Over the past two decades, machinima, the use of real-time computer graphics engines (usually video games) to generate cinematic works, has seen rapid growth. Companies such as Rooster Teeth, which produces series like Red vs. Blue using Microsoft’s Halo series and The Strangerhood using EA’s The Sims 2, have even successfully turned their machinima productions into commercially successful productions. However, the fact that machinima involves the creation of necessarily derivative works based on material covered by others’ copyrights results in clear complications. Whether these works are created by individual fans or by growing companies, machinimators must be aware of their work’s potential to violate copyright law and of different ways that they may counteract or mitigate the potential for liability.
If a claim for copyright infringement is brought against a machinimator, he or she may be able to raise an affirmative defense under the fair use doctrine. This doctrine states that copyrighted works may be used for purposes such as criticism, comment, news, reporting, or educational purposes without such use constituting copyright infringement. It is dependent on the following four factors:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
Perhaps most importantly in the case of machinima, courts have regularly held that parody falls under the fair use doctrine. Many machinima projects are created as parodies of the video games used to create them or of video games in general. The aforementioned Red vs. Blue is one such project, with much of the series acting as a parody of first-person shooter games in general and the Halo series in particular. In such cases, the fair use doctrine might be a viable defense for machinimators who may find themselves party to a copyright infringement lawsuit, particularly if they have not attempted to commercialize their project. However, given the fact that there has been little to no litigation related to potential copyright violations in machinima, there are significant risks associated with relying too heavily on “fair use.” There is no real consensus about how it would be applied in these kinds of cases, and some attorneys in the field have even recommend that machinimators not rely on “fair use” at all.
Fortunately for machinimators, they often will not have to rely solely on the fair use doctrine to defend against copyright infringement claims. They may be able to license their content either through standard end user license agreements or through negotiating more specific licenses with copyright holders. In terms of general licenses, many video game companies like Microsoft and Blizzard, the company that produces World of Warcraft, offer general licenses that allow machinimators to use their products to create content and make it available online. Of course, these rights come with certain limitations. For example, Microsoft’s Xbox content license, the Game Content User Rules, state that machinimators cannot sell or otherwise earn compensation for their content, though the license does allow users to earn revenue by participating in advertisement programs on YouTube or the streaming site Twitch. As such, in order to commercialize machinima content legally, machinimators will typically have to reach individualized agreements with copyright holders. Rooster Teeth has taken this approach with Red vs. Blue, having reached an agreement with Microsoft that allows it to sell hard copies of the series and related merchandise and even sell individual episodes through Xbox Live.
In short, despite the inherent risk of copyright infringement associated with machinima, prospective machinimators do have options. Particularly if they do not intend to commercialize their projects, many machinimators will likely be protected by end user license agreements provided by video game companies who view such projects as essentially free advertising for their games provided that they comply with any other limitations imposed by these licenses. Alternatively, they may be able to rely on the fair use doctrine to counter claims of copyright infringement depending on the nature of their project. However, if their ultimate objective is to create a commercially viable product, machinimators will almost certainly have to reach individual agreements with their ideal game’s copyright owners.
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Sarah Reiger is an editor on the Michigan Telecommunications and Technology Law Review, and a member of the University Michigan Law School class of 2017.