Recently, Kirin Robinson started a discussion on G+ about the disqualification of the Mass Effect RPG from the ENnies. In another thread, I wrote some words about it...
Kirin Robinson started a discussion on G+
Yesterday I learned that Trademark Law Does Not Require Companies To Tirelessly Censor the Internet. I didn’t know that. Bioware does have a choice. And in this case, as far as I remember it, Bioware still hasn’t contacted anybody, so it’s all happening between EN World, the Ennies, and the Don Mappin, the author.
Trademark Law Does Not Require Companies To Tirelessly Censor the Internet
Also, the PDF has a disclaimer at the very beginning:
*What This Book Is Not*
To be clear, this is *not* a licensed *Mass Effect* property. *Mass Effect* is the property of Bioware, a division of Electronic Arts. This is a work of fiction and done without their permission or involvement. No attempt to challenge their legal authority is intended in the publication of this material. Instead, it is our hope to expand the outreach of the *Mass Effect* property to another segment of games—role-players—who have long coveted a way to bring the events of Commander Shepard to life at their gaming tables. This product comes with one very important and unconditional stipulation:
*UNDER NO CIRCUMSTANCES MAY THIS PRODUCT BE CHARGED FOR OR RENUMERATION EXCHANGE HANDS. IT MUST REMAIN FREE OF CHARGE.*
As the sole property of Bioware/Electronic Arts, only they have the rights to benefit from the *Mass Effect* Universe. As such, this work is the result of countless unpaid hours and volunteer work to make it possible to bring to you. Why? Because we’re gamers too and we love *Mass Effect* just as much as you do!
What about the artists? The way I read the artist attribution page in the Mass Effect RPG, all those images were available on the Internet, on blogs of concept artists, on Deviant Art. So, without considering copyright law and just considering *outcomes*, these artists made things available for free, and now what they made is more available, for free. The author of the Mass Effect RPG doesn’t charge money for it. Presumably he’d share his gains with the artists in some way, if he were to make any money. But he isn’t, so he doesn’t. So, it’s still better for the gaming public, and it’s better for the artists, too. Yes, they had no voice, there was no negotiation, this doesn’t consider copyright. All I’m looking at is *outcomes*.
As far as I’m concerned, I’m with Don Mappin, here. I wish that copyright law was different. I wish that the fair use exception to copyright were clearer. As it is, it’s incredibly hard to tell whether something falls under the exception or not. That’s not good.
1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.
Reading through the Wikipedia page and following along, as a layman might be expected to, I guess:
The use was not really educational – or can a game be educational? Maybe? It teaches you how to run a Mass Effect RPG using Fate rules? Does it help “fulfill the intention of copyright law to stimulate creativity for the enrichment of the general public”? It sure looks like it to me. To me, the process of turning the video game into a set of rules for Fate is transformative, not merely derivative.
Nothing in the nature of the game seems to warrant more or less protection than usual. It doesn’t rightfully belong to the public domain. All the artwork the author used had already been published, even if not intended for use in the game, so we don’t need to consider “the aspect of whether the copied work has been previously published”.
As for the amount, I think that the material taken from the game itself is definitely not major. We’re talking some of the background material, the description of things in the game. But the games are about so much more. Characters, plots, levels, graphics. The material taken from artists is major, however. Basically the entire picture was used. I started making a little survey by searching for the first ten items on the artists credits page of the Mass Effect RPG:
1. Huen, Benjamin. The Team. 2012. I don’t like wet socks. Cover. → available from BioWare store, official, copyright by BioWare, I assume
2. ZingerNax. Mass Effect: Earth. 2013. deviantART. p. 1-2. → copyright by the author, inspired by but not an obvious derived work, it would seem to me
3. 04NIloren. MASS EFFECT - SPECTRE WALLPAPER. 2012. Desktop Wallpapers 4 Me. p. 13. → looks like fan art to me
4. Olejniczak, Patryk. Mass Effect 3 - Miranda, Mass Effect 3 - Jack, Mass Effect 3 - Zaeed Massani, Mass Effect 3 - Mordin Solus, Mass Effect 3 - Grunt, Mass Effect 3 Teaser Wallpaper, Mass Effect 3 Thane Krios, Mass Effect 3 - Kasumi Goto, Mass Effect 3 - Legion, Mass Effect 3 - Garrus. 2011. deviantART. p. 14-15, 28. → here’s a gallery, self-declared fan art (10 pieces!)
5. devtardi. Thessia - Mass Effect 3. 2012. deviantART. p. 30. → I’m guessing fan art based on comments elsewhere (”All characters (c) by BioWare and Electronic Arts.”)
6. rome123. Drell Assassin Infiltrator. 2012. deviantART. p. 39. → looks like official stuff because it says “model for me3 multiplayer”? But the copyright apparently does not belong to BioWare but to rome123 (or is that a limitation of deviantART?
7. johntesh. Thane Krios 09. 2012. deviantART. p. 40. rome123. Krogan (Default). 2012. deviantART. p. 44. → self-declared as in-game screen capture
8. DP-films. Urndot Wrex the Krogan Warlord. 2012. deviantART. p. 48. → self declared as fan art
9. Hallucinogenmushroom. Geth Prime. 2012. deviantART. p. 53. → self declared as fan art
10. Euderion. Fight for Rannoch. 2013. deviantART. p. 57. → self declared fan art
ZingerNax. Mass Effect: Earth.
04NIloren. MASS EFFECT - SPECTRE WALLPAPER.
devtardi. Thessia - Mass Effect 3.
rome123. Drell Assassin Infiltrator.
DP-films. Urndot Wrex the Krogan Warlord.
Hallucinogenmushroom. Geth Prime.
Looking at the numbers. Fan art: 15. BioWare: 3. Others: 1. Continuing the analysis of “amount”, I’d say that the amount of art-work taken from the Mass Effect series out of the copyrighted material by BioWare isn’t so big: 3 pieces out of a huge work. As for fan art: If they are not violating BioWare’s copyright because of the fair use exception, then another piece of fan art reusing them should not be violating BioWare’s copyright, either.
So, what is fan art? FAQ #572 has some information: “Original fan art are those works in which the submitting artist has done 100% of the work but the work itself depicts characters, scenes or other themes which were properly created by another creative person. […] Fan art *may* be copyright infringement and you may be forced to remove it by the copyright owner who may also choose to initiate other legal action.” I’m not sure that BioWare is interested in going after fan art in this respect. Therefore, my understanding of fair use and fan art leads me to suggest that we’re in the clear, here.
That leads us to the last point in the fair use examination, the effect upon the work’s value. Does BioWare and it’s Mass Effect based revenue suffer? Not at all, because they’re not selling a role-playing game. Now, if they were, perhaps they’d be justified under the law to go after the existing game. Now you have to argue that a company wanting to make money making a licensed game is being deterred from entering the market because the existing free fan-made game is so good, taking it down will produce a lot of bad blood. But from a customer’s perspective, that’s OK. We have copyright in order to promote the useful arts. If the useful arts are being promoted without copyright, then that’s even better. This is not an outcome to dislike, at all.
I’m still with Don Mappin.
What about the ENies? I understand their decision. The entire thing was a hot potato. They had to make a decision, fast. And I’m guessing they don’t have legal defense funds and lawyers at their disposition. That’s how the scare tactic works. We’re afraid to exercise our right, the associations we build are afraid to exercise our right. How will we learn to claim what is ours except by pushing the boundaries and arguing for our rights?
Recommended reading: Free Culture (PDF).
☯
Comments here or on Google+.
#RPG #Fate #Copyright
(Please contact me if you want to remove your comment.)
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I’m copying some of my comments from that Google+ thread to this page.
– Alex Schroeder 2015-07-02 09:36 UTC
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I believe you are making some incorrect assumptions. The Fan Art itself is also copyright - even though it might also at the same time violate someone elses copyright. All creative works are copyright by default unless the author has published them explicitly without copyright or with a limited copyright. Fair use in dealing with art rarely allows you to use someone elses image. The fact that the author is not making money from the publication isnt a defence. It can be part of a defence but it is not a defence in and of itself. You also say - we don’t need to consider “the aspect of whether the copied work has been previously published” - and then move on as though that statement is sufficient to remove it as having any bearing on the matter.
– Damian 2015-07-02 12:34 UTC
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I’ll definitely have to think about it some more. There are also a ton more counter arguments to my post on the G+ thread. What I need to understand is why fan art collecting other fan art should be considered different from the fan art it collects. I want to figure out what the exact arguments are both from a legal standpoint and from a moral standpoint. The first stumbling block as far as I am concerned is that an entire category called Fan Art exists on Deviant Art. Why is this allowed? If it is allowed, why isn’t Mass Effect RPG allowed? If it isn’t allowed, I still feel that it *should* be allowed. The current copyright situation doesn’t satisfy me. (Many of the counter arguments on G+ also deal with what is legal and what is not and I feel like I’m the only one talking about the kind of change I want to see.
– Alex Schroeder 2015-07-02 13:15 UTC
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I’m copying some more of my comments from that Google+ thread to this page.
The EFF page mentioned above points out that time-shifting and search-engines also ended up benefiting from Fair Use. That’s why I think we’re not limited to the purposes listed in the opening of §107.
My conclusion is that this Fair Use is murky waters. But I don’t see the purpose of a murky piece of legislation if that means we’re never going to benefit from it. Thus, where as I understand the decision of the ENnies, I think copyright reform is important and talking about cases, and expressing how we would have liked to see them go are an important first step in this process.
I guess I’m arguing two different things. The first thing I’m arguing is that I don’t mind using someone else’s art without permission because I like the *outcome*, even if our current copyright doesn’t allow for it. The second thing I’m trying to argue is that the Fair Use exemption offers us an incremental way out: we can fight for a broader application of Fair Use until we’re getting the outcomes we want. This part is important: I know I’m not happy with copyright law as it stands. Where do we start the political process of change? We need to talk about what makes us unhappy, say what we would like to see instead. I have to start somewhere. So that is why I’m starting with the copyright limits.
I don’t think these anecdotes should matter when we’re talking about politics. Looking after our own best interest is understandable, but as a society we need to look at the larger picture. We need to keep negotiating our laws – and copyright is one of those areas where there is tension between authors and consumers. The pain of artists needs to be weighed against the pain of consumers. All the things that are wrong with copyright: DRM, loss of freedom, legal hassle whenever you want to do something derived on other works, whether it be remixes, quotes, improvements, fan art, some allowed by the fair use exception, some not, who can tell? The hassle of finding and negotiating with right holders, movies languishing without anybody restoring them, take down notices, DMCA style burden of proof for innocents, all of this! All of this we need to compare to artists and their shitty financial situation. The current system is like a lottery. If you are in the top ten, you win the lottery. Everybody else is living off scraps. Do we need to accept all the crap copyright gives us in order to uphold an unfair system? Is there really no other world possible? That is why I refuse to be swayed my the plight of artists. Our current copyright is a law fit for paper publishers in a mass media world, top down, controlled by the few. In a digital age, where anybody can produce, where copyright affects us all, what we have is not good enough. It doesn’t produce the outcomes I want. An where as I understand the plight of artists, copyright as we currently have it, is the wrong tool. I don’t feel the obligation to protect this job. I don’t feel the state is obligated to protect this job. Yes, it would be cool if there was a different solution. A way to make money doing the things we love. Writing free software. Being an artist. Current copyright is not the way I feel like supporting.
So, do I think artists are lower class citizens? Of course not! I am so much in favor of finding ways of people making a decent living no matter what they do, doing the things they love, I don’t know how anybody can conclude that I think of artists as lower class citizens. That is so wrong I don’t even know where to start.
I think capitalism treats the making of art as something other than the production of things to sell or the sale of services – and the net effect is that almost all artists are vastly underpaid. I just don’t think that copyright is the right tool to fix that problem. There are many people producing art for free, prices go down. Sometimes this leads to a situation where making art is no longer sustainable as a job.
My wife used to dance. There was very little money in gigs. There was regular money in giving classes. There was no money in all the choreographies she wrote. There was no copyright to help her. No revenue based on licenses. She gave it up when she got an interesting full-time well paying job. It would have been great if somebody like her could have made a decent living doing the stuff she loved to do. But we live in a capitalist society. Too much supply, not enough demand.
Barring an *unconditional basic income* solution, or a more limited *support for artists by the state*, I don’t see it happening. And so most of the musicians and dancers I know do it in their free time. Just as I write the code I love in my free time.
The battle to reform 300-year-old copyright law for the digital age
As is evident, the only “solution” that the Commission could imagine was one based around licensing. The idea that non-commercial user-generated content might not need a licence at all—that it could be covered by an exception as it is in the US under the “fair use” approach—never seemed to be an option. – Glyn Moody, Ars Technica
Too many of us cannot see beyond the current system. We need to imagine a different future and work towards it. We don’t need to strengthen copyright. Artists must be able to make a living and we need to find a way to allow that without DRM and the criminalization of all the little things we want to do. We need to “promote the Progress of Science and useful Arts” using different means.
– Alex Schroeder