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, they’re all copyrighted to somebody. What does this mean? The owner of the 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 off of 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 still potentially lose money due to your mod even if you don't make any; or they may even lose their claim to their intellectual property if they don't try to protect it. 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.

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.

Comments

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.

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.

GRAF!K: This seems interesting stuff to me... but I'm not sure how to refactor it. It seems we haven't reached a definate enough conclusion to summarize it.

So, I'll try to refactor it here. Everything in the below blockquote is "publicly editable" and not my personal post property, so please correct it where due.

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.