How To Make Machinima Without Getting Sued Blind

Thanks to online video sites and the mass market appeal of games like World of Warcraft, “machinima” (movies created from video footage captured within a game) has become incredibly popular, viewed by millions daily. (The videos hosted by alone garner 35 million+ views in a single month.) For all this activity, however, some very basic questions remain unanswered, among them, who owns the copyright for a fan-made machinima? And if you’re a talented machinimator with a large online following, can you make money from your work without getting sued? Last weekend those topics and more were the subject of intense conversation among lawyers, professors, and professional machinima makers, in a conference at Stanford Law School’s Center for Internet and Society. Here’s several takeaways useful for people working with machinima:

Don’t Assume “Fair Use” Will Protect You

I assumed that most machinima would be protected by copyright law’s fair use doctrine. But if the lawyers come calling, fair use is only a defense. “If you’re going to claim it,” as Sean Kane, Principal with Drakeford & Kane put it, “you better not be risk averse.” Shane McGee of Sonnenschein Nath & Rosenthal, a lawyer who’s represented World of Warcraft developer Blizzard on a number of non-machinima cases, advised machinima creators not to rely on fair use at all, because there’s no common agreement on its application. However, Microsoft lawyer Matt Skelton still recommended that machinimators read up on best practice guidelines for fair use in online video, and consider getting fair use insurance.

Unauthorized Music Is a Huge Red Flag

This point was repeated by several lawyers: While many game companies actively encourage machinima made from their products, video creators are much more likely to get in trouble for using copyrighted music in the background, which attracts unwanted attention from the record labels. (One alternative worth considering: music under a Creative Commons license.)

Read a Game Company’s Policies on Machinima — and Consider Talking With Them

A number of the top game companies have crafted usage rules around machinima. In fact, Microsoft’s Game Content Usage guidelines drew a lot of praise at the conference. (EFF’s Von Lohmann even compared them to the free software GPL license.) World of Warcraft developer Blizzard has machinima guidelines as well. But Von Lohmann strongly advised machinima makers to also read the End User License Agreement for the individual game used. Microsoft’s EULAs recognize fair use, he noted, while Blizzard’s do not.

While most of these rules forbid unauthorized commercial use, creators can still make individual agreements directly with the company. “I don’t want people to think just because we’re a big company that we’re totally unavailable,” said Microsoft’s Matt Skelton, even pointing to a contact email (gamevids at microsoft dot com) for would-be machinimator pros to pitch the company. (Halo machinima developer Rooster Teeth, for instance, has a commercial deal with Microsoft.)

Don’t Panic

Though EFF’s Van Lohmann often advises machinimators worried about the legal dangers of publishing their work, he said, “I have not heard of a machinima creator being hunted down by copyright lawyers.” Regardless, “Copyright damages don’t scare me that much,” Von Lohmann added, because they’re not likely to be excessive. (“That only applies to a noncommercial machinima built on one game product,” he clarified by email afterward, “and which has a plausible fair use defense. If it’s a commercial effort and doesn’t have a good fair use story to tell, then I’m plenty scared.”) Copyright cases may also incur statutory damages ranging anywhere from $750 to $30,000, but Von Lohmann said it’s hard to imagine a court hitting a non-profit/non-commercial machinimator with a penalty in the upper range. Some game company EULAs include a clause that if a case is decided for the plaintiff, the defendant must pay the companies’ legal fees — but even then, judges will sometimes toss that stipulation.

Despite all the lawyerly advice, however, there’s been little legal precedent set around machinima, and as such, numerous questions remain unanswered. For example, does machinima really qualify as “non-commercial” if it’s uploaded by a channel owner on a commercial service like YouTube? And while many companies have EULAs with a clause that retroactively claims license to machinima made with their material, what happens if the next big viral video machinima is made by a minor? As Roxanne Christ of Latham Watkins LLP pointed out, minors don’t have the capacity to enter into binding contracts in most states, and cannot even assign away their IP rights in California without a court-supervised proceeding.

Just two of many concerns worth debating at the next machinima and law conference — unless, that is, they’re decided in court first.