public performance or copyright
George Bergstrom
Thanks,
George
--
George C. A. Bergstrom
Business Reference Librarian
Management & Economics Library
Purdue University
Lafayette, IN 47907
(765) 494 - 2918
Gillian Wiseman
CJ Ovalle
It's come up once on ALA's Library Copyright Website (http://www.librarycopyright.net/) here:
http://www.librarycopyright.net/wordpress/punbb/viewtopic.php?id=1425
Ruth Dukelow, who's a fellow member of the Copyright Advisory Network from that site, wrote this:
---
In the case of public performances of movie DVDs or movie videos, the exceptions are narrow because the movie performance is a "dramatic" performance under section 110. Section 110(1) allows dramatic public performances in the classroom, but most other exceptions in section 110 do not cover "dramatic" public performances.
For games, however, I would argue that the public performance of a game is not "dramatic" under section 110 and that, therefore, the exception in section 110(4) would apply. As long as the public performance of the game complies with section 110(4) - i.e., performers are not paid, audience doesn't pay to attend, nonprofit, etc. - then no infringement.
Please note, however, that labeling a game performance as "nondramatic" is only my opinion. I do not have case law to back this up.
---
I'd also argue that for a console game in particular (which generally do not have EULAs you must agree to), you've got a strong fair use case.
Carlos Ovalle
Joseph Wilk
John Scalzo
Scott Nicholson
public performance" - I did a little research.
I came across this court case from the US Court of Appeals
"ALLEN v. ACADEMIC GAMES LEAGUE OF AMERICA 89 F.3d 614 (9th Cir.
1996)" http://bulk.resource.org/courts.gov/c/F3/89/89.F3d.614.html
In this case, it was a non-profit company running tournaments using
Allen's games. Allen had several issues, one of which was the public
performance of his games.
From the discussion:
"A. Public Performance
The Copyright Act of 1976 confers upon copyright holders the exclusive
right to perform and authorize others to perform their copyrighted
works publicly. See 17 U.S.C. § 106(4). "Perform" and "publicly" are
defined in the Copyright Act as, respectively, "to recite, render,
play, dance, or act it, either directly or by means of any device or
progress ..." and "to perform or display it at a place open to the
public or at any place where a substantial number of persons outside
of a normal circle of a family and its social acquaintances is
gathered...." 17 U.S.C. § 101. In applying these statutory definitions
to the playing of Allen's games in a tournament setting, we conclude
that the playing of a game is not a "performance" within the meaning
of the Copyright Act.
Allen maintains that the language of Section 106(4) precludes AGLOA
from conducting their national tournament because it constitutes a
public performance of his protected literary works, the subject
copyrighted games. Allen contends that a purchaser of a board game
only obtains the right to play the board game in settings that are not
"public" because playing or performing the games publicly is a right
held exclusively by the copyright holder under § 106(4). However, the
interpretation of "play," as used to define "perform" in § 101 of the
Copyright Act, has generally been limited to instances of playing
music or records. See Polygram Intern. Pub., Inc. v. Nevada/TIG, Inc.,
855 F.Supp. 1314, 1321 (D.Mass.1994); Hickory Grove Music v. Andrew
Andrews, 749 F.Supp. 1031, 1036 (D.Mont.1990), but cf. Red
Baron-Franklin Park, Inc. v. Taito Corp., 883 F.2d 275, 278-79 (4th
Cir.1989), cert. denied, 493 U.S. 1058, 110 S.Ct. 869, 107 L.Ed.2d 952
(1990), (holding that a video arcade owner's use of copyrighted
circuit boards in coin-operated video machines available to the public
for a fee constituted public performance of the copyrighted work under
§ 106(4)). The term "play" has not been extended to the playing of
games. To do so would mean interpreting the Copyright Act in a manner
that would allow the owner of a copyright in a game to control when
and where purchasers of games may play the games and this court will
not place such an undue restraint on consumers.
Whether privately in one's home or publicly in a park, it is
understood that games are meant to be "played." In this situation, the
games are being played by students who come together for the purpose
of friendly, academic competition. There is no indication that this
nonprofit corporation, AGLOA, and the individual respondents are
making the subject games available to the public for a fee. The
students, schools, and school districts use their own games, purchased
from Allen, in the tournaments, and respondents are merely organizers
of this event. Moreover, AGLOA's tournaments are limited to students
who participated in regional competitions which also involved the
playing of Allen's games.
Even if the playing of games could constitute a performance, we would
have to recognize the applicability of the fair use doctrine under
Section 107 of the Copyright Act. This section allows the fair use of
a copyrighted work in such instances as for nonprofit educational
purposes and where the effect of the use upon the potential market for
or value of the protected work is limited. As indicated above, AGLOA
tournaments are held not for profit, but for encouraging education
among young students. The potential market for the subject games has
in all likelihood increased because participants of the AGLOA
tournament have had to purchase Allen's games. Analysis of other
factors involved in § 107 leads this court to conclude that the
application of the fair use doctrine in this case is clearly
appropriate.
"
This decision has been cited in 10 other cases, and I couldn't find
anywhere where it was overturned. I'm not a law researcher, but I did
use Lexus-Nexus's Shepardizing tools.
So, assuming that we aren't charging for the tournament, we would be
supported by this case decision if there was a lawsuit.
And now, I'm going to talk about this for the upcoming Games in
Libraries podcast!
Scott Nicholson, Associate Professor, Syracuse University School of
Information Studies
Erwin
advertising that libraries are essentially providing when they host
video gaming events. Some of the parents who see our Wii tournaments
tell me that they just have to buy one of these things for their kids.
They even ask about the other consoles and how they compare. Having
gaming at libraries wouldn't cost Nintendo, Sony, or Microsoft a cent
in promotions compared with displaying their equipment at Target or
Gamestop.
George Bergstrom
Thanks to all for the responses.
George
Joseph Wilk
Gillian Wiseman
-----Original Message-----
From: LibG...@googlegroups.com [mailto:LibG...@googlegroups.com]On Behalf Of Joseph Wilk
Sent: Thursday, June 05, 2008 2:36 PM
To: LibG...@googlegroups.com
John Scalzo
Beth Gallaway
http://www.joystiq.com/2008/06/04/law-of-the-game-on-joystiq-much-ado-about-game-night/
as well as the topic of a post at Game Politics:
http://www.gamepolitics.com/2008/06/02/do-library-amp-church-game-nights-violate-eula
I would imagine the console companies would be happy to get the free advertising that libraries are essentially providing when they host
video gaming events.
By that reasoning, Erwin, companies that make VCRS/DVD players should be happy for free advertising they'd get from movies being shown at the library :)
Eli, do you have something in writing from Nintendo that you can share? *hopeful look*
Really, the public performance issue varies from game to game/publisher to publisher. Red Octane says Go For It! Konami says, No! Read on for details.
Red Octane's Guitar Hero product has no such splash screen; neither does MTV/Harmonix/Activision's Rock Band. From a conversation I had with Red Octane in Feb, via email:
Me: What is the law in regards to public performance of Guitar Hero? Do I need a license? What are the rules for non-Red Octane sponsored programs?
Rechsteiner, Kyle <krechs...@redoctane.com>
to Beth Gallaway <informatio...@gmail.com>
date Wed, Feb 6, 2008 at 2:28 PM
subject RE: Redoctane Contact Feedback
Hey Beth,
We encourage people to hold Guitar Hero events. There are things we'd need to consider if we are ever listed as an official "sponsor" of an event, though. Otherwise, we can just support with prizing and we have no worries. Also, if you choose to pass on our involvement, that is fine as well.
Thanks,
Kyle
RedOctane
Me: Is it ok to run a tournament with an entry fee?
Reply:
Hello,
You can run your event in whatever fashion you wish. I would not want to impose any rules on you. I realize that entry fees are often necessary to cover facility or prize costs.
Thanks,
Kyle
RedOctane
An image from Konami's Dance Dance Revolution Supernova 2 is attached. If you can't read it, it says:
"This game is for sale and se in hte USA, Canada and Mexico only. The copyrighted Music/Character/Artwork in this game are separately owned by the authors. This product is licensed for private, non-commercial use only. Public or commercial use may require a performing rights license from the holders for the copyrights in the music."
(c) 1998, 2007 Konami Digital Entertainment Co, LTD.
The book that comes with the game helpfully lists the credits; I'm in processing of writing to music copyright holders, now.
My expectation is that some company is going to realize that public performance licenses for games are going to be a moneymaker - OR game companies are going to address this issue (hopefully with a creative commons slant, use our product any way you wish, just don't claim ownership, try to make money, and don't forget to give credit) in the EULAs.
Beth
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504 Ocean Blvd #1 Hampton NH 03842
informatio...@gmail.com
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Erwin
I seriously doubt you can compare a Nintendo Wii to garden variety DVD
players. The latter are ubiquitous standard equipment, whereas video
game consoles are hugely marketed brand-critical phenomena. No one
asks me about the cool digital projector we use, but they sure as hell
ask about that Wii.
Beth Gallaway
I don't necessarily disagree with you; yes, you'd think the console manufacturers would appreciate it - most of the time, they don't actually make money on consoles, no matter HOW many they sell - the money made in the gaming industry mostly comes from the sales of the games, themselves. Sony lost over $200 on each PS3, Microsoft lost about $75 per console (the Wii is an exception - it's not a loss leader like other consoles).
I have not a doubt that library patrons spend money to own items of all kinds that they see or check out of the library, whether it's books, magazines, videos, CDs, or games.Often kids who come to gaming programs own the games we are playing or have played them at a friend's house.
Incidentall there is even some evidence to show the people who pirate the most music are actually the biggest spenders on music, according to Cory Doctorow and a (slightly dated) study from Jupiter Communications: http://findarticles.com/p/articles/mi_m0EIN/is_2000_July_21/ai_63590127. It's a good argument to apply to games: that exposure = sales. I'm just not sure it will hold up in court.
The bigger question, I guess, is how do we continue to provide these timely, popular programs while still being a model of ethical use of the content? I was on board with the "do it til you get a cease and desist order" until Mr. Methenitis pointed out, this really isn't an acceptable solution ;)
Beth G