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
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.
“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.
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 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 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).
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)