Let’s Talk About Machinima – Part 2 of 3

Let’s Talk About Machinima is a 3 part series. The first was Machinima from the perspective of the Machinimist. The second tackles Machinima from the point of view of the game developer. Finally, the third will be a bit of a forward thinking proposal on Machinima.

Part 2

“So What Should I Do About Machinima?”

If I could boil down this article into one statement, it would simply be:

Machinima can be a developer/publisher’s best friend or worst enemy.

Simple and peculiar as that statement may be, it addresses the entire issue. Machinima can bring more fans and players to a particular game or even create an entire community around a game. On the other hand, allowing people to freely generate derivative works from your intellectual property can hinder your ability to enforce your rights in the future. It is the essence of the double edged sword analogy.

Machinima as a Friend: Publicity

I think it has become readily apparent that machinima can do a lot for game publicity. Take F.E.A.R. and the machinima P.A.N.I.C.S., for example. I know I downloaded the F.E.A.R. demo because of P.A.N.I.C.S., and ultimately bought the game. Another example, the ever growing cult of Halo has definitely had some boost in membership from Red vs. Blue (and vice versa). And those are just two examples. Simply put: A well-crafted machinima can draw people to any game. (The caveat being well-crafted.)

Machinima as an Enemy: Intellectual Property Rights

On the other hand, letting the general public do what they will with your game engine can be seen as an unwillingness to enforce your rights to your intellectual property. If you are seen in this light, then you may be unable to enforce rights in the future. What does this mean specifically? Well, let me use an example. Let’s say I write a story that becomes very popular. All of a sudden, hundreds of people start writing side stories about my characters. I choose not to enforce my rights. Later, yet another one of those side stories becomes hugely popular and starts making a lot of money. If I were to sue to enforce my rights, the court would likely ask why I hadn’t bothered to enforce these rights on anyone else. Profit alone is not enough of a reason to pursue or ignore derivative works. A game is no different than a story, and the level of derivativeness is largely based on how much of the game is incorporated into the machinima. For example, Red vs. Blue would be less derivative than a machinima about the Master Chief.

So what is a Developer to do?

Is there a way to have both the publicity and the rights? Of course, and the answer is licensing. So long as you enforce the use of licenses for your work, and pursue those who won’t make the effort to secure a license, then you should be seen as enforcing your rights. Of course, you should have your attorney draft the license.

This just leaves the issue of royalties. For a contract like a license to be valid, both sides have to tender “consideration” for the deal. You are tendering the license to use the game for machinima. The recipient of the license needs to tender something of value. In the case of a machinima license, asking for something as simple as $5 or $10 dollars for non-commercial use should be thoroughly sufficient. Of course, if there is a commercial use involved, a developer or publisher is likely going to want more than token consideration. On the other hand, a developer who wishes to have no machinima made can simply refuse all license requests.

The secondary part, though, it to actively protect your rights by monitoring sites like YouTube for unlicensed video works. As part of this, the license will likely need to detail the name of the person who receives the license as well as a screen name they plan to post it under. The developer needs to send removal requests to the site for all unlicensed works. Even if they are not removed, keeping a record of actions to get them removed may satisfy some courts in terms of the base level of action required to maintain protective rights to the work. As a general rule, requests that result in no action are worth more than not sending requests at all.

Check back soon for Part 3: “So, Where is Machinima Going?” Part 3 will detail my thoughts on making this process easier for both the Machinimist and the Developer while keeping everyone’s rights intact.

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It only constitutes commentary on legal issues,
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About Mark Methenitis

Mark Methenitis is an attorney in Dallas Texas. Mark received his Juris Doctorate and his Master of Business Administration from Texas Tech University and his Bachelor of Arts from The University of Texas.

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