Legacy:Mod Copyright

The more popular modding becomes, the more often one sees mods based on existing ideas: movies, games, and so on. However, there is one problem inherent to all such mods: Copyrights.

What's Copyright?

Movies, games, mods, they're all copyrighted to somebody. What does this mean? The owner of the Wikipedia:copyright is guaranteed certain privileges to his material. This includes:

• the exclusive right to reproduction,
• the exclusive right to derivative works,
• the exclusive right to distribution and
• the exclusive right to public performance and display.

The most important one, as far as mods go, is the "exclusive right to derivative works." A derivative work is anything based on the original copyrighted work.

A simple example: You can't make an Unreal Tournament mod for Quake III. The game, along with the content, is copyrighted to Epic Games. Or... you couldn't make an Independence Day mod (you know, the movie...).

"But we are not making profit." 

It doesn't matter. The owner still retains the right to decide what is done with their material, and they even legally have to protect it in order not to create a precedent that may cause them to lose it when it really hurts. (And they still potentially lose money due to your mod even if you don't make any. But regardless of that, "damage" is not a concept that comes in where copyright is concerned.)

"What about fair use?" 

Generally, fair use is limited to a reasonably small portion of a work. The "portion" however depends on the work itself. Using a quote from a book on a website wouldn't constitute copyright infringement as it's one sentence out of thousands; copying an entire article from that website and using it is a different matter though.

What it comes down to is explicit permission. If you don't have it, you can't do it. Some people and companies will grant it, others won't. Nintendo, for example, is very strict with their quality assurance and doesn't grant permissions to mod developers. On the other hand, I recall a mod based on Square's Final Fantasy characters, and they had in fact gotten permission to use them. But you’re better off getting a letter refusing permission before you start a mod, than getting a cease-and-desist letter six months into development.

Why Does This Matter?

Besides being illegal there are several other consequences of copyright infringement to consider before starting a mod project. First of all, if you're reading this you're probably a coder, level designer, 3D artist, 2D artist, or have some other talent associated with game development. And, in the course of creating content, you will (or have) put in a huge amount of time and effort into your project. And, in the end, the only way of protecting your hard work from theft by others is copyright protection. So, with that in mind, let's consider a couple of scenarios.

Scenario A 

You and a group of other buddies have worked hard for over a year to produce a terrific mod. Then another group of developers comes along, rips off all your content, ports it over to a newer engine over the course of just a couple of months. And then, after it's release, this new mod slowly starts stealing away your fanbase.

How upset would you be? Wouldn't you invoke your rights as the owner of that content and do everything in your power to stop it?

Scenario B 

You own the copyright to a commerical game title that is your main source of income. You rely on that income to feed your family, pay your employees, and buy all your shiny new toys. Then, along comes another game that is a direct copy of your title. And, to top it all off, this new game is a mod, available for, gasp!, free to any person with an Internet connection. So instead of having to buy your game, gamers can download another game that's almost the same for free.

Now, is it any surprise why game companies won't hesitate to slap you with a "cease and desist" order? The newer the game, the greater the danger to mods copying that title of being stopped dead in their tracks. Obviously, this is less of a danger to mods based on older games, but not necessarily so. You never know when a company may be planning on, or is already developing, a sequel. And if that's the case, you better believe they'll come after you.

This is why the "but nobody's making profit" argument doesn't work. It doesn't matter that you're not making profit. What matters is that they're losing profit, and they may even lose their intellectual property rights if they don't protect them.

How Does This Affect the Community?

As a development community it is our collective responsibility to maintain its health. Not only is it in our best interests to share resources and insight, it is equally in our best interests to protect the property of its individual members. Tolerating the theft of others property by current mod teams encourages that behavior in fledgling teams. And who's to say it isn't your property that's stolen next?

Another factor to consider is the simple fact that people with the Talents necessary to publish mods are in very short supply. The is only a finite number of mods that can be in developement at any one time. Now consider a mod that's assembled a team of three or four dedicated guys that have put in hundreds of man-hours of work into their project. Then, six months into their work, the receive the dreaded "cease and desist" order from the game they're copying. All those man-hours of work are now wasted, when they could have been used by a mod project that has a much better chance of reaching production.

Producing a mod is an incredibly difficult thing to do, and only a miniscule percent of mods that get started ever see the light of day. And starting a mod that's a copy of another game or movie only adds to that difficulty and further reduces you chances of ever releasing, since you're starting with a big strike against you. So, every developer that joins the doomed project is one less developer that could have been used elsewhere.

The simple fact is that starting, joining, or even tolerating, mods that violate copyright law is detrimental to the community as a whole.

Getting Permission

The good news is that often the only thing necessary to receive the coveted "permission" is a letter to the orginal producer stating your intent to produce a mod based on thier work, and your reasons for doing so. When writing this letter, there are several recommendations to getting it noticed and receiving a positive answer.

When obtaining permission to use copyrighted material, get permission for an individual, not a team, to use the material. That way, if the mod team splits up, there is no ambiguity as to who has permission to continue use of the material.

How to Write a Good Letter

Snail mail vs. email 

That's a judgement call, and there's no way I can answer it. The only thing I can recommend, is to do your research. Find as much contact info as you can. Find out who you need to contact and what contact info this individual posts about themselves. Often times people will have a preference, so try and find out what that is. In either case, the rest of rules apply no matter what medium you choose.

Professionalism 

Be as professional as possible. Structure it as a business letter. Use your real name, not your game nick. (Sincerely, ThunderFart does not look good on a business proposal.) Use correct grammar, spelling, and punctuation (see below). The quickest way to end up in the circular file is to send a letter that looks like it was written by a 12-year-old. So, if your are a 12-year-old, or just write like one, find a buddy to write the letter for you.

Language 

Unless the original producer is located in a non-English speaking country and you are fluent in the language of that country, your letter should be in English. English is the international business language. If English is not your first language, find a buddy who speaks english fluently to avoid mistranslations.

Use compliments – do not brown-nose! 

But, do let them know that you picked their game or movie because you like it. It's fun and entertaining, and you want to continue that tradition with your new mod. This is especially effective for an older game or movie that is no longer in production.

Not for profit 

While being non-profit won't matter if you fail to ask for permission, if you do bother to ask often this is the key to getting that permission.

Educational 

Do not say that your project is for a school project unless that is the case. However you are more than welcome to say this project is for your "personal" education. This is another factor that might soften them up a bit.

Credit 

If you're going to copy the game, then copy the game. Make it completely obvious what game you are emulating and give the original producer full credit for the original game.

Summary

I hope that this article doesn't completely discourage you from making a mod from an existing game or movie. But, I do hope it discourages you from doing one without the permission of its original owner. Copyright law is there for a reason. And before you decide it's okay to be a thief, please think long and hard about the consequences of your actions, and how you would feel if it was you being stolen from.

Related Links

• Wikipedia:Copyright – an overview
• http://www.copyright.gov/circs/circ1.html – US Copyright Office, "Copyright Basics"
• http://www.patent.gov.uk/copy/ – UK Patent Office (Copyrights Section)
• OpenUnrealModLicense – a GPL like license without the possible issues with the closed source runtime (UnrealEngine)
• LesserOpenUnrealModLicense – the Lesser GPL like license
• Making Mods

Discussion

BM.Deathwind: I do plan on revising/editing this. So list your suggestions/questions.

Cookie: Excellent Deathwind. This article was desperately needed. I went ahead added a few more sections that I felt elaborated on the importance of this issue. Hope you don't mind.

BM.Deathwind: Impressive!! :) I really like what you did...

RegularX: Nicely written. The "not making profit" myth really needs to be plastered around everywhere. A lot of mod groups are fans of X, whether X be Jason movies or Alien movies or Starcraft, etc., and realizing such concepts might avoid a legal letter or two.

OverloadUT: What about the topic of the copyright of the mod being developed? I expected that to be covered here, but it's not. What I mean is: If I release a mod and include a license that says "You may not use this to make dirivative works or modify this code" and then someone does, do I have grounds to press charges? I wouldn't be surprised if you automatically give up all rights to your project because it's released for an engine to which you do not have a license. Does anybody know the answer to this?

Mychaeel: What's written here about other people's rights to their intellectual property naturally applies to mods as well. I've changed the first paragraph to make that more obvious. You actually don't even have to include a license that states that you own the copyright – you do, by default.

OverloadUT: Okay, I've got a more tricky situation. I'll use a real life relevant scenario: I'm making a CTF4 mod, which adds four team support to UT2004. This is nice because it allows anyone to make a 4 team mod by using my gameclass as a base. But if on release I said that no one is allowed to make a mod that uses my code as a base, does that hold? The difference being that I have not created anything particuarly innovative. "4-team gameplay" is probably not something I can copyright. And if someone makes a mod that sits on top of my code without actually changing my code or stealing any of my code, are they doing anything (legally) wrong? Please note that this is simply a question for the sake of knowing the answer. I don't really have an issue with someone using CTF4 as a base for another mod.

Foxpaw: It not being innovative or revolutionary is irrelevant. If you wrote a book that was essentially an age-old story rehased, you still have copyright over it - even if it's "nothing new." Whether or not it's innovative is an issue that applies to patent law, which is not the same as copyright.

However: As for whether or not they are doing anything wrong if they derive off of your classes and don't include any code: That's a bit tricky, but I think it would be legal - after all, their code only makes reference to your work, much like Coles notes, or a book report might make reference to your work.

However, it's not quite the same, since one can still read (make use of) a book report without the book in question, while a person would not be able to use code that referenced your code without having your (compiled) work. In addition, one might logically argue that their package is linked to yours at runtime by the virtual machine and thus constitutes a derivative work, but I doubt many judges would understand what that means, so.. err, that might not work. ;)

You could, in that case, maybe argue that the license does not allow them to view your code, which would be required in order to derive from the class. (Unless they claim they just "guessed" the function names, etc. ;))

A person might also be able to include a clause specifically forbidding such use, (not sure how well that would stand up) and you could certainately restrict redistribution, though then they could still link and state that you had to download the CTF4 mod separate from theirs.

Hrm, and if you did that, you could change function and variable names with each new release, and if the license only allowed to most recent version to be mirrored, then I SUPPOSE you could prevent such behaviour that way. Though that's probrably not ideal.

In the end I think it would mostly come down to your (or your lawyers') ability to convince the judge. It seems like a person OUGHT TO have control over that sort of thing, but the challenge would lie in explaining OOP and how it relates to what the person has done.

Foxpaw: Err.. doh! Just thought when I put that edit in; console manufacturers like Nintendo have a legal ability to control what games are released for their platform: so there is some legal background to the notion that a copyright holder can have some control over what software is run on their platform - you would only have to argue that your copyrighted work is being used as a software platform for another piece of software.

Mychaeel: You can keep people from creating "derivative works" of your code (and what's a subclass if not, literally, a "derivative work"?). However, you have no right on the "four teams" idea just because you implemented it first – that's the difference between copyright and patents. You could (probably, sadly) patent the idea of having four teams instead of two fighting against each other, but you cannot copyright it – just your code that implements it. Anybody else can come up with the same idea and legally implement it on their own.

OverloadUT: Okay, that makes sense. Thanks for the answers! I think I was getting patents and copyrights confused. I have another situation to ponder though: Let's say I wanted to add custom loading screens for my mod, based on what map is loading. To do this, I would remember that Jailbreak did that very thing, so I would look at that code and see how they did it. If I implemented that code in to my mod without permission, is that copyright violation? What if I asked for permission and they denied it? I mean, I've seen how the code works now, and I could "rewrite" the code but since their way is the best way to do it, it might end up looking like the exact same code. How does that work? Can you copyright the method that you used to implement a feature? That sounds more like a patent to me. And if you can copyright the method, how much code has to be copied before it's considered stealing the source? In this example, the loading thing is only about 5 lines of code. It hardly seems like copying, but I wouldn't have been able to come up with it myself. What if it were a much larger chunk of code, like the GUIHook system that Jailbreak uses? (Can you tell I've learned a lot from Jailbreak? You guys are geniuses.)

Foxpaw: No. Once again, that's a patent which is different. However, I wrote up the necessary bits required to do that on the wiki long ago. If you copied the code from another mod, without permission, that might be a violation of copyright. If you decompiled or reverse engineered their code without permission that might also be a violation of copyright. (I say might because it will vary based on what sort of license the mod was released under, and the laws in your particular country.)

As for it ending up looking the same.. well, that's a bit of a tricky one. From a moral perspective I would say no. However, one has to consider: if you read a book, then wanted to write a book on that topic, but you wrote exactly what they wrote because you felt that was the best way to express it: would that be copyright infringement? It would, of course, so the same logic could probrably apply to this situation.

However, considering that I wrote up all the info you need almost a year ago on the wiki, one could reasonably argue that the methods are public knowledge. See Vignette. I didn't want to make it tutorial-like, so there isn't any "hand holding" per se, but all the information you should need is pretty plainly laid out.

Mychaeel: Being the one who made that Jailbreak JBGUIHook code, I assure you that Vignette has little to do with it. – OverloadUT: If, just for the sake of the argument, the Jailbreak team didn't give you permission to use their code, copying their code would be exactly what copyright does not allow you to do. The difference between a patent and copyright is just that copyright would allow you to re-invent the same technique on your own without copying it, while a patent means that even if you thought it up all by yourself and perhaps didn't even know about the patent, you still wouldn't be allowed to use it.

Foxpaw: Err, yes. I was referring to the custom loading screens. I don't know what the Jailbreak "GUI hooks" refers to.

Mychaeel: I'm confusing my own code here... JBGUIHook is responsible for Jailbreak's custom menu music and the "Add-Ons" tab which is dynamically added to the game setup screen. Jailbreak also replaces the loading screens by map-specific custom ones, and that code is what I was referring to as having little to do with the bit that's written up on Vignette.

Foxpaw: Err. Hmm. May I look at the code for Jailbreak to see what you have done there? I don't see how else one could alter the loading screens without making use of the Vignette class, but I'd be interested to see what you have done there.

Mychaeel: Jailbreak integrates into the game as (yet another) game type and thus doesn't have it's own .ini file. Thus, Jailbreak's implementation of the static GetLoadingHint function modifies the existing UT2K4ServerLoading object (subclass of Vignette) to replace the default UT2004 loading screen rather than creating its own Vignette subclass and registering it in an .ini file. (I'd link you to JDN for the code, but unfortunately it's down at the moment and I won't be able to look into that problem until later tonight.)

Teams and Copyright Permission

GRAF!K: What would happen if a mod team got permission to use copyrighted material, then broke up? Then you would have a bunch of modders fighting over the copyright permissions. What would be the legally correct thing to do?

I'm going to try and get permission from Hasbro to use Nerf© material in my mod, but I thought I would consider this a bit first.

Mychaeel: Permission to use somebody's copyrighted material sticks with a certain mod concept. So if some people of that team continue working on the very same project,the copyright holder won't even care. However, if each faction of the team starts a new project only roughly along the lines of the old, you have to inquire for permission individually again.

Foxpaw: What if the team were to split in half, and both halves wanted to continue production from where they were before? Where does the copyright lie in this case? Do both parties retain copyright priviledges as they had the copyrights when they were part of the original team? Is the copyright retained by whichever team has the name that the copyright was originally assigned to, and thus belong to whichever team contains the person who founded the team?

RegularX: Most companies would have you sign a legal document that would explain exactly how they define the party being granted the license. Quite possibly both would lose copyright privs, have to ask the holder again (who would probably just be annoyed and drop it at that point). Or it would be in the hands of one principal person (the mod founder). Point is, a copyright license is a singular entity, it doesn't duplicate due to the number of people on a team, you can't re-divide it up after it's granted.

GRAF!K: The point is, though, that after a team split up, everyone would claim that they own the team and therefore the copyright.

Mychaeel: At the end of the day it's the copyright owner's decision who gets permission to use it for what purpose. If two factions end up bickering about permission that was previously granted to the entire team for a certain project, chances are that the copyright owner behaves as RegularX suggests and makes clear that the original permission was only granted to the entire original team and project, not the two halves of it. If in doubt, ask the only entity that has a say in this: the copyright holder.

Foxpaw: Okay, I have another question about teams and copyright: suppose you are working on a mod/game/whatever with a team and part of the team breaks off, including some of the coders. The code is mostly in the tweaking stage, so most of the code has been touched in some way by every coder. The coders on the part that has broken off then claim that the original team cannot use the code because it is, at least partially, their intellectual property. How does this work? Do the breakaway coders have a valid argument, or how would that be settled?

Mychaeel: In a real-life business relationship, there'd be a legal entity (the "company") that owns the code, and all coders would have signed a contract that expressly states that the code they produce for the company becomes the company's property. If a coder (or many coders) leave the company, the code ownership sticks with the company. It'd be a separate question who the company itself would stick to; possibly one that'd have to be settled in a law suit.

Matters are obviously different in a mod team situation that was never formalized in any way. Given the lack of any legally binding contract between the people from the original mod team, they all retain ownership of their own creations; and if part of the code has been worked on by several people, none of them has the right to individually use it without the other involved coders' permission.

Haral: The law will rarely factor into situations like this... Especially considering how incredibly hard it would be to prove who made what. The only real standard for a situation like that is a moral one. A decent argument could also be made that their work was made as part of that team, and became open for use amongst that team from the moment they sent the code out. Kind of like posting code on a public forum.

Really though, when it comes to inner-team conflicts, the closest to law you might get is a daytime "Judge" show.

Uncommon: Don't forget trademarks, and how that's different from copyright. People often confuse the two. The name "Unreal Tournament" is a trademark, while the content of the game is copyrighted. The characters in the game, and their names, may also be trademarks - particularly the more recognizable ones like Malcolm or Gorge. Copyright would apply to the actual skins and models of those chararcters.

Foxpaw: True, but I would expect that trademarks are fairly obvious - I can't see a a modder who respected copyright being unaware that they would need permission to use the term "Quake" as the title of their mod, or conversely a person worrying about whether or not they need permission to call their weapon mod, "the BowFlex."

Draconx: You would have very little success trying to enforce trademarks on a game character name called "Malcolm", reasonably common names like that having their trademarks enforced could end up with someone saying something like "You are to cease using your name where other people can see/hear it". But with a character name like Xan you likely would be able to enforce your trademarks on.

Foxpaw: But remember, that trademarks are only enforceable in the market to which they apply. So, for instance, if you did have the name Malcolm trademarked for video games, it would not invalidate a person's ability to be named Malcolm, or even another company from naming their products Malcolm, so long as it wasn't within the same market. So for instance a vacuum cleaner called "Unreal" would be perfectly legit.

However, it is probable that you couldn't trademark the name Malcolm, but you probrably could trademark the name Malcolm used in conjunction with the likeness of that character.

Uncommon: My point was just to call attention to the difference between the two. People often say copyright when they mean trademark.