Editing Machinima (section)

==Legal issues==

New machinima filmmakers often want to use game-provided [[digital asset]]s,<ref name="Kelland 96">{{harvnb|Kelland|Morris|Lloyd|2005|p=96}}</ref> but doing so raises legal issues. As [[derivative work]]s, their films could violate copyright or be controlled by the assets' copyright holder,<ref name="Kelland, 98">{{harvnb|Kelland|Morris|Lloyd|2005|p=98}}</ref><ref name="Varney, 2">{{harvnb|Varney|2007|p=2}}</ref> an arrangement that can be complicated by separate publishing and licensing rights.<ref name="Kelland, 98"/> The [[software license agreement]] for ''[[The Movies (video game)|The Movies]]'' stipulates that [[Activision]], the game's publisher, owns "any and all content within... Game Movies that was either supplied with the Program or otherwise made available... by Activision or its licensors..."<ref name="Quoted in Varney, 2">Quoted in {{harvnb|Varney|2007|p=2}}</ref> Some game companies provide software to modify their own games, and machinima makers often cite [[fair use]] as a defense, but the issue has never been tested in court.<ref name="Kelland, 98-99">{{harvnb|Kelland|Morris|Lloyd|2005|pp=98–99}}</ref> A potential problem with this defense is that many works, such as ''Red vs. Blue'', focus more on [[satire]], which is not as explicitly protected by fair use as [[parody]].<ref name="Sunder 2006, 309">{{harvnb|Sunder|2006|p=309}}</ref> Berkeley adds that, even if machinima artists use their own assets, their works could be ruled derivative if filmed in a [[proprietary software|proprietary]] engine.<ref name="Berkeley 2006, 69">{{harvnb|Berkeley|2006|p=69}}</ref> The risk inherent in a fair-use defense would cause most machinima artists simply to yield to a [[cease and desist|cease-and-desist]] order.<ref name="Hayes 2008, 569">{{harvnb|Hayes|2008|p=569}}</ref> The AMAS has attempted to negotiate solutions with video game companies, arguing that an [[open source software|open-source]] or reasonably priced alternative would emerge from an unfavorable situation.<ref name="Kelland, 98-99" /> Unlike ''The Movies'', some dedicated machinima software programs, such as Reallusion's [[iClone]], have licenses that avoid claiming ownership of users' films featuring bundled assets.<ref name="Varney, 2"/>

Generally, companies want to retain creative control over their [[Intellectual property|intellectual properties]] and are wary of [[fan-made|fan-created]] works, like [[fan fiction]].<ref name="Berkeley 2006, 69" /> However, because machinima provides free marketing, they have avoided a response demanding strict copyright enforcement.<ref>{{harvnb|Hayes|2008|pp=569, 582}}</ref> In 2003, Linden Lab was praised for changing license terms to allow users to retain ownership of works created in its virtual world ''Second Life''.<ref name="Marcus 2008, 80">{{harvnb|Marcus|2008|p=80}}</ref> Rooster Teeth initially tried to release ''[[Red vs. Blue]]'' unnoticed by ''Halo''{{'}}s owners because they feared that any communication would force them to end the project.<ref name="Kelland 99; Konow 2">{{harvnb|Kelland|Morris|Lloyd|2005|p=99}}; {{harvnb|Konow|2005|p=2}}</ref> However, Microsoft, Bungie's parent company at the time, contacted the group shortly after episode 2,<ref name="Kelland 99; Konow 2" /> and allowed them to continue without paying licensing fees.<ref name="Thompson 3">{{harvnb|Thompson|2005|p=3}}</ref>

A case in which developer control was asserted involved Blizzard Entertainment's action against Tristan Pope's ''Not Just Another Love Story''.<ref name="Lowood 2007, 190">{{harvnb|Lowood|2007|p=190}}</ref> Blizzard's community managers encouraged users to post game movies and screenshots, but viewers complained that Pope's suggestion of sexual actions through creative camera and character positioning was pornographic.<ref name="Lowood 2007, 188, 190">{{harvnb|Lowood|2007|pp=188, 190}}</ref> Citing the user license agreement, Blizzard closed discussion threads about the film and prohibited links to it.<ref name="Lowood 2007, 190" /> Although Pope accepted Blizzard's right to some control, he remained concerned about censorship of material that already existed in-game in some form.<ref name="Lowood 2007, 190-191">{{harvnb|Lowood|2007|pp=190–191}}</ref> Discussion ensued about boundaries between MMORPG player and developer control.<ref name="Lowood 2007, 190-191" /> Lowood asserted that this controversy demonstrated that machinima could be a medium of negotiation for players.<ref name="Lowood 2007, 191">{{harvnb|Lowood|2007|p=191}}</ref>

===Microsoft and Blizzard===
In August 2007, Microsoft issued its Game Content Usage Rules, a license intended to address the legal status of machinima based on its games, including the ''Halo'' series.<ref name="Hayes 2008, 569, 571">{{harvnb|Hayes|2008|pp=569, 571}}</ref> Microsoft intended the rules to be "flexible",<ref name="James 2007, 29">{{harvnb|James|2007|p=29}}</ref> and, because it was [[unilateral contract|unilateral]], the license was legally unable to reduce rights.<ref name="Hayes 2008, 570">{{harvnb|Hayes|2008|p=570}}</ref> However, machinima artists, such as [[Edgeworks Entertainment]], protested the prohibitions on extending Microsoft's [[fictional universe]]s (a common component of fan fiction) and on selling anything from sites hosting derivative works.<ref>{{harvnb|James|2007|pp=29–30}}; {{harvnb|Hayes|2008|p=570}}</ref> Compounding the reaction was the license's statement, "If you do any of these things, you can expect to hear from Microsoft's lawyers who will tell you that you have to stop distributing your items right away."<ref name="James 2007, 30">{{harvnb|James|2007|p=30}}</ref>

Surprised by the negative feedback,<ref name="James 2007, 30" /> Microsoft revised and reissued the license after discussion with Hugh Hancock and an attorney for the [[Electronic Frontier Foundation]].<ref name="Hayes 2008, 570" /> The rules allow noncommercial use and distribution of works derived from Microsoft-owned game content, except audio effects and soundtracks.<ref name="Hayes 2008, 571">{{harvnb|Hayes|2008|p=571}}</ref> The license prohibits [[reverse engineering]] and material that is pornographic or otherwise "objectionable".<ref name="Hayes 2008, 571" /> On distribution, derivative works that elaborate on a game's [[fictional universe]] or story are automatically licensed to Microsoft and its business partners.<ref name="Hayes 2008, 571-572">{{harvnb|Hayes|2008|pp=571–572}}</ref> This prevents legal problems if a fan and Microsoft independently conceive similar plots.<ref name="Hayes 2008, 571-572" />

A few weeks later, Blizzard Entertainment posted on WorldofWarcraft.com their "Letter to the Machinimators of the World", a license for noncommercial use of game content.<ref name="Hayes, 572">{{harvnb|Hayes|2008|p=572}}</ref> It differs from Microsoft's declaration in that it addresses machinima specifically instead of general game-derived content, allows use of game audio if Blizzard can legally license it, requires derivative material to meet the [[Entertainment Software Rating Board]]'s Teen content rating guideline, defines noncommercial use differently, and does not address extensions of fictional universes.<ref name="Hayes, 573-576">{{harvnb|Hayes|2008|pp=573–576}}</ref>

Hayes states that, although licensees' benefits are limited, the licenses reduce reliance on fair use regarding machinima.<ref name="Hayes, 576">{{harvnb|Hayes|2008|p=576}}</ref> In turn, this recognition may reduce film festivals' concerns about copyright clearance. In an earlier analogous situation, festivals were concerned about [[documentary film]]s until best practices for them were developed.<ref name="Hayes, 576-577">{{harvnb|Hayes|2008|pp=576–577}}</ref> According to Hayes, Microsoft and Blizzard helped themselves through their licenses because fan creations provide free publicity and are unlikely to harm sales.<ref name="Hayes, 577-579">{{harvnb|Hayes|2008|pp=577–579}}</ref> If the companies had instead sued for copyright infringement, defendants could have claimed [[estoppel]] or [[implied license]] because machinima had been unaddressed for a long time.<ref name="Hayes 2008, 580">{{harvnb|Hayes|2008|p=580}}</ref> Thus, these licenses secured their issuers' legal rights.<ref name="Hayes 2008, 580" /> Even though other companies, such as [[Electronic Arts]], have encouraged machinima, they have avoided licensing it.<ref name="Hayes 2008, 583">{{harvnb|Hayes|2008|p=583}}</ref> Because of the involved legal complexity, they may prefer to under-enforce copyrights.<ref name="Hayes 2008, 583" /> Hayes believes that this legal uncertainty is a suboptimal solution and that, though limited and "idiosyncratic", the Microsoft and Blizzard licenses move towards an ideal video gaming industry standard for handling derivative works.<ref name="Hayes 2008, 585, 587">{{harvnb|Hayes|2008|pp=585, 587}}</ref>