What AJ Learned About Machinima Law Today

Today kicks off Stanford University’s Play Machinima Law Conference with panels of machinima artists, copyright lawyers and legal representatives from Blizzard, EA and Microsoft.

Machinima is one of those hazy areas of artistic expression not quite covered by copyright law and not quite insignificant given how many people have jumped on the bandwagon. Kotaku first covered the topic back when the New York Times Magazine did a piece called “Xbox Auteurs” that loosely touched on successful ventures like Red vs. Blue and Strangerhood. Since then, we’ve seen everything from filmmakers to Family Guy writers getting in on the machinima scene.

Stanford’s gathering of legal people, law professors, game studies students and machinima artists aims to address some of the grey areas in this emerging art form. It’s also an opportunity to screen some bitchin’ machinima. And, for me, it’s a chance to earn some extra credit in my Game Studies: Issues in Design, Technology, and Player Creativity class since I’m ditching next week to make the Namco Bandai Gamers Day event.

Here’s what I learned:

Machinima is more than just Red vs. Blue
For the longest time, I thought “machinima” was limited to fan made videos people posted to YouTube. I didn’t realise that the word also includes serious documentaries like HBO’s My Second Life: The video diaries of Molotov Alta and licensed advertisements like the World of Warcraft SlimJim commercial. Pretty much any endeavor that uses in-game content to create original narratives or otherwise creative works counts as machinima – even if it’s dumb music videos.

It’s Not Always Fair Use
Parody law in the United States gets kicked around a lot, especially when something offensive but funny hits the Internet. However, because most games require users to sign terms of use agreements, parody law doesn’t protect Red vs. Blue from Microsoft (that, and Red vs. Blue is satire, not parody). There are some exceptions to this, though, depending on the developer. For example, Second Life “owner” Linden Lab didn’t feel the need to sign a release for the HBO documentary because to them, their game should replicate real life conditions for documentary filmmaking. You wouldn’t have the mayor of New York City sign a release before filming the streets of New York, right?

Blizzard and Microsoft Actually Aren’t Opposed To Machinima
You’d think the two biggest playgrounds for machinima artists would be annoyed at all these artists cashing in on their product; but actually, both publishers have reached out to machinima communities. They’ve set up (and revised) guidelines for machinima creators to allow would-be artists some control over their creations and some freedom to distribute them. Here’s Microsoft’s and here’s Blizzard’s. Compare and contrast.

The Big Question: Can You Make Money On It?
One of the main torts of copyright law and the defining issue for machinima to address (at least in this conference) is whether or not these productions are for profit. Both agreements from Microsoft and Sony draw a definite distinction between noncommercial and commercial use of their games to create machinima.

This is kind of a problem for machinima artists because many of them would certainly like to profit from their hard work (and some of them definitely do). There are ways to do it without provoking a lawyer-storm from publishers, such as securing licensing agreements or even just asking permission to submit a machinima film to a contest that’s not affiliated with the game before actually doing it. But many machinima artists are under the impression that if they just stay off the radar, they can get away with selling t-shirts, DVDs and other items that tie into their work and (sort of) trade on the game’s popularity. Or, they think, they can play the Fair Use card if they satisfy at least one aspect of copyright law and escape litigation.

The lawyers here at the conference today say that this is not the way to go. Fair Use is ambiguous even outside video game land – and even if the “actual damages” threat doesn’t sound so scary, it is still a serious legal problem, especially if you’re just a gamer who wanted to make a fan video of Master Chief rocking out to Jesse McCartney’s “Right Where You Want Me.” The legal rights for machinima haven’t been spelled out yet, even with the few case laws on the books for Second Life – so do not assume anything, or at least try not to act surprised when the lawyers call you up.

The Stanford Machinima Law conference is going on now at Stanford University. You can check out the agenda here at this website that really seems to hate Firefox. Audio and video of the event will probably be posted at some point, too – but because it’s Stanford, I wouldn’t bet on it happening for another month or so.