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Copyright & Fair Use - A fundamental guide to the basics by Morrison Rothman LLP

What is copyright and what does it protect?

The primary goal of copyright law is to protect the exclusive rights held by authors and creators as it pertains to the use, duplication, and exploitation of their original works. Many aspects of your favorite games, including the art, the characters, the music, and even the underlying source code, are entitled to copyright protection.

A copyright owner, such as an author or creator, generally maintains the exclusive right to create and distribute copies of their original work, to reproduce their original work, to prepare derivative works based upon their original work(such as sequels, translations, and other content based upon the original work), and to publicly display and perform their original work. 

What does it mean to infringe someone’s copyright?

Copyright infringement tends to occur when an unauthorized third-party exercises one of the copyright owner’s exclusive rights to display, reproduce, or use the work. In any such case, the copyright owner may have rights to take legal action against the third-party for infringing upon these exclusive rights.

Use of art, assets, and creative materials that do not belong to you can be infringement.

Copyright Infringement can be…

  • Putting artwork that doesn’t belong to you on a T-shirt
  • Modifying and re-distributing original video game software
  • Creating and distributing a port for a third-party game
  • Creating a sequel to a game, book, or movie you didn’t create
  • Using characters in a story from a third-party book or series

But what about “fair use”?

Fair use is a legal doctrine that, in some cases, can serve as a defense to a claim of copyright infringement. The fair use doctrine is intended to encourage creativity and freedom of expression through permitting use of copyrighted works, but only in specific circumstances. Copyright owners should always consider whether a work is fair use before taking legal action.

How do I know if my work is “fair use”?

Determining whether fair use applies to a particular situation requires a case-by-case analysis of the following factors:

  • The purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes. If the original work is being used for a commercial purpose (for example, in connection with a sale of a product or service), it is less likely that fair use applies.
  • The nature of the copyrighted work. If the original work is of a creative nature, it is less likely that fair use applies. This factor plays a big role in relation to use of factual and unpublished works.
  • Amount and substantiality of the portion used in relation to the copyrighted work as a whole. If the use includes a large, unedited portion of the original work, it is less likely that fair use applies.
  • Effect of the use upon the potential market for or value of the copyrighted work. If the unauthorized use harms the existing or future market of the copyright owner’s original work, fair use is less likely to apply.

There is no perfect formula for fair use.  Take the time to read up on the copyright owner’s guidelines to determine how you can safely use their copyrighted work, if at all. If you require further clarification, you can email Morrison Rothman LLP at amongus@morrisonrothman.com regarding takedowns or further questions.