QUESTION OF THE MONTH: Footage from a Video Game

QUESTION

Dear CSM:

I am making a movie about massively multiplayer online role playing games (mmorpgs). The movie is an exploration and critique on their social and personal importance in today's society. I have been trying to get permission from the game companies to use footage that I shot in the game (machinima). As of yet only one company has given me permission to use images from their game. The rest of the major game companies have not so much as answered a single one of my inquiries.

So far we use a good amount of machinima from inside the games. I asked myself if the way we use it meets the criteria for Fair Use. Do we transform its use? Yes. A video game's purpose is to allow a user to control an avatar, to interact with their surroundings, to buy and sell items, to kill and be killed by others, and ultimately be entertained. Our film will use the footage that we "shot" in the game to inform viewers what the worlds look like, how they work, and to act out a few short scenes that take place in the world between real world people. Of course we also want it to be entertaining. I say we "shot" the footage we are using, because we directed people to act out scenes and actions in specific places much like you would in real life. We are not using specific story moments from game play, but we create our own new moments that exist only when players act them out.

Was the amount and nature of the material appropriate? This is where I am less clear. According to the companies that make them, the games we are documenting do not end. In fact they really don't. Just to reach maximum level takes over 500 hours of playing, and that is not even close to the end of the game. In comparison to the interminable length of the game, the seconds we use are inconsequential. Also, the clips relate to the stories of our characters, not the story within the game. My big question is how much is appropriate? Are two minutes of clips appropriate? Is ten minutes spread throughout the movie too much? What is a good measure?

Any advice would be really helpful. Thank you,

Juan Carlos

ANSWER

Dear Juan Carlos,

These are great questions! First, let me remind you that we at the Center for Social Media are not lawyers and don’t give legal advice: This is simply our interpretation of Fair Use issues after many years of working on them. It seems to me, based on the Documentary Filmmaker's Statement of Best Practices in Fair Use, that you have as clear a case as ever was for quoting machinima in a film about machinima culture. As the Statement points out, the first question to ask is are you using this for the same purpose and function as the one for which it was created? (For instance, are you using the music that was incidentally recorded also, as you edit, as a soundtrack because it's really great soundtrack music?) Or have you transformed it (i.e., are you using it in a different manner, with a different purpose)? In this case, it seems you have transformed it.

You also asked how much is too much. What the law asks, as shown in past judgments, and what filmmakers require in the Statement, is that you use as much as is necessary for your needs, and no more. This is deliberately, both in law and in the Statement, NOT a quantified amount. In some cases, after all, 100 percent of the original is what you need (for instance, a photograph). But only you can really answer that question: Is there just enough footage to make the point of your film? Or do you include more than you need, simply for added entertainment value?

Although you didn't ask this, some filmmakers are concerned that if they use highly entertaining segments of copyrighted footage, for instance as illustrations of a trend/phenomenon/behavior/attitude within media culture, that might be bad. The history of the law doesn't bear that out. You can use whatever is effective and powerful to make your point--but only as much as you need to make that point--regardless of how entertaining it might be.

--The Center for Social Media

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