Joined: 5/1/2004
Posts: 4096
Location: Rio, Brazil
i thought nintendo said "np, it's ok to make movies of old nes games". so i don't think they would make a drastic change as to sue a person (if it was a company selling the movies, ok, but it's a PERSON). it's paranoic to think anybody will even care about this, get real....
As such, none of you have any rights concerning your FMVs.
This sounds like the same reason why food recipes are not copyrighted.. which makes sense.
So, the FMVs are both 'legal' and 'not copyrightable'. That still leaves the legal status of the AVIs, of course.
how this applies to software has never been fully explored in case law.
You sound like more like a lawyer than I do. Are you actually one (or a law student or something?)
I'm not, which is why I based my judgement on a previous C&D/legal attempts in (what I thought was) a similar set of circumstances. If you're familiar enough with any actual case law, then you're a better judge of this material than I.
When considering fair use, there are four factors that are considered
My understanding is that rulings are made based on all four criteria. If any one is grossly lacking, there is reason enough to deny fair use.
1) Purpose - Though never stated explicitly, one goal of Bisqwit's site is clearly education (through entertainment).
Not necessarily; a judge could also see these movies produced primarily for entertainment rather than education. The result would be determined by the skill of the lawyer for and the lawyer against the AVIs.
Furthermore, it is highly unlikely a correlation could be shown to exist between the videos and the market for GameCubes. In court, this factor would weigh overwhelmingly towards fair use.
As for #4, Nintendo has recently released several classic NES games for the GBA, ranging from Crystalis to the recently-released Zelda. As such, you could attempt to draw some corrolation between the videos and the current gaming industry. Whether the relationship is strong enough or not; I don't know.
I'm willing to agree that it could be considered be fair use, and that the case for these videos is stronger than that of anime fansubs, but without a firm precident established I personally would be hesitant to accept a legal challenge from Nintendo.
sean: As far as copyright is concerned, my understanding is that even if it's out of print for many years, the individuals and companies involved still hold their rights and can legally enforce them at any time (up until their copyright expires in ... what, 75 years?).. so, no, your argument that age has somehow reduced the 'harm' the videos might cause really has no impact on the debate here. Someone (such as Disney) can still object to illegal usage of old works (such as Mickey Mouse), even though the character is almost at the end of his copyright period (and has been, several times, before copyright was extended).
FODA: the "it's okay to make movies" reply probably wasn't from a person with any legal authority to make that statement. the legal owners are most likely the executives in charge of copyright management for the various Nintendo branches.
... although I do have to wonder: When Nintendo licensed the games from 3rd parties so many years ago... were those licenses intended to last forever? Or, does Nintendo have the option of maintaining those licenses every few years (and, do they choose to maintain all of them)? Or did they expire at some point?
If i wanted to sell them on ebay without any consent or care for your hard work i would've just made the videos and posted them on ebay.
Yeah, your name kinda got dragged through the mud there ;-) Our debate was more of a theoretical nature that used you as an example.
I can only speak for myself but I never meant to imply that you would have sold them anyway without our permission. If you or anyone else thought that then I'm sorry.
grassmunk wrote:
I just want to know what made people so outraged?
I think most of us are just unsettled by the thought of people making money off someone else's work. It wouldn't have been much, I know, but it's just the principle of the matter.
Joined: 4/16/2004
Posts: 1276
Location: Uppsala, Sweden
Fuwafuwa: I've heard/read somewhere that the copyrights for games lasts 25 years. I don´t know where so I might be an unreliable source, but that could mean that SMB in a few years is uncopyrighted.
Kopernical: I agree to your last statement ;)
Joined: 5/1/2004
Posts: 4096
Location: Rio, Brazil
If this was work i would like to get paid for it. this is fun, i make movies cause they are fun to make. i don't know how old you people are, but i'm 23 and i got 2 jobs. that's real work. these are just videogame replays of gameplays, if you consider that work, well you're way off. My position remains that you can do whatever you want with my movies for the simple reason that i LOSE CONTROL OVER THE MOVIES ONCE I PUBLISH THEM ON THE INTERNET. i can't make my movies and then keep them in a little black box under my bed, that is pointless. these movies were made to be seen and the guy wants to make that happen to people who don't have dsl or tons of free time.
how can u forbid him of doing it if this is not a paid "business"? can you take the time to stay on the internet all day looking for people selling your movies, and then sueing them for having used? the answer is clear, and if you don't want him to use, i think you need to open your eyes. cause if he doesn't sell others will.
I prefer to support him as he just found another way of promoting the movies. and my name. i don't care how much he is charging, if someone paid, GOOD FOR HIM! the person wanted to pay, he said it's downloadable through a site for free, he's not claiming to have made the movies, just for compiling the collection. but even so, it's the users choice, so there's nobody losing here.
FODA, I appreciate it that you allow others to redistribute and sell your movies, but you can only speak for yourself. Whether it's someone's hobby or serious work is irrelevant, you still have copyright to your material. And publishing something on the Net doesn't make you lose any of your rights. If you decide to upload something you've made you have copyright to that material and you can set the rules (except regarding fair use): if the licence agreement (or readme.txt) says that redistribution is prohibited then no one who doesn't have your permission has the right to redistribute the material, for free or commercially. Well, of course if you upload it to a p2p network it's different, but even then you most certainly can prohibit commercial use.
The term "fair use" cause a lot of confusion. Fair use is private and personal use, which means that you can do almost whatever you want with the material you've bought or downloaded, at your home. Redistribution is not fair use.
So grassmunk, please sell only the movies you are permitted to sell.
Joined: 5/1/2004
Posts: 4096
Location: Rio, Brazil
like i said, you can copyright ur movies, go ahead. as if that would stop anybody from copying it. would u really sue someone if they use a copyrighted movie? it's just a game, please.... :P
If someone was violating copyright by redistributing my material I wouldn't probably sue him because that's a difficult thing to do but I could make a complaint to the violator's ISP if he was hosting the material on his web site, or to eBay if he was selling it there. Most ISP's and eBay especially don't like copyright violations and will remove any illegal material. The most likely way to illegally redistribute digital content is of course p2p networks, and that would be almost impossible to stop.
I know, it's just a game. But is someone wants to take it seriously and prohibit redistribution and/or commercial use he has the right to do that. If I spent 10 seconds drawing a meaningless stick boy and uploaded it on the Net I would still have copyright to that piece of work, no matter how silly and stupid it was.
Joined: 3/21/2004
Posts: 32
Location: the Netherlands
Grassmunk, I didn't mean to imply you were going to rip people off. I was just speaking hypothetically as I'm sure most people were. I give you permission to use my movies ("A boy and his blob" isn't very spectacular :-p, though my "Little Samson" run on speedruns.org looks quite good IMO, 'though I'm not one of the big runners around here :o) on the condition that you are clear about them being available for free.
I cannot enforce this condition, not on you or on others who haven't gotten premission whatsoever, that was what I was talking about. However, I hope you do provide this service for a reasonable price and advertised properly as freely available emulator-enhanced runs. If you do this, thanks in advance. :-) If you do not, meh, not much I can do about it. ;-P
No, this is incorrect. The four factors I outlined previously are the only criteria considered when determining fair use. For an example of quite public and commercially motivated use of copyrighted material that still falls under the fair use statute, see book and movie reviews. (They use copyrighted quotes and clips.)
Nirva wrote:
Redistribution is not fair use
Again, it just depends. Redistribution is allowed under many circumstances, just not for profit, usually. Book and movie reviews are clearly for profit, but they are allowed because courts consider the commercial value to be derived from the review of the work, and the use of minor pieces of the copyrighted work are unavoidable and incidental.
fuwafuwa wrote:
Nintendo has recently released several classic NES games for the GBA
This is a good point that I was not aware of, however, I've yet to meet a lawyer who I think is good enough to show that instilling fanatical nostalgia for old games in players is detrimental to the market for those games.
fuwafuwa wrote:
a judge could also see these movies produced primarily for entertainment rather than education
That wasn't the main thrust of the argument for that factor weighing towards fair use, anyway. The most important thing here is that there is no money involved.
fuwafuwa wrote:
My understanding is that rulings are made based on all four criteria. If any one is grossly lacking, there is reason enough to deny fair use.
This is true, in general, but I doubt a judge would find that any of the factors as they relate to Bisqwit are "grossly lacking." Consider, are Cliff's Notes or SparkNotes of still copyrighted books "grossly lacking" because they contain many, many pertinent quotes and outline and summarize the book in its entirety? Apparently not.
