Weapon copyright?

This has come up before, so you should find the discussion on this or other forums.

Yes, there where some big cases where weapon manufacturers sued game studios for using their weapons without paying license cost. Cannot give you a link, but google would most probably be the best way to find it.

What does this mean for you though? Basically, if the manufacturer is still in business, or their name has been bought by someone else, avoid exact reproductions of the wapons, or even worse, using the name.

If its a HISTORICAL weapons from a manufacturer out of business, you should be fine.

And of course nobody can sue you if you weapon happens to look similar to a Double Eagle, but is named differently, without using copyrighted names or trademarks.

I heard EA doesn't pay licensing for weapons on the grounds that they don't support weapons manufacturing or some such. I heard this only from someone who works for EA/DICE so I don't know how much truth is in that.

I don't see how this is any different from e.g. using a car make/model in a game so they should have to pay surely.

Generally if you can advertise it it can be licensed and you should speak to a lawyer if you are unsure not people on the Internet.

Hell, speak to a lawyer anyway. It's certainly cheaper than defending yourself against a lawsuit from smith and wesson :)

I am not a lawyer, but if you have played GTA you'll notice there are a lot of vehicles that look very similar to vehicles you may have seen in real life. They even have similar names, or names that evoke the meaning of the real-life vehicle. My assumption is that Rockstar did this to avoid licensing costs and the headaches of negotiating licenses with all those companies. I would also assume that same logic would apply to weapons.

So avoid using trademarked names and logos. Also, I'm not sure if "design language" can be trademarked or under copyright. You should look into that too. Design language might be the unique styling of the tail lamps on a Ford Mustang, for example. Not sure if that even relates to weapons, but keep it on mind.

Weapons are subject to copyright laws like any other product, so if you use any weapon in your game (except the AK-47 which is in the public domain I heard), you'll have to pay the license fee.

IANAL.

If a copyrighted thing is in your game, but it's not a feature of your game. then it's fair use. For example, there's a Chewbacca image on a poster in the background of your character's room in an RPG.

If an image is part of your game, then you have to pay for the rights. For example, you play as Chewbacca in your RPG, Chewbacca would have to be licensed.
Or if the Chewbacca poster in the first example plays an important part in an arc of your story, then it would have to be licensed.

An ok test is if you can swap the item out for anything else and it's still the same game, then it's probably fair use. As the first example, the Chewbacca image could be any nerdy poster and it would still convoy the same message.

EA claims that guns, while part of a game, are not a "feature" of the game, and so it's fair use.

Of course, what EA can get away with and what you personally can get away with are two different things. I'd advise that you file off the trademarks on anything in your game as an independent.

Ah great to know :) So i just need to figure out now which guns i may or may not beable to use in a game. Trying to search over a list to see if the companies are outdated or not and to see if i can also put some modern guns into my game.

Thank you all who replied to this Topic you helped me alot!

IANAL.

If a copyrighted thing is in your game, but it's not a feature of your game. then it's fair use. For example, there's a Chewbacca image on a poster in the background of your character's room in an RPG.

If an image is part of your game, then you have to pay for the rights. For example, you play as Chewbacca in your RPG, Chewbacca would have to be licensed.
Or if the Chewbacca poster in the first example plays an important part in an arc of your story, then it would have to be licensed.

An ok test is if you can swap the item out for anything else and it's still the same game, then it's probably fair use. As the first example, the Chewbacca image could be any nerdy poster and it would still convoy the same message.

EA claims that guns, while part of a game, are not a "feature" of the game, and so it's fair use.

Of course, what EA can get away with and what you personally can get away with are two different things. I'd advise that you file off the trademarks on anything in your game as an independent.

You might be understanding "fair use" wrong... AFAIK it means you use it as a kind of parody, and it needs to be linked quite closely to the original (you need to be making fun of mario, not use mario to make fun of something else).

Cannot be satire though....

Yeah, its a slippery slope, and certainly not what you described. If chewbacca is only visible in your background, you are still infringing and cannot get away on the grounds of "fair use".

Of course, it all depends on IF the copyright holder wants to sue you, and what the judge decides....

IMO: If in doubt, if you are not creating a parody, don't try to use fair use as a defense against getting sued.

So avoid using trademarked names and logos. Also, I'm not sure if "design language" can be trademarked or under copyright. You should look into that too. Design language might be the unique styling of the tail lamps on a Ford Mustang, for example. Not sure if that even relates to weapons, but keep it on mind.

I don't think design language will be easy to defend before a judge.

If you copy the "trademark design" of the BMW Sign, or something like that... yeah, you most probably will not get away with it. If you copy a BMW car exactly, just leave away the BMW sign, that might also get you in trouble.

Using the BMW typical double air intake grille in the front on a car of your own design will most probably not be something you could get successfully sued for. Or using an existing BMW design as an inspiration for your own design.

So if your weapon looks similar to the double eagle, but with small alterations, its not a double eagle. Again, thats a slippery slope, but the amount of alterations until something becomes no longer a copy close enough to the original so you can get sued for it is surprisingly small.... AFAIK, of course.

Something different are patents... don't know if there really are that many design patents, but Apple tried to sue many of its competition because they seem to think that the design of the iPhone had been copied by them. So there is alway the danger that someone DID patent something that you shouldn't copy (a special hinge on a 2-1 device for example)...

How defendable such a case is when you depict a patented design or part in a depicition of a similar device in a video game though would be questionable at best. Again, I guess depends on the judge.

Ah great to know So i just need to figure out now which guns i may or may not beable to use in a game. Trying to search over a list to see if the companies are outdated or not and to see if i can also put some modern guns into my game.

Thank you all who replied to this Topic you helped me alot!

Does it really matter this much to your game idea that the weapons in it a) look exactly like their real world counterparts and b) bear the exact same names?

If it does (you want to create a simulator that HAS to be as close to real life as possible), I would ideally make it something historical. If you go back to the 19th century, you shouldn't face any problems.... some of these companies are still around, at least in name, but if the current owner of S&W really cares that you are using depictions of 19th century S&W weapons without paying license costs is doubtful.

If it doesn't (like in GTA... yes, its a realistic looking game, but the names of cities and people have been changed for a good reason, why should weapons and cars bear realworld names in it?), better roll your own versions of these weapons.

Costs you some additional thinking now, but MOST players will not care (Its not called a Deagle and looks slightly different, but people know what you mean... and who cares about the names of ingame items as long as they kick arse?), and you are certain nobody can sue you.

Moving to Business and Law.

I'm also not a lawyer, but I've dealt with lawyers many times and have read quite a lot on the subjects involved.

You could benefit from reading up a bit about the various intellectual property rights.

Copyright protects original creative works, like books, audio recordings, photos, movies. It protects the author's rights to distribute copies, to make derived works (like sequels), to publicly perform the work, and to publicly display the work.

Trademark protects names, logos, distinctive marks, and distinctive designs. Mostly they are used to help identify the source of a product. If you buy "Coca-cola" you know who it came from. Distinctive names like Superman, Batman, The Hulk, these are also trademarked so when you see them you know you are getting the official product.

Trade dress is similar to trademarks, protecting the distinctive appearance and look. For example, Subway Sandwiches has a distinctive look in their restaurants of pale yellow/brown subway maps, a white/yellow/green/wood color scheme, and certain decorative patterns. If another company had a different name but used those same distinctive appearance, they are likely violating trade dress protections.

You probably don't realize this, but just about everything you see in television and movies has gone through copyright and trademark clearance. Distinctive door panels, automobiles, clothing and wardrobe, chairs and other furniture, wallpaper, EVERYTHING, goes through clearance with lawyers. Major studios have broad licenses for common things, like vehicle companies and certain clothing manufacturers. Even so, note that most clothing is generic with few logos, most equipment is generic or uses custom-made sets rather than store-bought well-known brands.

With that in mind...

But when i see a car with the brand mazda or a screen of samsung in game. They mostly payed the companies to use their brand in game right?

Yes. When companies use the vehicle's name (trademark) and the vehicle's distinctive look (trade dress) they typically pay to license those rights.

Yet that doesn't explain how games like mgs and cod can use so many weapons under their name. Does no one care if you use branded guns or is there something behind it?

Licensing deals are everywhere.

I heard EA doesn't pay licensing for weapons on the grounds that they don't support weapons manufacturing or some such. I heard this only from someone who works for EA/DICE so I don't know how much truth is in that.

They tried it for a limited number of government-owned weapons designations. It didn't hold up in court. They ended up paying.

Hell, speak to a lawyer anyway. It's certainly cheaper than defending yourself against a lawsuit from smith and wesson

Absolutely. A $200 or $500 consultation and discussion is far cheaper than a $20,000 pre-court settlement or $500,000 legal defense.

if you have played GTA you'll notice there are a lot of vehicles that look very similar to vehicles you may have seen in real life.

Rockstar has legal team. The development team wanted to do it, and they had their lawyers review all the details. They did quite a lot of things that were borderline infringement and probably if challenged in the courts would have lost a lot of money. But the critical thing is that they had their lawyers review the details, and their lawyers evaluated the risks and potential costs.

If you want to do something like that, you also need a legal team who will review everything, and review the risks and potential costs.

If a copyrighted thing is in your game, but it's not a feature of your game. then it's fair use. For example, there's a Chewbacca image on a poster in the background of your character's room in an RPG.

Very wrong, for most of the world.

In the US, fair use for copyright is determined by a four-prong test. First, the purpose of the use, such as for educational use, for news reporting, or commercial use. Second, the nature of the copyright work being used. Third, the amount of the work being used, and fourth, the effect of the potential market value of the copyrighted work.

Using a Chewbacca image in a game basically fails all the prongs. It's purpose is entirely commercial (you have it as part of your game for decoration,not as a news commentary or educational tutorial about how the star wars universe is being marketed, or similar). Second, the nature of the work is entirely unrelated to your product; the use is entirely gratuitous. It is not like a scenes a faire, a stock item that needs to be included, you threw it in because it added value. Third, you used the entire work, the entire poster. You didn't have the bare minimum, you took it all. And fourth, the effect of the potential market is big. Star Wars makes the bulk of its money on merchandising and branding. Most businesses pay for it. I recently read it is somewhere around 4 billion dollars annually. You did not pay. If everyone used it like that, the damages would be billions of dollars per year.

Finally, Disney is very aggressive about protecting their legal rights and intellectual property.

So no, do not do that unless you want to get some legal nasty-grams and a high risk of a very costly lawsuit.

Trying to search over a list to see if the companies are outdated or not and to see if i can also put some modern guns into my game.

Somebody still owns the rights.

How about you have your artists get creative and make their own weapons that are unique to your game universe?

Be creative and make something unique and valuable, rather than using other people's objects and other people's creativity.

You might be understanding "fair use" wrong... AFAIK it means you use it as a kind of parody, and it needs to be linked quite closely to the original (you need to be making fun of mario, not use mario to make fun of something else).

While fair use is most often talked about with parody, it does not necessarily mean fair use is only about parody.

Fair use is the ability to use a copyrighted material in an original work without getting the owner's permission in certain circumstances.

https://en.wikipedia.org/wiki/Fair_use

Using a Chewbacca image in a game basically fails all the prongs. It's purpose is entirely commercial (you have it as part of your game for decoration,not as a news commentary or educational tutorial about how the star wars universe is being marketed, or similar). Second, the nature of the work is entirely unrelated to your product; the use is entirely gratuitous. It is not like a scenes a faire, a stock item that needs to be included, you threw it in because it added value. Third, you used the entire work, the entire poster. You didn't have the bare minimum, you took it all. And fourth, the effect of the potential market is big. Star Wars makes the bulk of its money on merchandising and branding. Most businesses pay for it. I recently read it is somewhere around 4 billion dollars annually. You did not pay. If everyone used it like that, the damages would be billions of dollars per year.

This is actually a grey area.
US TV companies are risk averse, and US media companies are agressive so they all pretend that it's black and white.
The way that companies interpret the legislation is a far cry from the spirit of the law.

If I film a documentary about a particular person in the street, and a Mercedes drives past in the background, and a poster of Chewbacca appears on a wall, it's fair for me to include that footagr in my film without paying royalties.

However, my US TV producer might decide to blur those items either out of unwarranted fear (frivolous lawsuit protection), or out of greed ("I want to get paid if we've got product placement!").

Generally, showing a real-world product being used in it's intended way is completely fine.

If you showed someone performing lewd acts with the Chewbacca poster, or being killed by the Mercedes, they might try to claim you're attacking their brand and might sue for damages.

Trademarks are a buyer protection law. If the appearance of the Mercedes could confuse a consumer into thinking that your film is Mercedes affiliated, then you're infringing their trademark. Usually this would only apply to your packaging, as that's what the consumer is viewing when making this decision -- so you wouldn't prominently include that shot on the cover.

In novels, this is a well established tradition -- brands and products are used to create familiar settings.
Likewise in documentaries or any other footage shot in public places (except when fear/greed obsessed producers unnecessarily blur things).

If you're reproducing a real world setting or real props for a game, it falls into the same area.

However, I mentioned frivolous lawsuits above. Even if someone is wrong, they can still sue you and cost you a lot of money, even if they lose -- hence the corporate practice of risk aversion extending far beyond the letter of the law. And worse case, they may win even if they're wrong, costing you a hell of a lot of money (especially if they manage to assert that your insignificant game caused significant harm to their billion dollar brand).


EA used to pay licensing fees on weapons. Then they stopped because doing so is basically legal extortion/blackmail, and they shouldn't have to. They got sued. The case dragged on and cost EA a lot of money, so they settled (aka payed a legal ransom) and went back to their old arrangement quietly.

Having someone happen to drive by while doing street photography is radically different than a game. Every item in a game is explicitly added to the game as a conscious decision.

Game objects are not created by accident. An extra at a movie set may happen to accidentally expose an alligator logo on his shirt that wasn't supposed to show. In a game the logo only appears because a texture artist intentionally drew it there. In no way can it accidentally appear. In no way can a game creator claim it happened to be on site and was not added for its value.

If it was added to the game it was only done for its value. It might be commercial value or perhaps comedic value, somebody put it in to get some value from it.

Having someone happen to drive by while doing street photography is radically different than a game. Every item in a game is explicitly added to the game as a conscious decision.

Game objects are not created by accident. An extra at a movie set may happen to accidentally expose an alligator logo on his shirt that wasn't supposed to show. In a game the logo only appears because a texture artist intentionally drew it there. In no way can it accidentally appear. In no way can a game creator claim it happened to be on site and was not added for its value.

If it was added to the game it was only done for its value. It might be commercial value or perhaps comedic value, somebody put it in to get some value from it.

Whether something accidentally appears or not is not a valid defense...
What if the game world is created via photography of real places, just like the documentary example? If the environment is digitized in 3D, is that any different to digitizing an environment as a film? What if the 3D digitization process simply takes the video as an input and has no human intervention?
What if in the documentary example, I deliberately park a Mercedes in the background of a shot to make myself look rich? Or if it's a feature film and I decide that the actors should be driving a Mercedes?
What about in a book where I deliberately choose to use the brand "Mercedes" when describing the protagonist's car, to create an instant visual scene for the reader?

Copyright was not designed to stop these kinds of situations. It was designed to stop people committing plagiarism and product cloning (e.g. unauthorized reprints of books).
Copying the blueprints to a gun and using them to fabricate my own identical product line is copyright infringement. Only the creator has the right to reproduce the work.
Inventing a story when a character owns that particular gun is not cloning it.
Buying a guy to use as a prop in a performance is not cloning it.
Capturing that performance on film doesn't change anything -- the camera still doesn't clone the gun.
Capturing that performance in 3D still isn't cloning the original product.

Yes there are companies that will try and argue that these kinds of usages are infringing on their rights. But those companies are immorally bending the spirit of the law for their own interests. The smart thing to do might be to bow down to these powers, but the right thing to do is to resist such oppressive nonsense.

but the right thing to do is to resist such oppressive nonsense.

Unfortunately doing the right thing requires having a lot of money. You mentioned EA, how much did they spend on fighting the case then eventually settling? More than the average indie developer ever would see in a lifetime I'm sure...

What about in a book where I deliberately choose to use the brand "Mercedes" when describing the protagonist's car, to create an instant visual scene for the reader?

Your problem here would be Trademark infringement and not copy-write. It also depends on how the characters use the Mercedes.

If you say "Hodgman drove to work in his new Mercedes" then fine no problem you have identified Mercedes as a popular brand of car being used for the purpose it was intended.

If you said "Being a rich asshole Hodgman owned a Mercedes and ran every light in town". Then yes Mercedes could sue you for Trademark Defamation or Tarnishment.

If you implied that all cars were called Mercedes you could be sued for Trademark dilution. OK Mercedes isn't a likely candidate here but there are others like Hoover. So it would be more likely if you put "Hodgeman hoovered his living room" the potentially Hoover could sue you for Trademark Dilution.

So it is the same with guns. The first thing that people think of with a virtual 3D gun in a video game is that you are going to use that virtual gun to shoot a virtual human being. It is entirely possible that given all the anti gun sentiment in the US at the moment that Bushmaster for example would absolutely sue your ass if you tried to show one of their AR15s used in as anything other than a game hunting weapon.

Its also worth pointing out that in the film "Slum Dog Millionaire" Danny Boyle was forced to digitally remove any Mercedes badges because Mercedes Benz objected to seeing their luxury cars in a Bombay Slum setting.

Your problem here would be Trademark infringement and not copy-write. It also depends on how the characters use the Mercedes.

Nope. Trademark is an anti counterfeiting and consumer protection law. It exists to protect consumers from accidentally buying the wrong product. A consumer cannot accidentally buy a book when they actually meant to buy a car.

Your problem here would be Trademark infringement and not copy-write. It also depends on how the characters use the Mercedes.

Nope. Trademark is an anti counterfeiting and consumer protection law. It exists to protect consumers from accidentally buying the wrong product. A consumer cannot accidentally buy a book when they actually meant to buy a car.

That is the simple term. Owning a Trademark however is far more reaching than that. You are referring to Trademark Infringement protection but, like I pointed out once you own a Trademark then the Trademark is also protected against Trademark Defamation and Trademark Dilution.
You couldn't really Infringe a trademark in a fictional book but, you can quite easily Tarnish or Dilute it and for this get yourself sued.

This is also the method that hotel owners have managed to sue posters on Trip Advisor in the past. They can't sue everybody just for leaving a bad review but if they mention the name of the hotel in the actual review then they can and have sued and won damages for Trademark Defamation.