Copyright infringement case studies

New York Clipper, 1906

People infringe on copyrights, even with the threat of lawsuits.  The Internet makes it easy to disseminate and copy information and the copyright law is often vague, disregarded or misunderstood. Furthermore, technology encourages creation, simple access to the Internet, and easy infringement. A copyright, whether filed or not, protects the rights of the creator (Stim, 2010). As a copyright holder, you own a “bundle of rights” which includes the rights to create copies of your work, create derivative works, distribute copies, and the rights to public performance, display, and digital audio transmission (Waxer & Baum, 2007).  “Fair use” opens the door for sharing and building upon great ideas, yet the law does not specify details of what constitutes this copyright exclusion and often pushes the door into the courtroom (Waxer & Baum, 2007). Although, the Copyright Law protects creative work as soon as it is in a tangible form, filing for an official copyright secures greater protection (Stim, 2010). If you need to go to court to protect your rights from an infringement, a copyright must be registered with the U.S. Copyright Office to recover certain fees and claim monetary damage (Stim, 2010).

A serinette is a miniature French barrel organ, also called a bird-organ, which plays small wind pipes. The name bird organ comes from the way that these organs were used to teach birds to sing. Serinettes existed that could play four or more different tunes.

The first case study to be analyzed presents the following: “you have created a Macromedia Flash game that tests how long it takes for a player to recognize a song. A player listens to several songs for 3-5 seconds, and then has 10 seconds to select the songs from a list. The theme from Jeopardy plays in the background while the player selects the songs.”

Macromedia Flash (now Adobe Flash) is a software program for creating animated video and multimedia content with interactivity (Adobe Flash, n.d.). In this case, you have used Flash to create a game. Copyright was formed to protect the written word and did not originally address the application of that law in the newer fields of Internet game creation. However, copyright covers the tangible creation of your works, which includes aspects of a Flash game creation (Flash Rights, n.d.).  Copyright does not protect ideas, or the name or title of a work, including the name of a game (Flash Rights, n.d.). “Nor does copyright protect any idea, system, method, device, or trademark material involved in developing, merchandising, or playing a game…[or] prevents others from developing another game based on similar principles.” (Copyright Law, 2011, para. 1). While this seems to be directed at board-type games of the past, the law is still applicable to multimedia games. There has to be a literary or audiovisual aspect of the game to copyright (Jordan, 2009). The code you write to create the game can be copyrighted as a written form of expression, much as a computer program is protected (Jordan, 2009). The creative design of the images in Flash could be considered artistic creation (Flash Rights, n.d.).  If the music is original, it would be copyright protected. Based on copyright law, you can develop a game even if it is “based on similar principles,” which would seem to indicate that even though this game is similar to “Name that Tune,” you could still copyright the written and visual parts. However, a copyright protects the expression of an idea, and a court could deem this infringement. Once your game is on the Internet, your game could be taken down under the Digital Millennium Copyright Act if suspected of copyright infringement (DMCA17 U.S.C. §512 as cited by Video Games and the Law). This is a law that protects sites that sell applications for cell phones.

Regarding the issue of music, you must not use any copyrighted music without acquiring permission and/or a license from the copyright holders, which could entail the musician, the studio, the distributor or more. Recorded music is not in the public domain, only the sheet music and lyrics produced before 1923 (PD INFO, 2012). Websites such as PD Info provide sources of royalty-free music (PD INFO, 2012).  The “Jeopardy” tune is copyrighted and protected by law. Using any portion of the song would be infringement. Fair use of music for educational purposes allows only 10% or up to 30 seconds of the work (Waxer & Baum, 2007). However, educational use within the narrow safety afforded by “Fair Use” gets blurred when use includes online courses where time constraints and downloadable aspects impact “for educational use only.” While the game idea is safe to use, the main tune, Jeopardy must be licensed before use, and all the tunes for guessing must be royalty-free or licensed.

If you create a music guessing game with the Jeopardy tune and music clips from copyrighted music, you have infringed on the rights of the copyright owners. This is true even if you have no plans to profit financially. It is not advisable to use this game in your portfolio for a job since that will only highlight your inability to legally maneuver within the complicated intellectual property laws. It would also indicate your lack of integrity and honesty. Giving this game to a friend does not protect you from copyright infringement, nor does posting a “link only” on your website. Even though a hyperlink is a fact, (which could find a safe harbor in fair use) it becomes illegal when that link causes the user to infringe on someone else’s copyright (Waxer & Baum, 2007).  In this case, you are guilty of inducing others to use your Flash game through the link you provide. When music provider, Grokster claimed that they were innocent of infringement it was based on their contention that they did not store music files on their servers. But they provided access to others where the music could be illegally downloaded and the courts ruled in favor of MGM (Supreme Court Rules MGM, n.d.).

Image Credit

In the second case study, you are making a video DVD yearbook, which includes popular songs, TV, movie and news snippets, and your own video images. You plan to sell the yearbook online and get all the legal permissions required to make and distribute this impressive yearbook. The first hurdle is in choosing music for your DVD that reflects the year, and does not infringe on copyright. There are no sound recordings in the public domain, even though music and lyrics published before 1923 are n the public domain (Waxer & Baum, 2007). Besides, this is a yearbook, which would include current music, and therefore, you will have to get permission to use the music. This process can be costly as well as time consuming since the rights of the vocalist, musician, lyricist, composer, and producer may have to be contacted for each song (Waxer & Baum, 2007). You will have to write a letter to each of them asking for permission. Include your name and short but descriptive reason for wanting to use the music. Include a timeframe for your project, the price of each copy and lastly, a signature line for the copyright holder. If you do not hear back, do not presume that means you have permission. The copyright holder has rights even without responding to your letter (Waxer & Baum, 2007).

The same obstacles that you faced with the music is likely to be equal in getting permission for snippets of TV shows, movies and news. The copyrights can extend to include producers and artists. If the movies are in the public domain, you are free to use them. (Most likely this will not be the case for a yearbook unless you doing one for your grandmother in 1923.)  Otherwise you will have to get permission. In the case of documentary filmmaker, Jon Else, he decided to edit out a 4.5 second scene of The Simpsons rather than pay $10,000 to Fox Broadcasting, the parent company who owned part of the copyrights. Else had obtained permission from the creator of the Simpsons, the producer, but hit the big price tag with Fox.  Even though it would be fun to have all those memories included in a DVD, and they may even encourage the buyers of your yearbook DVD to purchase the original movies, profiting the movie producers, actors, etc., the hassle and cost of obtaining rights may not be worth it. This is probably a case where copyright is too restrictive.

The final element of your DVD yearbook includes your own private images and video. You own the copyright to these images and videos and those rights will then be assigned to you. All permissions that were granted to you for this DVD yearbook should be credited as requested by the copyright holders. You must have received authority and permission from each copyright holder. A sample permissions letter follows, although large companies probably use an internal legal form for such things.

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Re: Permissions

Dear [copyright holder]

I am making a DVD yearbook for Northwood College and would like permission to use a clip from your movie, [name of movie] as a memento of our college years. The scene I am thinking of is [name scene]. If you do not hold the copyright or if there are numerous owners, please let me know. We plan to sell the yearbooks for $10, with a $2.00 discount to students. All profits will cover the cost of the materials and we will only produce 200 copies. We will credit your work at the end of the DVD in any way you prefer.

Thank you for considering this request.

Sincerely,

[name]

I grant permission for the use of the above referenced material in the manner described and no other rights are allowed.

Signature___________________________________Date__________________

References

Adobe Flash Professional CS6. (n.d.). Retrieved from http://www.adobe.com/products/flash.html

Copyright Law of the United States. (2011). Copyright Registration of Games. Retrieved from http://www.copyright.gov/title17/

Flash Rights. (n.d.). Retrieved from http://www.flashrights.com/copyrightbasics.htm

Jordan, W. (2009). Evolution of the tetromino-stacking game: An historical design study of Tetris. Retrived from http://wiki.igda.org/images/e/ea/Will_Jordan_-_Evolution_of_the_tetromino-stacking_game.pdf

PD INFO Public Domain Information Project. (2012). Retrieved from http://www.pdinfo.com/

Stim, R. (2010). Stanford University Libraries: Copyright & Fair Use. Overview and Resources. Retrieved from http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/

Supreme court rules MGM Studios v Grokster. (n.d.). Retrieved from http://www.copyright.gov/docs/mgm/index.html

Video games and the law: Copyright, trademark and intellectual property. (2011). Retrieved from http://www.newmediarights.org/guide/legal/Video_Games_law_Copyright_Trademark_Intellectual_Property%20#What%20parts%20of%20the%20video%20game%20are%20copyrightable?

Waxer, B. M., & Baum, M. L. (2007). Copyright on the Internet. Boston, MA: Thomson Course Technology.