Re: materials the user can alter

From: Steve Jamar <sjamar[_at_]law.howard.edu>
Date: Thu, 5 Sep 1996 20:32:32 -0400

> <long questions follow>
>
> Suppose someone writes some sort of computer based starship combat
> game. Suppose further that the game does not use any copyrighted terms
> or images but does allow the user to easily change the terms and images
> used in the game. For example, the programer might call a weapon system
> a "laser gun", which a user could change to a "phaser" (a "Star Trek"
> term, the copyright to which is held by somebody) to give the game a
> "Star Trek" feel. Would the programmer be in violation of copyright
> for producing and distributing this game?

No. The Sony case decided this one.

> Would the user be in violation for changing the terms /images used
> in the game, provided they did so in the privacy of their own home?

May be fair use. Also, I'm not sure one can copyright a name of something. Names are protected as tradenames. So I am not at all sure that "phaser" or any such name is in fact copyrighted or copyrightable. But it may be protected by trademark/tradename law.

> Suppose a company holds the copyright to a science fiction television
> series, and has licensed the right to use some of the terms and images
> to another company, which makes tabletop strategy games loosely based
> upon the series. Suppose then someone writes a computer-based tool to
> help with some of the lengthy paperwork and dice rolling involved in
> the tabletop games. The tool itself does not use any terms from the
> series, but does allow the user to customize the terms it uses.
> Further, the tool does not have any apparant use or value other than
> for use with this game, and changing the terms used to the terms from
> the game (copyrighted in turn by the licensing company) would be
> neccesary for the user to conveniently use it. Would the programmer
> be in violation of copyright if he were to distribute this tool as
> freeware on the net? Would he be in violation if he were to use the
> tool (already customized to include copyrighted terms) in the presence
> of a group of his friends? Would users of this tool be in violation
> of copyright when they did the customization?

The software tool would likely be a derivative work, regardless of the names used or the mutability of the names. Using different names might protect you from trademark or tradename infringement, but not, I think copyright.

A derivative work is an infringing work, unless it is licensed, a parody, or somehow fair use.

There are other possibilities lurking here such that what you are doing is not infringing or that what was done is not copyrightable or what you are doing is just implementing the ideas and not the copyrightable work. But that would take a great deal more detail to figure out and would probably not have a definitive answer.

I would not worry to much about using it with friends. This is not the sort of thing a company tends to get to bent about - even if it is infringing - except for Coke and Disney - indeed, it may help sell the game and so benefit the company. But if you were to try to sell it or market it as freeware, then there could be more of a practical problem.

Please note that by posting this response no attorney client relationship has been created and this is not to be relied upon as legal advice.

Steve Jamar
<sjamar[_at_]law.howard.edu> Received on Fri Sep 06 1996 - 00:39:32 GMT

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