Fallout 4 mod adds David Ortiz as a wasteland warrior, MLB gets mad
56 replies, posted
[QUOTE=wickedplayer494;49116981]Okay then MLB, let's go DMCA every Vine and Twitter and Instagram post showing any MLB game, because you always have that disclaimer in the TV broadcasts. That'll keep your teams' fans watching surely![/QUOTE]
They do this because they have to. If they don't the value of their brand starts to deminish.
[QUOTE=Hamaflavian;49117728]One of the four factors used for determining fair use is potential market impact. Say MLB wanted to release some promotional DLC for Fallout 4 where you got some team uniforms to wear in-game, this mod would undermine that market, meaning damaging a potential source of income, and that would actually be grounds for disqualifying it as fair use.
[editline]14th November 2015[/editline]
I figured as much, I just didn't want to jump to conclusions because the idea that a wearable video game Red Sox uniform is somehow a parody of the Red Sox is a pretty stupid idea.[/QUOTE]
How is having a real life character in a fictional setting not parody?
Parody is so vague it either means nothing or it means a lot of things.
You're definition I feel, would also disqualify all you tubers from "fair use"
[QUOTE=Lord of Boxes;49117763]They do this because they have to. If they don't the value of their brand starts to deminish.[/QUOTE]
So next season, let's go hunting for posts, and sending them all in to the MLB's legal email so they send in DMCAs, then watch as the fans start getting in a big uproar.
[QUOTE=HumanAbyss;49117767]How is having a real life character in a fictional setting not parody?
Parody is so vague it either means nothing or it means a lot of things.
You're definition I feel, would also disqualify all you tubers from "fair use"[/QUOTE]
The mod is for the uniforms, not David Ortiz himself, and even if it was, there's no reason to think that that automatically qualifies as parody.
Parody is when you imitate something in an exaggerated way with the specific aim of poking fun at it. Obviously it's inherently rather subjective, but not so much that it's a meaningless categorization.
And yeah, maybe that definition would disqualify youtubers as fair use. That particular debate's not over. The thing is, it's not my definition, it's [I]the[/I] definition.
[QUOTE=Hamaflavian;49117806]The mod is for the uniforms, not David Ortiz himself, and even if it was, there's no reason to think that that automatically qualifies as parody.
Parody is when you imitate something in an exaggerated way with the specific aim of poking fun at it. Obviously it's inherently rather subjective, but not so much that it's a meaningless categorization.
And yeah, maybe that definition would disqualify youtubers as fair use. That particular debate's not over. The thing is, it's not my definition, it's [I]the[/I] definition.[/QUOTE]
How is it not a parody to place a real life thing in an incredibly far out scenario in a fictional world built on finding odd and dark humour in things?
Well, I do hope you and the rest of the people who argue for the continuation of the narrowing of "Fair use" enjoy the death of youtube, the death of in depth video game reviews, or anything else of that nature. The use of parody in your definition, is not "The" definition, it's one of the definitions that are used, as there are a multipliciity of views on what forms, and establishes parody. The argument is not over, you're right. But when you go "Obviously it's inheritely subjective, but not so much so that it breaks my definition" then you've essentially stepped beyond saying the "argument is not over" and you've declared your variation to be correct by definition, ending the argument.
This is the issue. Parody does extend pretty far depending on who's arguing what and who perceives it. So we either live with it like that, or we essentially neuter it to the point where it doesn't exist. What do you want out of that argument to be true because I don't see you playing devils advocate here.
[editline]14th November 2015[/editline]
So tell me, Hamflavian, if the use of "Red Sox" is too far, how is the use of the fucking baseball stadium itself, a boston icon, an owned symbol that fails to apply to fair use by your standards, how was a game studio able to put that in if your definition is "The" definition?
[QUOTE=HumanAbyss;49117827]How is it not a parody to place a real life thing in an incredibly far out scenario in a fictional world built on finding odd and dark humour in things? [/quote]
Because that doesn't actually accomplish anything as far as commenting on the thing itself. Putting a Red Sox uniform into a Fallout game says nothing about the Red Sox. Modders put all kinds of shit into Fallout games without intending any commentary on those additions.
[quote]
Well, I do hope you and the rest of the people who argue for the continuation of the narrowing of "Fair use" enjoy the death of youtube, the death of in depth video game reviews, or anything else of that nature.[/quote]
I wouldn't really enjoy that. I like let's players and video game reviewers. If there were some kind of change in trademark law that gave youtubers unchallenged legal security, I'd be all for it, but nobody is going to accomplish that by interpreting the law as it actually exists in a simplistic and ill-informed way.
[quote]
The use of parody in your definition, is not "The" definition, it's one of the definitions that are used, as there are a multipliciity of views on what forms, and establishes parody. The argument is not over, you're right. But when you go "Obviously it's inheritely subjective, but not so much so that it breaks my definition" then you've essentially stepped beyond saying the "argument is not over" and you've declared your variation to be correct by definition, ending the argument.
[/quote]
I'm sorry, I think I've misunderstood and miscommunicated. When you said, "Your definition", I thought you were talking about my definition of fair use, not my definition of parody. So when I said that "my definition is [I]the[/I] definition" I was talking about the definition of fair use, not the definition of parody.
[quote]This is the issue. Parody does extend pretty far depending on who's arguing what and who perceives it. So we either live with it like that, or we essentially neuter it to the point where it doesn't exist. What do you want out of that argument to be true because I don't see you playing devils advocate here.[/QUOTE]
Or there's a third way, we constantly adjust our legal understanding of parody over time according to the ever-changing context in which that parody exists, and we do it intuitively and subjectively. There's a reason our legal system isn't just a rigid set of laws, but also a constantly adapting body of precedent and interpretation. I'm trying not to approach this topic from the perspective of "which would I rather be true" but "which seems to be true already".
[editline]14th November 2015[/editline]
[QUOTE=HumanAbyss;49117827]
[editline]14th November 2015[/editline]
So tell me, Hamflavian, if the use of "Red Sox" is too far, how is the use of the fucking baseball stadium itself, a boston icon, an owned symbol that fails to apply to fair use by your standards, how was a game studio able to put that in if your definition is "The" definition?[/QUOTE]
As far as I know, Diamond City is never actually referred to as Fenway Park, but I could be mistaken. See, fair use actually does provide an out, in my understanding. One of the qualifications for fair use is that it can't undermine a market that the thing it's copying could potentially capitalize on. Diamond City, being a thing in a video game, is never going to undermine the same market as the actual Fenway Park, because Fenway Park's market is being a baseball stadium, and Diamond City's "market" is being a video game prop, the two couldn't compete with each other over anything.
[editline]14th November 2015[/editline]
All of which would be nullified, of course, if Bethesda simply got the MLB's permission to put Fenway Park in the game.
[QUOTE=Hamaflavian;49117728]One of the four factors used for determining fair use is potential market impact. Say MLB wanted to release some promotional DLC for Fallout 4 where you got some team uniforms to wear in-game, this mod would undermine that market, meaning damaging a potential source of income, and that would actually be grounds for disqualifying it as fair use.
[/QUOTE]
David ortiz decapitating people in a post apocalyptic universe is in no way related to his actual career. In my opinion it falls squarely under parody. Nobody's going to play fallout and go "yeah, now I don't need to go to the big game, I've got it all right here"
You could use the argument of a "potential market" in ANY fair use claim. It doesn't really hold water, unless the subject is making a profit.
[QUOTE=HumanAbyss;49117827]Well, I do hope you and the rest of the people who argue for the continuation of the narrowing of "Fair use" enjoy the death of youtube, the death of in depth video game reviews, or anything else of that nature. The use of parody in your definition, is not "The" definition, it's one of the definitions that are used, as there are a multipliciity of views on what forms, and establishes parody. The argument is not over, you're right. But when you go "Obviously it's inheritely subjective, but not so much so that it breaks my definition" then you've essentially stepped beyond saying the "argument is not over" and you've declared your variation to be correct by definition, ending the argument. [/QUOTE]
Let's plays are blatant violations of fair use and copyright law. The reason they don't get DMCA'd is they bring in good publicity for the games, and lots of income. Only an idiot would DMCA a let's play of their game(unless they cared about their game as a spoiler-free art medium more than revenue).
You may also be culturally adapted to think that let's plays are fair use, because everyone does it. To that, just because everyone does it, doesn't mean it's lawful.
[QUOTE]So tell me, Hamflavian, if the use of "Red Sox" is too far, how is the use of the fucking baseball stadium itself, a boston icon, an owned symbol that fails to apply to fair use by your standards, how was a game studio able to put that in if your definition is "The" definition?
[/QUOTE]
I haven't played fallout 4, but to quote yourself:
[QUOTE]So tell me, Hamflavian, if the use of "Red Sox" is too far, how is the use of the fucking baseball stadium itself, [B][U]a boston icon[/U][/B], an owned symbol that fails to apply to fair use by your standards, how was a game studio able to put that in if your definition is "The" definition?
[/QUOTE]
One is a landmark, the other is not. A city landmark isn't well protected under copyright law, though it may be to a minimal extent.
I'm so infringed right now, you don't even know.
-I take it back!-
[QUOTE=Lord of Boxes;49117763]They do this because they have to. If they don't the value of their brand starts to deminish.[/QUOTE]
it's a free mod
[QUOTE=willtheoct;49118970]Let's plays are blatant violations of fair use and copyright law. The reason they don't get DMCA'd is they bring in good publicity for the games, and lots of income. Only an idiot would DMCA a let's play of their game(unless they cared about their game as a spoiler-free art medium more than revenue).
You may also be culturally adapted to think that let's plays are fair use, because everyone does it. To that, just because everyone does it, doesn't mean it's lawful.
I haven't played fallout 4, but to quote yourself:
One is a landmark, the other is not. A city landmark isn't well protected under copyright law, though it may be to a minimal extent.[/QUOTE]
Actually lets plays fall squarely under "transformative works" so no you're wrong
[QUOTE=pdp;49119741]it's a free mod[/QUOTE]
Free is not an instant pass for fair use
[QUOTE=Dr. Evilcop;49117718]The same engine Skyrim, New Vegas, Fallout 3, Oblivion, and Morrowind uses. Based on GameByro from 1997.[/QUOTE]
These posts annoy me, yes the original engine was from 1997 but if it's been worked on for almost the past fucking 18 years obviously it's going to compete with today's standards, why would they remake a new engine for every game they make, do you know how expensive that would be? How time consuming? You'd be waiting probably three times as long as you are now for Bethesda games. The current engine even uses PBR for god's sake, regarding game art that's VERY new tech.
It's like construction workers, they don't build a whole new set of scaffolding for the next house, they just move what they have over and continue, except in Bethesda's case they've been adding to the scaffolding after every house.
[QUOTE=willtheoct;49118970]Let's plays are blatant violations of fair use and copyright law. The reason they don't get DMCA'd is they bring in good publicity for the games, and lots of income. Only an idiot would DMCA a let's play of their game(unless they cared about their game as a spoiler-free art medium more than revenue).
You may also be culturally adapted to think that let's plays are fair use, because everyone does it. To that, just because everyone does it, doesn't mean it's lawful.
[/QUOTE]
No?
Thats not at all how that works.
Its completely lawful.
i swear, as patent lawyers have to have an actual science degree, copyright lawyers should have an additional degree to teach them fair use
its really annoying how the system works today, you have to prosecute regardless because if they didn't do this, then they're giving up the copyright, even though its right in fair use
[editline]15th November 2015[/editline]
[QUOTE=willtheoct;49118970]Let's plays are blatant violations of fair use and copyright law. The reason they don't get DMCA'd is they bring in good publicity for the games, and lots of income. Only an idiot would DMCA a let's play of their game(unless they cared about their game as a spoiler-free art medium more than revenue).
You may also be culturally adapted to think that let's plays are fair use, because everyone does it. To that, just because everyone does it, doesn't mean it's lawful.
I haven't played fallout 4, but to quote yourself:
One is a landmark, the other is not. A city landmark isn't well protected under copyright law, though it may be to a minimal extent.[/QUOTE]
lets plays are fair use derivative works
[QUOTE=Radical_ed;49118891]David ortiz decapitating people in a post apocalyptic universe is in no way related to his actual career. In my opinion it falls squarely under parody. Nobody's going to play fallout and go "yeah, now I don't need to go to the big game, I've got it all right here"
You could use the argument of a "potential market" in ANY fair use claim. It doesn't really hold water, unless the subject is making a profit.[/QUOTE]
In my opinion, it wouldn't, but that would be up to a judge to decide.
That's right, you could object to any fair use claim on the grounds of potential market infringement, that's why there are other factors in determining fair use, and that's why it's ultimately up to a judge to decide if such an objection would be frivolous or not.
[QUOTE=sam6420;49121218]This is idiotic and nothing will happen from it. If anything did happen to this modder, I'm sure the modding community would just go on an all-out red-sox modding rampage. You can't fight the internet.[/QUOTE]
Can't stop the signal.
[editline]15th November 2015[/editline]
Speaking of which, i already found a mirror of the mod.
[QUOTE=wickedplayer494;49117799]So next season, let's go hunting for posts, and sending them all in to the MLB's legal email so they send in DMCAs, then watch as the fans start getting in a big uproar.[/QUOTE]
I never said it's a good system, either.
[editline]15th November 2015[/editline]
[QUOTE=pdp;49119741]it's a free mod[/QUOTE]
I didn't say it applied to the mod, I said it applied to the things he said.
[QUOTE=HumanAbyss;49120278]Actually lets plays fall squarely under "transformative works" so no you're wrong[/QUOTE]
[QUOTE=AaronM202;49121077]No?
Thats not at all how that works.
Its completely lawful.[/QUOTE]
[QUOTE=Sableye;49121153]lets plays are fair use derivative works[/QUOTE]
In case none of you were aware, all criteria of "fair use" is subjective in nature, and a "little bit" of transformation in the work does not usually mean fair use.
In other words, fair use isn't a checklist to be met. It's a judgment of whether or not you put in enough work to reasonably be allowed to use someone else's work.
With that in mind, what does a standard let's play have?
-The game being played
-A video of the player in the bottom corner
What might a let's play need to be considered fair use, but doesn't?
-Video editing with a purpose, whether it be splicing, or adding in effects
-The experience presented could be one other than the developer's intentions. For instance, a speedrunner does not just channel the intended emotional and psychological impact of a game to the audience. Instead, the game is played to be abused, and not to be enjoyed. This change in how the game is presented is different from what the developer created, so is much more transformative than a let's play.
Consider this video:
[video=youtube;oXp8Th41rBs]http://www.youtube.com/watch?v=oXp8Th41rBs[/video]
The author:
-Put in a lot of effort into editing it, for its length
-Used his own creativity, or someone's creativity that isn't the developers, to abuse the game's character and combat mechanics. Everything happening in the video is arguably not the developer's intentions, though a nice side-effect to everything else they made.
This video is definitely fair use. Given the amount of work the author put into it, the impact the work has on the developers(it boosted sales if anything), and the amount of the original work used, it's very reasonably under fair use, even though it is commercial nature(youtube is commercial, that's what counts here)
Now, consider this video:
[video=youtube;FzeULO59hG0]http://www.youtube.com/watch?v=FzeULO59hG0[/video]
The author:
-did next to no editing
-Played the game in exactly the way the developer intended. This is the developer's work, not to be mistaken as the author's.
-but he did have 20 minutes of original speech, and put thought into it. (and let's plays don't put that thought into it)
Given that he did fuck-all to turn the developer's work into his own, given the nature (youtube, commercial) of the video, it isn't fair use. It isn't fair use, even if it(the creative value, not the opinion presented) may not have a huge impact on the developers, and doesn't use a large part of the game. There's simply a disproportionally low amount of effort put in by the author.
[B]TL;DR[/B]: saying "let's plays" are transformative works is [U][B]REALLY[/B][/U] stretching it, and by most standards, is false.
I'm having a really fucking hard time understanding how layering 3 minutes of text, music, and just using visible editing techniques makes a video "Fair use" where as layering 20 minutes of unique speech and writing of your own design is of no value to you and breaks "fair use" just because it's over top of gameplay.
So I have to ask, as phil fish can easily claim that video and isn't making money from that video being up, why hasn't he?
Under your breakdown of this, he's MATTER OF FACTLY breaking fair use, so how, according to you, is this not taken down? Fish, unlike in your earlier examples, doesn't benefit from the video showing his gameplay, so why is it still up under fair use? It shouldn't be, you've made that abundantly clear, so how is it? Can you flag it for breaking fair use? Maybe you should because you're the apparent expert on a subjective, and slippery topic?
People are throwing around fair use here a lot but I'm not so sure this technically applies. I mean there's no commentary, no parody, no reporting, no teaching or academic research... it's literally just using the image of a copyright in a game.
[QUOTE]17 U.S.C. § 107
Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:
1)the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2)the nature of the copyrighted work;
3)the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4)the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.[/QUOTE]
Basically it's vague as fuck and there are all sorts of way they could twist all of those points if they really wanted to. It seems excessively petty to try and invoke copyright against a free mod that's not really offensive as far as I see it though.
[QUOTE=HumanAbyss;49127873]I'm having a really fucking hard time understanding how layering 3 minutes of text, music, and just using visible editing techniques makes a video "Fair use" where as layering 20 minutes of unique speech and writing of your own design is of no value to you and breaks "fair use" just because it's over top of gameplay.
[/quote]
Speech being overlaid on a video has little to no transformative value, and also has little work put in. I'm sure any unexperienced user could make a 20 minute commentary, given 10 minutes of prep time to make talking points, and 20 minutes to talk. Add an extra 20 minutes to record gameplay separately.
Whereas the first video might take ~5 hours to record, 20 minutes to splice, and 2 hours for editing stupid jokes into it. Assuming, of course, the user has a fair amount of experience with the tools.
So the work put in, versus work taken from the original work, is much higher in the first video, than the second.
[quote]
So I have to ask, as phil fish can easily claim that video and isn't making money from that video being up, why hasn't he?
Under your breakdown of this, he's MATTER OF FACTLY breaking fair use, so how, according to you, is this not taken down? Fish, unlike in your earlier examples, doesn't benefit from the video showing his gameplay, so why is it still up under fair use? It shouldn't be, you've made that abundantly clear, so how is it? Can you flag it for breaking fair use? Maybe you should because you're the apparent expert on a subjective, and slippery topic?[/QUOTE]
In this particular case, the [URL="https://en.wikipedia.org/wiki/Streisand_effect"]Streisand Effect[/URL]. Phil Fish isn't dumb. He knows DMCA'ing this would just make matters worse for him.
And as far as I'm aware, only the rights holder can claim a DMCA. I wouldn't care to do so even if I could.
Those are several different layers of assumptions about the effort that went into each video.
You already made it clear time playing doesn't count so, the "transformative" element of each piece comes down to its nature. I would say that a well put together speech is of the same value as any other carefully crafted creative venture.
So if lets plays, commentaries, reviews that contain gameplay are all wrong and illegal and are unfair uses of "fair play" then what's the next step? Say goodbye to YouTube in a few months when the TPP passes?
I just see this as a serious infringement on creativity as a whole. Copyright law in our countries is a mess and only getting worse.
[QUOTE=HumanAbyss;49140503]So if lets plays, commentaries, reviews that contain gameplay are all wrong and illegal and are unfair uses of "fair play" then what's the next step? Say goodbye to YouTube in a few months when the TPP passes?[/QUOTE]
Copyright infringement is a civil offense, not criminal, so it's up to the rightsholder to decide whether or not they're injured by it. Willtheoct already pointed out that most rightsholders are smart enough not to go after works that are giving them free publicity.
If I'm a teenager making a Star Wars movie in my backyard for fun and putting it on Youtube I probably have nothing to worry about. If I make a professionally-produced Star Wars movie for fun and put it on Youtube I might want to contact Disney's lawyers. If I make a professionally-produced Star Wars movie and sell it for profit I ought to expect a C&D within hours. All three of these cases are copyright infringement, that doesn't mean they're equally 'wrong' or equally likely to result in legal action.
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