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Copyright Guidance

Copyright Guidance

Jul 02 2018, 2:50 PM PST 10 min

At Roblox we believe strongly in protecting and safeguarding the creativity, ideas and technology that make the games on our platform great. To uphold these values relating to copyright, not only do we work to respect the creators building on Roblox, but we also work hard to respect and uphold the rights of any developer, artist or company who has worked hard to produce something of value, whether it is on Roblox or not.

The legal world of copyright law is complex, full of jargon that can sometimes make it difficult for a layperson, or a developer unfamiliar with the law be able to comply.

To help our developer community navigate this space, and to address some issues unique to the gaming industry, we consulted attorneys to lend their expertise in answering some of the most common questions people have about copyright, to address common misperceptions, and to offer their advice to help us all safeguard our own, and other’s copyrighted works on the platform.

What is Copyright?

Copyright is a legal right, which gives authors of FIXED ORIGINAL works the exclusive right to COPY and SHOW their works.
For the layperson, let’s break that definition down.

  • First, the work must be original. For example, facts are not original and are not protected by copyright.

  • Next, the work must be fixed, or captured in a tangible form. That means that non-fixed ideas, like an idea for a video game, can’t be copyrighted until the game is created, and thus becomes “fixed.”
    The following is a list of some of the kinds of fixed works protected by copyright:

  • Film/TV

  • Art/Posters/Designs

  • Photos

  • Music (both sound recordings and the underlying musical composition)

  • Video and computer games

Some works may not only be copyrighted themselves but embed or include other copyrighted material within them. Consider a movie for example, which is copyrighted by a Studio, that uses a soundtrack comprised of songs each copyrighted by a musical artist.

How do I know if something is copyrighted?

A work does not need to display a © symbol to be protected by copyright law. Consider music you hear on the radio. Did you see a copyright symbol? Of course not. But that doesn’t mean the music isn’t copyrighted.

All fixed original works are protected by copyright. It happens automatically and does not require the creator to register the work, pay a fee, or do anything at all. Copyright is inherent to the work itself.

The only works that are outside of copyright are those works that are in the public domain. Works join the public domain in one of two ways:

  • The copyright holder explicitly states that the work is in the public domain.
  • The copyright has expired, which happens for most works after 95 years or so.

What happens if I violate someone’s copyright?

Everyone should be well aware that violating someone’s copyright can come with serious consequences, including but not limited to:

  • Your content could be taken down.
  • You could face big fines–up to $150,000 per infringed work.
  • You could face large legal fees.
    Sadly, ”I didn’t know it was copyrighted” is not an adequate defense. So it is in your best interest to do your due diligence and research the rights associated with any content you incorporate into your game that you did not create yourself.

How do I use copyrighted work safely?

If you wish to use someone’s copyrighted work, then you must receive written permission from the copyright holder. In granting you permission, the copyright holder may ask you to adhere to certain conditions first. For example, they may wish to be paid in order to use the work, or they may limit how you can use the work.

This permission is often granted in the form of a “license.”

Here are some things to bear in mind as you consider going down this path:

  • The copyright owner may be an individual or a company.

  • Rights can be layered: rights can belong to the creator of the work, and something to protected things or people in the work as well, for example: music used in video games, or works of art in movies.
    Obtaining permission to use someone else’s music is especially complicated, but you generally need to obtain two separate licenses:

  • A license to use the underlying musical composition (the written music/lyrics), often obtained from the music publisher (and licensed by performance rights organizations such as ASCAP and BMI).

  • A license to use the sound recording itself (the master license), often obtained from the record label.
    To use a musical composition in connection with a video game, you generally will need what is called a “synch” license, that is, a license that allows you to synchronize the music with visuals.

Many organizations and companies exist to help people easily find and acquire the rights to use music, pictures, or video. Some examples include:

  • Shutterstock
  • Getty Images
  • Wikimedia Commons
  • OpenGameArt
    Remember: it is your responsibility to abide by any terms these sites put on the use of their assets.

What is this “Fair Use” thing I’ve heard about?

One common misperception is that “fair use” is a set of conditions that entitle one to use work without permission. “Fair use” is best described as a legal defense for using a PORTION of copyrighted material in a new work without first obtaining permission. In other words, “fair use” does not protect you from legal action, but can be used in court to justify your usage should you need to.

The following are some kinds of uses that are most likely to be considered “fair use”:

  • Use of a work in a classroom or educational context.

  • Use of a work while reporting the news.

  • Use of a work in the context of offering commentary or criticism.
    If you are considering the use of copyrighted material in your own work, and believe your use to be qualify as “fair use,” you should weigh these elements:

  • Is the new work using the original in TRANSFORMATIVE way? In other words, are you using the original work in a new way, or are you just duplicating its original purpose?

  • What kind of work is the original? Bear in mind that the use of highly CREATIVE works is less likely to be considered fair.

  • HOW MUCH of the original do you use? The more you use, the less likely the use is to be fair.

  • Will the new work hurt the MARKET for the original? Would your use make it harder for the person who created the original work to make money off that work?
    Remember: there’s no guarantee a court will agree that what you are doing is Fair Use. Rely on it at your own risk, and when in doubt, consult an attorney.

Can the rules and game mechanics of a video game be copyrighted?

In short: yes and no.

Remember, non-fixed ideas are not copyrightable, and because the rules, game mechanics, and functionality of a video game are said to “merge” with the underlying idea, this means that game mechanics and the rules are not entitled to copyright protection. What is protected of a video game are the “expressive elements” of the game, such as the pictures, music, and graphics of a game.

In some ways this may not seem very fair or just, but when you think about it, these rules are what allow game genres to exist. If someone could copyright “real time strategy” games then only one company would be allowed to make them, and that would be really unfortunate.

That being said, recent cases have found that close copying of game mechanics, when combined with close imitation of the graphics of another game, can rise to the level of infringement. Consider the following example:

  • Tetris v. Mino. Mino exactly copied the playstyle of Tetris, only technically replacing the artwork in Tetris with its own (which was stylistically very similar). The court found that the “wholesale copying of the Tetris look” and gameplay elements was enough to impose copyright liability.
    It is reasonable to think that the creators of Mino thought that if they copied Tetris, but modified it in some small ways, that they would in effect be creating an original work. However, trivial alterations to the art or graphics of a game are not enough to avoid copyright challenges.

How does a court determine if my game infringes the copyright of another game?

The court will only consider the protectable elements of the copyrighted work, and will filter out all “unprotectable elements.” The most common unprotectable elements of a video game that cannot be used for a substantial similarity analysis are:

  • Elements that are not original to the copyrighted work.
  • Scènes à faire, French for “scenes that must be done,” which refers to the features that are necessary or common to a genre.
  • For example, in a baseball game you can include things like innings, bases, player rosters, three outs, the infield fly rule, etc. These elements are all considered scènes à faire. So as long as these elements are not copied verbatim from MLB 2017, you have the right to include them. Otherwise, no one would be able to make a baseball game.

Next, after filtering out the unprotectable elements, the court will ask if what’s left is substantially similar to the original work. “Substantial similarity” in this context means that the degree of similarity between the works is so high that the similarities could only have been caused by copying.

One challenge in the courtroom is the fact that “substantial similarity” is subjective, even though it should be viewed through the eyes of the theoretical “ordinary reasonable observer.” Most judges, however, are older and do not play video/computer games. That means:

  • Judges will likely not understand many common video game genres, including what is typical in those genres.
  • Judges may not even play the games in question when determining infringement, and may only see screenshots from the games.
    In other words, what may seem obvious to you, may not be obvious to a judge.

So what should I watch out for when creating my game?

Here are some guidelines we recommend all Roblox developers fully consider.

DO NOT:

  • Use original or creative assets from other games (graphics, code, music, etc.) without written permission.
  • Use images or names of real people.
  • In addition to the copyright concern, mentioning people without their permission can violate their publicity
  • Use works (music, images, videos, etc.) you found on the internet without permission or express license.
  • Slavishly copy a game’s gameplay elements and mechanics with only minor changes to art and music.
  • Use images, music, etc. from popular media without permission. For example, if your game has a TV in the gameworld, don’t put a screengrab of Game of Thrones on it.
  • Use characters from popular media or other games without permission. Your Luke Skywalker vs. Mario fighting game might be wicked, but it is probably NOT OK.

DO:

  • Be creative! The easiest way to avoid copyright problems is to make your own, original content and gameplay. Work with other developers to come up with new ideas!
  • Be inspired! It’s ok to take inspiration from other works, as long as you don’t straight up copy them. Instead, inject your own creativity into them. Make them unique. Make them your own.
  • Be careful! Copyright violations can often happen by carelessness or mistake. Think twice before you add images, video, and other assets to your game.
  • Ask questions! This is a lot–people go to law school and work for years in this field and still don’t know all the answers. In other words, if you have a question about whether something is ok, don’t be afraid to ask a lawyer.

Additional Resources

Disclaimer

This information is provided as a public service to our community and does not constitute legal advice or opinions. This information should not be used as a substitute for legal advice obtained from an attorney licensed to practice in your jurisdiction. We do not and cannot serve as your lawyer. Roblox is not responsible for any liability or costs you may incur as a result of relying on this information.

Tags:
  • legal