I’m not sure where to put this, so I’m putting it here because there was a small discussion in the FGD thread on S-Kill getting a job with Capcom; just move this wherever if it’s in the wrong spot. The previous discussion was about whether stickmaking, Street Fighter videos, and putting music on SF vids constituted copyright infringement. I’d argued that stickmaking and SF vids were fair use and not copyright infringement and that putting copyrighted music on SF vids was probably not fair use. I’m a law student at a big law school in Washington DC emphasizing in copyright, technology, and internet law, and I just got out of speaking with my Copyright professor about this. Turns out I was right on some stuff and wrong on other stuff.
My thoughts on stickmaking:
My professor’s thoughts: He agreed that this is generally fair use, that the Sega case says doing this is generally fine. However, if there were any hacking of the controller chips, or if someone created new wires or otherwise changed how the controller actually functions (not just the input mechanisms, like buttons and stick, which are fine), the question gets a little murkier, and he didn’t really have a good answer. If, like in the 360 controller, there’s proprietary software involved, the Digital Millennium Copyright Act (DMCA) might forbid hacking the controller to make a new stick, although it might also be that this fits under the DMCA’s reverse engineering exception. So stickmaking is totally legal under normal circumstances like making a case and putting in the pcb of a PS2 controller or buying something like the T5 stick and just changing the buttons and joystick; anything else, like hacking an Xbox 360 pad or adding new functionality to the controller, well, nobody knows if that’s legal or not.
My thoughts on SF vids:
My prof on this: I was wrong, making SF videos probably is copyright infringement. Capcom doesn’t just own a copyright in the game as a game, it also holds a copyright in the audio/visual work involved, and SF vids are copies of that. In a case called Williams v Arctic (where the maker of the game Defender sued someone who ripped it off), the Third Circuit said that the repeating parts of a video game are all copyrightable; the court turned down the defendant’s position that the player was co-author of the game (“author” being a copyright way of saying creator; if players were co-authors, they’d have rights in the game as well) in that the player interpreted the game in a way that might be different every time. My professor rejected the argument that SF vids are fair use by saying that they copy Capcom’s audio/visual work completely, which means the nature is actually the same (audio/visual work just copied and put out as another audio/visual work) and the whole thing is taken, and that’s a no-go for fair use. So Capcom owns the rights in the audio/visual work aspect of Street Fighter and SF players can’t claim that they are co-authors, which means basically we’re screwed on SF vids. That said, my prof said that the chance anyone will get sued by Capcom is less than none because the videos only help popularize Capcom’s products, and suing them would put a dent in their popularity and sales.
My thoughts on music in SF vids:
My prof: Using copyrighted music on a video without authorization is copyright infringement, so not only could the RIAA sue you, but Capcom could too; you’re taking the audio aspect of Capcom’s audio/visual work in the Street Fighter game. Again, however, there’s no chance that Capcom would sue because suing would only hurt them, although the RIAA is another story.
All this in a nutshell:
Stickmaking is completely legal as long as you don’t hack the proprietary software in the 360 pad and don’t create new functionality for the stick, and that isn’t for sure illegal, it’s just an open question.
SF videos infringe Capcom’s rights in the video side of the audio/visual work aspect of Street Fighter, meaning that this is copyright infringement, but there’s basically no chance you’ll get sued because SF videos only help Capcom’s sales. Sorry, guys.
Using in-game music in SF videos is also copyright infringement because it infringes on Capcom’s rights in the audio side of their audio/visual work in Street Fighter, and using other copyrighted music in SF videos is equally infringing. There’s no chance you’ll get sued by Capcom for using their music in SF videos, but using RIAA-affiliated copyrighted music (which is just about all the music you’d think about using) might be risky because the RIAA has shown that it will seek legal action against people who infringe on its copyrights regardless of the circumstances. That said, there’s some (admittedly quite old) music out there that is now in the public domain (for anyone to use, the copyright has expired), and there ARE bands out there who make songs under a different kind of license called Creative Commons that lets people use their works in most ways, with limits like you have to give the original author credit in your video etc.