fall into place. I would imagine if Microsoft found some starving machinimist who had a brilliant series running on YouTube or GameTrailers or some other free site, they would be far more likely to grant a commercial license based on the existing content than they would be to just another face in the crowd. Actors, musicians, writers, and other artists don't just become instantly wealthy. They have to work at their art. Just keep that in mind as you're working on your next project, without the donations.

5. This is a huge step backward for machinima.

Actually, this is just the opposite. A game company is finally saying "You can make machinima. You just have to follow some rules." Most developers have remained totally silent on the issue, and there may come a time when they choose to respond with a lawsuit rather than the conditional permission Microsoft chose.



So, the big M has spoken, and the world hasn't ended. Machinima still exists, it's just not as straightforward as it was when it wasn't legal. And once everyone has time to adjust, I'm sure we'll see some great new work. For those of you who had a series that violated the rules, I'm sorry you had to kill off your project. But look at this as an opportunity to make your own work even better, not as a big corporation squashing your dream. In the end, compromises like this are more than likely going to be the future of the medium. I'm personally glad they didn't decide to end machinima with their games altogether.

Microsoft has set forth an interesting new content policy, found here, that seems to be giving the non-profit machinimist a break. In fact, I would go as far as to say this is really what needed to be done, but only addresses half of the issue.

The rules boil down to this: You can use the following games:
-Age of Empires (all versions)
-Flight Simulator (all versions)
-Forza Motorsport (all versions)
-Halo: Combat Evolved, Halo 2, and Halo 3 (when released)
-Kameo
-Perfect Dark Zero
-Project Gotham Racing (all versions)
-Rise of Nations (all versions)
-Shadowrun
-Viva Piñata

to make machinima, provided you put the following disclaimer on it:

[The title of your Item] was created under Microsoft’s “Game Content Usage Rules” using assets from GAMENAME, © Microsoft Corporation.

AND it follows these rules:


"1. You can’t reverse engineer our games to access the assets or otherwise do things that the games don’t normally permit in order to create your Items.
2. You can’t use Game Content to create pornographic or obscene Items, or anything that contains vulgar, racist, hateful, or otherwise objectionable content.
3. You can’t sell or otherwise earn anything from your Items. We will let you have advertising on the page with the Item on it, but that’s it. That means you can’t sell it, post it on a site that requires subscription or other fees, solicit donations of any kind (even by PayPal), use it to enter a contest or sweepstakes, or post it on a page you use to sell other items (even if those other items have nothing to do with Game Content or Microsoft).
4. You can’t use the soundtracks or audio effects from the original game. We often license those from third parties and don’t have the rights to pass them on to you.
5. You can’t infringe anyone’s IP rights in your Item, even if the IP rights being infringed don’t belong to Microsoft. Among other things that means you can’t use any of Microsoft’s trademarked logos or names except in the ways described in the pages linked from www.microsoft.com/trademarks.
6. You can’t add to the game universe or expand on the story told in the game with “lost chapters” or back story or anything like that.
7. You can’t grant anyone the right to build on your creations. We don’t mind if other people help you out, but you have to be clear with them that it’s not you giving permission, it’s us. (That’s how we make sure everyone plays by the same rules.)"

Consider these the 7 Deadly Sins of Microsoft Machinima. In short, they are:
1. Hacking
2. Obscenity
3. Profit
4. Audio
5. Other IP
6. Fanfiction
7. Piggybacking

Presuming you play by these rules, Microsoft will leave you alone. There are, of course, still a few particular issues with this scheme.

1. You essentially have to overwrite the entire audio track. While this is understandable to the extent of background music, many machinimists do use the sound effects. Moreover, dedicated players will know that the effect is different for, say, the ghost in Halo. I estimate that many people may hear from Microsoft on the sound effect issue, if the plan to enforce it.
2. Of course, you're not allowed to make any money, at all, whatsoever. Since many machinimists do have a "donate via paypal" link on their site, the link will need to be removed to comply with the new rules.
3. There's also no stated method for contact for obtaining a commercial license, although they do mention the commercial license. I assume this means that still, for the most part, the answer is "no" on that particular front, unless you happen to be Rooster Teeth Productions.

All in all, I think this is a good move for Microsoft and it would not surprise me to see other companies follow suit. This license generates a positive reaction from the fans and really doesn't hurt the owner of the IP license. Additionally, it retains control over the assets, so issues of the items becoming "public domain" due to use by the consumer should be mitigated. It, unfortunately, doesn't really offer anything for the aspiring professional machinimist.

[Thanks to Overman for the tip.]

The New York TV Festival is offering a filmmaker the chance for cash, a six episode stint, and Xbox Live distribution in a contest dubbed "Xbox Live Originals." Sounds great, right? As always, there's a catch. Delving into the application, film makers are essentially giving up all rights in their work in order to enter. To quote portions of the terms:

Each entrant further acknowledges that the NYTVF and its affiliates, employees, officers, directors, licensees, assigns, and sponsors (collectively the “Designated Entities”) engage and have engaged in extensive activities in connection with developing, writing, acquiring, publishing, disseminating and broadcasting literary, artistic, and other material, including stories, ideas, themes, plots, titles, screenplays, teleplays, treatments, formats, and concepts (collectively, the “Materials”). In submitting an entry to NYTVF, each entrant acknowledges and understands that any Materials that the Designated Entities may hereinafter use or exploit may have originated with the Designated Entities themselves or may have been acquired from the Designated Entities’ employees or other parties, and that such Materials may duplicate, parallel or resemble the entrant’s entry to the Competition.

By submitting an entry, entrants acknowledge that they understand and agree that the Designated Entities’ use of Materials containing features and elements similar to or identical with those contained in their entry shall not entitle the entrant to any compensation whatsoever. As an inducement to NYTVF to accept the entrant’s entry into the Competition, each entrant hereby waives any claim or right of action against any of the Designated Entities or their successors in connection with the Designated
Entities’ use of any Materials (or any portions thereof) whether or not such materials contain any features or elements similar or identical to those contained in an entrant’s entry.

That is all in the terms that most people do not bother to read. In summary: If the "Designated Entities" use your ideas, characters, or anything else, you are not entitled to compensation. And so goes my love-hate relationship with most contests involving creative submissions. On the one hand, it can give real talent their big break. On the other hand, the entrants are more or less forced to abandon the entered works because the sponsors fear even the hint of a lawsuit over the re-use of the materials. Whether this would be an unenforceable contract of adhesion is debatable, but ultimately, the contest is optional, and I don't think such an analysis would apply.

Whether or not you agree with this particular contest, it does bring up some other issues. What might the future hold for Xbox Live as a distribution medium? I think things have been going rather well for the system, even if IPTV is a ways off from full-scale implementation. It is an easy way to get into a lot of homes with an established network, and assuming the price per episode isn't too high, many people will pay for the content. As a plus to the author, the copy protection is built into the medium, and the royalty system should be pretty straightforward on a per purchase basis. However, I think the audience would be rather limited in scope, and machinima may have more success with that audience than more traditional offerings.

However, while Xbox Live distribution might help gain some initial traction, or serve as a nice supplement as evidenced by the use of the medium by Rooster Teeth for Red vs. Blue), I doubt that Xbox Live distribution can, at present, replace more other channels, such as the internet and DVD, for start ups. That is not to say that Xbox Live distribution won't be a viable stand alone business model in the future, I just don't think it is yet. And I think the reasoning here is underscored by reports like the one on game system use as a movie player. While Microsoft and Sony may have integrated many media features, the consoles are still primarily game systems to the average consumer for the time being.

I just wanted to take a moment out of the legal commentary to give a big "Congrats!" to Burnie, Geoff, Gus, Matt, Dan, Jason, Joel, Kathleen, and everyone else over at Rooster Teeth Productions on the release of Red vs. Blue Episode 100.

When I saw the Red vs. Blue trailer posted on DrunkGamers.com in the fall of 2002, I don't think I could have imagined just how far the series would go. I can only say I've been extremely fortunate to be around for the ride. I can't wait to see what Rooster Teeth has in store for us in the future.


Congrats, Rooster Teeth! Keep up the good work!

Let’s Talk About Machinima is a 3 part series. The first was Machinima from the perspective of the Machinimist. The second tackled Machinima from the point of view of the game developer. Finally, the third is a bit of a forward thinking proposal on Machinima.

Part 3

“So, Where is Machinima Going?”

While I make no claim to being the Nostradamus of the machinima world, I do believe I have a model that could simplify machinima for both the machinimist and the developer, while protecting everyone’s rights and hopefully letting some start-ups make money without having to take out a second mortgage (or sell their game collections on eBay). Of course, what I’m proposing will likely take the backing of a major machinima operation like Rooster Teeth or Machinima.com as well as the cooperation of a few game studios. Think of the proposal as taking the next step past what Machinima.com has built to date.

A Modest Machinima Proposal

To boil this down to its basic level: YouTube for Machinima, but with a model by which the end user can actually make money. The site, for the sake of this proposal let’s call it NewMachinima.com, is the key to the entire proposal. It allows all users to upload video content. This content will be limited to machinima for which the site has acquired a specialized license. That content can then be classified by the uploading user as “free,” “donation,” or “subscription.” Free content is just that, free. Donation content allows people to choose to donate to the machnimist, but the content is still free. Subscription content is limited to paying subscribers. On the latter two, when payment is made, 70% goes directly to the uploading user. The remaining 30% is divided, with 15% going to the game company and 15% retained by the site. Of course, these numbers are variable, depending on actual application.

Why This Idea Works:

1. Developers Keep Their Rights

The most important thing from a developer’s standpoint is protecting their rights. Under this plan, the developer has issued a license, one time, to the site. They have avoided the fees associated with repeated licensing, but have maintained a license for the end user. They only have to police other video sites (like YouTube and Google Video) for possible infringers.

2. Machinimists Can More Easily Publish Works

YouTube already makes putting video on the internet easy, and that is not the main purpose of this site. The main purpose is to take some burden off of the machinimist in procuring a license to create their art. Moreover, with the engine appropriately licensed already, the machinimst will have little trouble retaining the rights to their portion of the work or registering a copyright.

3. Everyone Profits

The key problem with YouTube is they make money off your hard work. The key problem with posting your machinima independently without securing a license and charging for it is that you’re making money and the developer is both losing money and rights. This concept solves both of those issues. The machinimist can make money from his or her work. The developer makes some money for providing the license. And, of course, the website makes money so it can continue to provide the service (although ads may be a necessary evil, at least for the free videos).

So, when can we start?

The business model is right here, and it is relatively simple. In fact, I would be happy to work with anyone on a project like this. The difficulties, however, are not insignificant.

1. The group creating this site needs startup money.
2. The group also needs some industry connections to at least procure those initial licenses.
3. The legal work involved is fairly complex, so a competent attorney would be needed to coordinate the licensing.

Those are just the three main issues, as I’m sure a few dozen smaller issues will likely pop up in the interim while bringing this idea off the ground. However, properly executed, this could be the next step in the machinima evolution, bringing even more machinima content to the masses. And from here, who knows what the future could bring, be it Xbox Marketplace integration or something even newer and more revolutionary.

Let’s Talk About Machinima is a 3 part series. The first was Machinima from the perspective of the Machinimist. The second tackles Machinima from the point of view of the game developer. Finally, the third will be a bit of a forward thinking proposal on Machinima.

Part 2

“So What Should I Do About Machinima?”

If I could boil down this article into one statement, it would simply be:

Machinima can be a developer/publisher’s best friend or worst enemy.

Simple and peculiar as that statement may be, it addresses the entire issue. Machinima can bring more fans and players to a particular game or even create an entire community around a game. On the other hand, allowing people to freely generate derivative works from your intellectual property can hinder your ability to enforce your rights in the future. It is the essence of the double edged sword analogy.

Machinima as a Friend: Publicity

I think it has become readily apparent that machinima can do a lot for game publicity. Take F.E.A.R. and the machinima P.A.N.I.C.S., for example. I know I downloaded the F.E.A.R. demo because of P.A.N.I.C.S., and ultimately bought the game. Another example, the ever growing cult of Halo has definitely had some boost in membership from Red vs. Blue (and vice versa). And those are just two examples. Simply put: A well-crafted machinima can draw people to any game. (The caveat being well-crafted.)

Machinima as an Enemy: Intellectual Property Rights

On the other hand, letting the general public do what they will with your game engine can be seen as an unwillingness to enforce your rights to your intellectual property. If you are seen in this light, then you may be unable to enforce rights in the future. What does this mean specifically? Well, let me use an example. Let’s say I write a story that becomes very popular. All of a sudden, hundreds of people start writing side stories about my characters. I choose not to enforce my rights. Later, yet another one of those side stories becomes hugely popular and starts making a lot of money. If I were to sue to enforce my rights, the court would likely ask why I hadn’t bothered to enforce these rights on anyone else. Profit alone is not enough of a reason to pursue or ignore derivative works. A game is no different than a story, and the level of derivativeness is largely based on how much of the game is incorporated into the machinima. For example, Red vs. Blue would be less derivative than a machinima about the Master Chief.

So what is a Developer to do?

Is there a way to have both the publicity and the rights? Of course, and the answer is licensing. So long as you enforce the use of licenses for your work, and pursue those who won’t make the effort to secure a license, then you should be seen as enforcing your rights. Of course, you should have your attorney draft the license.

This just leaves the issue of royalties. For a contract like a license to be valid, both sides have to tender “consideration” for the deal. You are tendering the license to use the game for machinima. The recipient of the license needs to tender something of value. In the case of a machinima license, asking for something as simple as $5 or $10 dollars for non-commercial use should be thoroughly sufficient. Of course, if there is a commercial use involved, a developer or publisher is likely going to want more than token consideration. On the other hand, a developer who wishes to have no machinima made can simply refuse all license requests.

The secondary part, though, it to actively protect your rights by monitoring sites like YouTube for unlicensed video works. As part of this, the license will likely need to detail the name of the person who receives the license as well as a screen name they plan to post it under. The developer needs to send removal requests to the site for all unlicensed works. Even if they are not removed, keeping a record of actions to get them removed may satisfy some courts in terms of the base level of action required to maintain protective rights to the work. As a general rule, requests that result in no action are worth more than not sending requests at all.

Check back soon for Part 3: “So, Where is Machinima Going?” Part 3 will detail my thoughts on making this process easier for both the Machinimist and the Developer while keeping everyone’s rights intact.

Let’s Talk About Machinima will be a 3 part series. The first will be Machinima from the perspective of the Machinimist. The second will tackle Machinima from the point of view of the game developer. Finally, the third will be a bit of a forward thinking proposal on Machinima.

Before I begin part one, I do feel it would be useful to give a few Machinima links for the uninformed.

Wikipedia article on Machinima – A good quick reference for those not familiar with the art form.

Machinima.com – A huge library of Machinima and related articles

Machinima.org – The Academy of Machinima Arts and Sciences (the Machinima awards)

Rooster Teeth Productions – Probably the most successful and well known group of Machinimists to date, as well as makers of what is probably the most popular Machinima series, Red vs. Blue.

Part 1

“So You Want to Make Machinima”

Ever since Red vs. Blue stormed across the internet in 2003, people worldwide have been interested in machinima. While others may quibble on the exact catalyst for the machinima explosion, I firmly believe Burnie Burns and company are at least mostly responsible for it. However, machinima is one of the more complex mediums from a legal standpoint. Not only are there the traditional film maker’s intellectual property concerns, there are also a whole host of concerns from the game engine used for the machinima. Hopefully this article will help explain some of these issues. However, I must caution anyone who wants to create a business in machinima: SEEK COMPETENT LEGAL ADVICE FROM AN ATTORNEY. This article alone is not sufficient to guide anyone, and as every situation varies based on the facts, competent counsel is an absolute must.

Script

A script is like any other text, be it a book or a paper or an essay. To protect the content of the document, it needs to be copyrighted. Copyrights are relatively inexpensive (the filing fee is currently $45 for most items), and the process is pretty simple. Copies of the work are submitted with the form and fee, and a copyright certificate is mailed back in a few weeks.

The biggest misunderstanding with the copyright system is that a copyright only protects the expression itself, NOT the idea. The term originates from having the right to produce copies of text. With a copyright, the dialog is protected, not the plot (more or less).

There is one potential pitfall with the script. If a large portion of the script employs elements from the game (characters, dialog, etc.), then it might be considered a derivative work rather than an original work. If that is the case, then you will need to have the original author’s permission to copyright the work. A good example of a script that would not be a derivative work is the script to The Strangerhood. While Sims 2 elements are clear in the video, the script itself could be applied to anything and does not take anything from the game.

Voice Talent

Voice Talent is something that needs to be carefully contracted. I know that many machinimists start out using their buddies and that most people feel awkward about presenting a friend with a contract. If you want to be forward thinking, abandon this mindset. It is far better to set down the ground rules in a contract up front than have the whole thing blow up down the road. The contract does not have to be overly formal, but should outline things such as who owns the rights to the actual vocal performance, what (if any) compensation there will be, and under what conditions the agreement can be modified or terminated, and if terminated what happens to the rights set forth in the contract.

Obviously, if your machinima takes off and reaches the Rooster Teeth level of accomplishment, hiring an attorney to revisit and draft more thorough contracts would be a smart move, but for the aspiring machinimist, a simple agreement signed by both parties should be more than enough to get you started.

Music

Music is the first item in this discussion that you have to get licensed, unless it’s your original work or it exists in the public domain. Before getting into licensing commercial songs, let’s address these two issues. First, if you write your own music, you have full rights to it. Once again, however, it would be worthwhile to copyright your music. Songs in the public domain, on the other hand, are ones that not subject to copyright. They are free to use, and sites like PDInfo.com can help you locate such songs.

If you want to use commercial music, you will need a license, and licenses are not cheap. Short of getting permission from the individual artist, groups like ASCAP provide licenses to a large list of songs, provided you continue to pay the bill. They even have a “new media” license (see here).

Game Engine

The game engine is the copyright issue that is the trickiest part to deal with, but also the most integral part of the machinima. There are a whole host of issues, more than I can fully discuss, but I will try to focus on some of the main points. In Part 3, I will discuss some changes that could be made in the future to simplify this process. Before I begin, there are engines that exist in the public domain or with a public license of some sort (such as the GPL). These are free to use, and the issues discussed here should not apply.

First, there is the issue of derivative works. When you use a game engine, especially the character models and maps, you are in essence creating a derivative work based on the game, almost like a fan fiction is a story based on an existing copyrighted work. While it is copyright infringement on its face, uploading a short video on YouTube or Machinima.com may never attract enough attention to actually commence a copyright action against you. In fact, Machinima.com has agreements with some developers to use their engines in conjunction with their website (please see Machinima.com for details). However, if your project becomes widely popular, expands into a series, or becomes a full time business venture, then the developer will likely notice. This is especially true if profit enters the picture.

Similarly, the End User License Agreement on most engines forbids their use for profit or for commercial use. This is another potential lawsuit if your machinima takes off. Again, this is something that you, as a machinimist, want to avoid.

The easiest route is to simply ask the publisher or developer for permission. Depending on whom that is, permission may be free, inexpensive, very expensive, or just not available at all. To find out, you will simply have to ask, but keep in mind that smaller developers or publishers are often much more understanding on issues such as these than the bigger or more popular studios. If you reach an agreement for the use of an engine, the first rule is to get it in writing, and make sure it’s an official writing (signed by someone in the company with authority to do so, preferably on company letterhead). Second, if you are paying for the license, pay by personal check and put some information on the memo line, such as “License to Use XXXXX Engine in Machinima.” While it may sound like overkill or Judge Judy advice, little elements like that can be useful should a dispute ever arise. The final rule is: Don’t push your luck. If you get a license for one project, don’t start five more and expect the company to go along with it. If you have a license, don’t give it to your friend. Ultimately, if a large number of machinimists garner ill will with the developers, then no machinimists will get licenses. Put simple, if you want to be respected, treat others with respect.

Final Video Product

Assuming you have the rights to all elements of the video (the engine, the music, the voices, the script), then you can copyright your entire video, individually or in batches (such as a season of videos). This protects you from others distributing your video without your permission. After all, if you are finally making money selling your machinima DVDs, you don’t want little Timmy down the block burning copies and selling them for half price on eBay. While getting more people to see your work is always great, the artist should be the only one profiting from the work.

Check back in the near future for Part 2: “So What Should I Do About Machinima?” (Machinima for Game Developers)