For this Fair Use Question of the Month, an author writes in to the Center about using still shots and machinima from multiplayer online role-playing games, as well as what she should do if video game companies won't respond to requests to license material.
Dear Center for Social Media,
I am writing a book about massively multiplayer online role-playing games and are creating a related website to showcase what you are talking about. I've shot footage off the screen and crated machinima (action sequences that use video game characters to tell a story that is not in the video game). I'm planning to use this material to inform website visitors what the worlds look like, and to create new sequences that make the argument in my book. For instance, two of the video game's characters may exemplify a standard trope, and then stop to explain what they're doing. I expect to use some screen shots as illustrations in the book, and have had no luck getting any video game company to respond to my requests to license the material. Should I proceed under fair use?
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You have a clear fair use argument for using screen shots in your book, as film scholars and communcation scholars assert in their codes of best practices. Similar uses for illustrative purposes, connected to the arguments of your book, on the website will be fair uses under the same logic. Please consult these codes for their principles and limitations, and then ask yourself questions about how you work within those terms. As for the machinima: Often, people who produce machinima produce it with a license from the video game maker. Then they are hostage to whatever conditions the video game maker imposes. In this case, though, you have impressively gained access to the material without such a license, so you can entertain the question of fair use. You have a clear transformative purpose. You are using this material both to illustrate the form and to further explore an argument you are making about the form. You need to ask yourself how much of this material you need for these two transformative purposes. For instance, you may have designed a narrative in machinima that explores or extends the argument within the form you are describing. In this case, you may have a strong argument for using video game characters in an extended sequence. The fact that you have tried to license this material does not alter your claim to fair use. Indeed, having asked and been turned down may actually improve your argument, since it means that you are not depriving the owner of licensing revenue, and at least suggests that that owner may have a noneconomic reason for rejecting your request. If the rejection is content-based, your argument is strengthened further.
Good luck with your project!