Money is the Dividing Line
I recently tripped over this posting at "The Dave's Shit Tip" (love the title) in which Dave posts his Machinima film to several free video hosting services - namely, YouTube, Google and Revver. Everything seems to be going along fine, when suddenly, Revver pulls his vid. Why? It's considered a copyright offense by Revver.
Yow.
The story continues: Dave goes on to contact Revver, who confirm that they removed his Machinima because they felt it was in breach of EA's copyrights. He then mails EA to get some further clarification from their end - and is now awaiting a response. If Battlefield 2, in fact, includes BattleRecorder for the sake of making Machinima, why is the final product solely EA's work? (yes, lots of answers here). Unfortunately, I don't imagine that Dave will hear from EA too soon (if at all), but if they do reply, they'll most likely point to the EULA that states the work is not his to post, nevermind enjoying all the $$$ he could possibly earn from it.
Again, no surprises here - its easy to see why Revver pulled the vid. Revver, for those not familiar with their service, allows the end user to share in the ad revenue associated with their posted videos. Some educated speculation: Because Machinima falls into the grey zone of questionable fair use/derivative work, Revver sees it as a catalyst of possible litigation given its unlicensed use.
Google and YouTube have similar "authorized copyright holders only" agreements in place, but the ad revenue derived is not directly tied to the videos themselves, nor is it shared with the person who uploads the content. This allows them to squirm around the "video=ad revenue" question. Therefore, Google and YouTube can be a bit more loose around the agreements it holds with the end users (case in point: nearly any popular US TV series can be found in some shape/format on You Tube). And in that respect, I imagine both YouTube and Google will soon feel more pressure from industry to police the content posted to their sites.
The Academy is continuing efforts with different developers for either clarifications/revisions to their current EULAs around Machinima, but I feel its a few more Daves that will really stoke the "who owns it and what can we do with it?" fires.
Yow.
The story continues: Dave goes on to contact Revver, who confirm that they removed his Machinima because they felt it was in breach of EA's copyrights. He then mails EA to get some further clarification from their end - and is now awaiting a response. If Battlefield 2, in fact, includes BattleRecorder for the sake of making Machinima, why is the final product solely EA's work? (yes, lots of answers here). Unfortunately, I don't imagine that Dave will hear from EA too soon (if at all), but if they do reply, they'll most likely point to the EULA that states the work is not his to post, nevermind enjoying all the $$$ he could possibly earn from it.
Again, no surprises here - its easy to see why Revver pulled the vid. Revver, for those not familiar with their service, allows the end user to share in the ad revenue associated with their posted videos. Some educated speculation: Because Machinima falls into the grey zone of questionable fair use/derivative work, Revver sees it as a catalyst of possible litigation given its unlicensed use.
Google and YouTube have similar "authorized copyright holders only" agreements in place, but the ad revenue derived is not directly tied to the videos themselves, nor is it shared with the person who uploads the content. This allows them to squirm around the "video=ad revenue" question. Therefore, Google and YouTube can be a bit more loose around the agreements it holds with the end users (case in point: nearly any popular US TV series can be found in some shape/format on You Tube). And in that respect, I imagine both YouTube and Google will soon feel more pressure from industry to police the content posted to their sites.
The Academy is continuing efforts with different developers for either clarifications/revisions to their current EULAs around Machinima, but I feel its a few more Daves that will really stoke the "who owns it and what can we do with it?" fires.
5 Comments:
Thanks for doing an entry on me man. Hopefully i'm not the only one nagging people about this.
The most frustrating thing about this is that i'm being ignored rather than people telling me what they know, even if it's nothing.
My email to EA probably reached some guy with no real links to either publishing or development. It's probably just a guy with some PDFs of instruction booklets and a Mac. This shouldn't stop him telling me that it's a grey area or i should ask somebody else.
The email I recieved from Revver basically says that something might by breaching copyright and they want me to convince them it's not or I have permission. I asked them what's wrong and how i'm breaching copyright and they haven't replied.
Some of the popular games for machinima (I'm thinking Sims 2 and Battlefield 2) are sequels of the games that really made machinima accessible with high speed internet and such. They've all had a full development cycle with developers aware of the machinima scene, so why couldn't they take 5 minutes out of a meeting to decide what's fair game for the community to do.
If machinima is remembered for anything 500 years down the road it will probably be for the struggles between its filmmakers and the single legal document, the EULA, which basically says you do not own the software. (actually I hope its remembered for better things, but this has been the hottest topic forever)
Unfortunately the harsh bottom line is in purchasing the software it does not give your rights to profit from the assets, nor engine, that ship with the game and therefore you (the filmmaker) are not entitled to any revenue generated by it.
If you want to make money as a machinima filmmaker I basically see two avenues (today anyways). One is to create machinima with purely filmmaker created and owned assets (and I mean everything, models, textures, maps, audio, etc. etc.) in an engine that you have full rights to (i.e. Torque) or create a non-revenue associated machinima series that gets such popularity that the publishers have to take notice (Red vs Blue, whose season 4 DVD is available in retails stores now).
It sucks, and I've struggled with it personally on my own productions, but its the way it is. Machinima is the poor mans production studio. Use it to share your stories or to show your filmmaking skills. If you want to make money then its going to cost you money, like any other medium.
Ken
Fascinating discussion on a topic that is not fully understood in the machinima community. Everyman Dave is just like all of us: he wants to make movies using game engines and let people watch them. His comment on game companies taking time to decide on the "fair use" of their games for machinima is a good one. I suspect that only a few companies are really willing to do that though (Valve, Epic are two of them).
There really hasn't been any kind of judicial decision on this issue. The recent legal paper on machinima and fair use (I think you blogged about it, Paul) suggests that if you use all custom content in a machinima, there is a chance it could legally be considered "fair use" since you are using the game engine, but the engine is not required to view the resulting machinima. Unfortunately, 3d is right. If you use the assets of a game it's probably not fair use. I'm sorry to say, but the machinima world is due for a wake up call on this issue.
However, Reallusion (creators of IClone, a real-time 3d animation program) have stated that they include a license for commercial use with the purchase of their product. This is the first machinima-related company I've heard of that offers a license. Maybe it will be the smaller companies like Reallusion that will start the ball rolling.
Good luck, Dave, in your efforts.
-gToon
"There really hasn't been any kind of judicial decision on this issue. The recent legal paper on machinima and fair use (I think you blogged about it, Paul) suggests that if you use all custom content in a machinima, there is a chance it could legally be considered "fair use" since you are using the game engine, but the engine is not required to view the resulting machinima."
Ultimitely this is the issue. If I rent or buy a camera, film or video, I can make a film with it and I own it, not the manufacturer of the camera. But I can't recreate my own version of that camera and sell it. That they own.
But that's the precedent set in that industry (film biz, tv etc). They make cameras with the sole purpose of recording moving images...for commercial use.
In the gaming biz, that's not the case (and why we're such small fish to them re: their bottom line). Buying the game off the shelf only gives you so much license (playing game, moding etc), it doesn't give us any license to gain commercially off of their product.
What we need (and part of what amas works on) is to get new types of licensing agreements that fit our needs while benifiting the game developers as well. One that allows us to create from but not redistribute their engine.
Licensing does come up when you sell or license a machinima tool set for an engine though, because then you are handing over the engine or part of it. That's why we have an agreement with Garage Games for the toolsets we're creating in Torque.
Unfortunately, I suspect that this issue will have to be decided in the courts. Let's see, something like the Hot Coffee Mod, in machinima style, forces someone to issue a lawsuit against the company, the company responds by shutting the machinima maker down,...etc.
or:
Someone, somewhere, tries to make some money off of some machinima, either in conjunction with the above idea (content too hot for television) or not, and again someone drops a stack of lawyers on the whole idea.
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