Re: materials the user can alter

From: Brian Lewis <lawman[_at_]wizards.com>
Date: Fri, 6 Sep 1996 09:04:43 -0700

At 9:19 AM 9/4/96, Greg Yukl wrote:
>
><long questions follow>
>
> "phaser" (a "Star Trek" term, the copyright to which is held by somebody)

I assume you mean trademark - You can't own the copyright in a single word or my copyright on "the" would have made me vast sums in royalties by now.

> to give the game a "Star Trek" feel. Would the programmer be in
> violation of copyright for producing and distributing this game?

Contributory infringement (aka vicarious liability) arises in copyright law when something is sold and the primary use would be one that would infringe the copyrights. Your scenario presents many commercially viable alternative uses that do not infringe, so I think a court would be hard pressed to find vicarious liability.

If they market the product as "compatible with Star Trek and Star Wars fantasy worlds." they might run into trademark problems if they fail to attribute those marks or create confusion about the relationship of those products to the video game. Despite that, I still have a tough time seeing a copyright infringement.

> 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.

The focus on terms is not particularly relevant to your copyright inquiry unless the quantity of the terms relative to the work as a whole becomes significant; however, you will again need to be careful about trademark infringement.

> Further, the tool does not have any apparent 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.

The absence of other commercial uses raises the earlier concern about vicarious liability/contributory infringement.

> Would the programmer be in violation of copyright if he were to distribute
> this tool as freeware on the net?

The commercial purpose of the use is but one of several factors that a court will look at in its fair use analysis. It is relevant, but certainly not dispositive.

So your a game designer huh? Sounds like your working for the wrong company. ;-) As you can tell by my answer, your "hypothetical" pushes the edge of both trademark and copyright infringement and actual infringement will turn on a more specific review of the specific facts. If your going to market this, hire some IP attorney to help you avoid getting sideways with the IP owner.

Brian E. Lewis
Associate General Counsel
Wizards of the Coast, Inc.
<lawman[_at_]wizards.com> Received on Fri Sep 06 1996 - 16:06:47 GMT

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