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Copyright Law/Fair Use Law/Fan Based Card Sets
Topic Started: Feb 17 2009, 05:20 AM (1,187 Views)
lastchance
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I looked up copyright law and talked with some people that I know about it. I was told about the Fair Use Law and looked it up on the copyright office site and it stated these four fundamentals:

1. - the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
2. - the nature of the copyrighted work;
3. - 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.


I also found this easy to read online comic at the Center for the Study of the Public Domain found here: http://www.law.duke.edu/cspd/comics/zoomcomic.html

Here you can find all the things that can and can't be done. I noticed through my reading something that I have brought up before that I think would be the determining factor of any company coming after us. I've said before that I don't believe any company is going to come after us as long as we show that no one is profiting from making the cards and we're not hurting any type of copyrighted property by making our own cards. The comic companies aren't going to come after us since all we're doing is helping promote their characters and there is nothing to sue for (if we're not making money off of the cards then there isn't any money for them to go after) and UDE won't care because they're done with the game so it's not like we'd be competing with them for some kind of market since and most importantly... no one would be making money off the cards! Honestly though they would be cards to us, but just pieces of paper to others. No one can go copy or make something as a replica that's already copyrighted to plan to sell to make a profit from, but as long as we're not making any money and we're making something NEW from existing materials I believe that is enough to fall under fair use and what the judge (real life) is talking about at the end of the online comic.
Edited by lastchance, Feb 17 2009, 05:22 AM.
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blues686
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so we can make fan sets with no problems...

yea!!! [grin]
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Luther Bob
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A couple of people that I play with expressed concern about the legal ramifications of fan-created sets...and I essentially told them what you have posted about lastchance. As you said...how can we be sued if there is no money involved. That would be like suing a kid in art class for drawing Batman or Wolverine for a project. LoL [pirate]
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CaptainIreland
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None of the following are predictions of things to come, but clearing up misunderstandings about possibilities. Take it as you will.

Quote:
 
The comic companies aren't going to come after us since all we're doing is helping promote their characters


Not true. If Marvel or DC decide to license their characters out for any other trading or playing card prospect, they would likely want to stop other people from making their own card game.

Quote:
 
and there is nothing to sue for (if we're not making money off of the cards then there isn't any money for them to go after)


Not true. They can go after you for monetary damages and take money OTHER than profits. You could, theoretically, be ordered to pay them even if the cards never turned a profit. How would it feel to go to work in the morning knowing you'd just have to send your paycheck to DC?

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and UDE won't care because they're done with the game so it's not like we'd be competing with them for some kind of market


Not true. This is why they're retaining the rights to the VS System engine. If they ever want to use it again, they'd come after you with a Cease-and-Desist order. If they want to release ANY card game, they'll come after you with a Cease-and-Desist order because it's in their interest to minimize competition (they'd LOVE to just shut Magic down without much hassle).

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since and most importantly... no one would be making money off the cards!


Money made off of these cards is irrelevant. Just doing it for free can get you in just as much trouble.

We've had this discussion before, lastchance. Fair Use doesn't help you here.
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blues686
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CaptainIreland
Feb 17 2009, 05:44 AM
None of the following are predictions of things to come, but clearing up misunderstandings about possibilities. Take it as you will.

Quote:
 
The comic companies aren't going to come after us since all we're doing is helping promote their characters


Not true. If Marvel or DC decide to license their characters out for any other trading or playing card prospect, they would likely want to stop other people from making their own card game.

Quote:
 
and there is nothing to sue for (if we're not making money off of the cards then there isn't any money for them to go after)


Not true. They can go after you for monetary damages and take money OTHER than profits. You could, theoretically, be ordered to pay them even if the cards never turned a profit. How would it feel to go to work in the morning knowing you'd just have to send your paycheck to DC?

Quote:
 
and UDE won't care because they're done with the game so it's not like we'd be competing with them for some kind of market


Not true. This is why they're retaining the rights to the VS System engine. If they ever want to use it again, they'd come after you with a Cease-and-Desist order. If they want to release ANY card game, they'll come after you with a Cease-and-Desist order because it's in their interest to minimize competition (they'd LOVE to just shut Magic down without much hassle).

Quote:
 
since and most importantly... no one would be making money off the cards!


Money made off of these cards is irrelevant. Just doing it for free can get you in just as much trouble.

We've had this discussion before, lastchance. Fair Use doesn't help you here.
i posted this in the council thread not sure if you seen it or not. this is in regards of copyright issues

"This reminds me of a fantasy fighting game for the pc call MUGEN where players use/ create characters from exisiting fighting games or other licenses and the companies of theses license dont come after these people. and this game is well exposed to the computer gamers out there. Theres dc characters, marvel characters, movie characters, anime characters, cartoon characters, all the fighing game properties out there, you name it its in mugen. no one has gotten sued. no one is making money. These are copyrighted characters that are being used by fans with out any profit."

i also said this from a comment of another poster

" tchalla
Feb 16 2009, 03:24 PM

Marvel and DC might let it slide.

They might not.

If they sell the rights to another company to make a game, the cease and desist will come along shutting down access to new characters and fan stuff, almost guaranteed.

"well i'll bring up the Mugen game again.

The game is still updated with characters from many fighting game properties such as street fighter, mortal kombat, fatal fury ect. its also updated constantly with new dc/marvel characters. This is has been going on for yeeeeears!

now during those years many games using those copyrighted characters have been released and were successful. Til this day no c&d has ever been issued to anyone. If this can happen without any interference by the companies of the licensed characters since the release of mugen then it can be done with vs with no problem. especially since mugen is more widely known by people then vs system is"


what are your take on this situation with mugen... its the same as making fan made sets with vs system.
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CaptainIreland
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blues686
Feb 17 2009, 05:55 AM
what are your take on this situation with mugen... its the same as making fan made sets with vs system.
My take on MUGEN:

It's illegal. There's no question.

Note that Capcom (at least) WAS contacted about the game, and gave it their blessing, as they considered it fanart.

Why was this their reasoning? Who knows? I am not a lawyer for Capcom, so I cannot speculate as to why they consider it fanart, while many other works are not (something in Japan called SFO had a problem with Capcom shutting them down).
Edited by CaptainIreland, Feb 17 2009, 06:12 AM.
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Luther Bob
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Well...let's be real here. COULD Marvel/DC/UDE try to make us stop? Yes. Will they.......can't imagine it. Star Wars.....still going 10 years later...

I am going to make cards...so are many other people...if you're scared of getting sued because you created a card about Superman...I don't know what to tell you.

Fansets for Magic...YGO...VS....etc have existed for years....VS is at the bottom of the totem pole as far as what Marvel and DC have on their plates...and UDE has so many issues with losing YGO and NBA....they haven't cared about VS since WOW came about.

In other words...have fun making your fan cards. [grin]
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CaptainIreland
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Luther Bob
Feb 17 2009, 06:29 AM
Well...let's be real here. COULD Marvel/DC/UDE try to make us stop? Yes. Will they.......can't imagine it. Star Wars.....still going 10 years later...

I am going to make cards...so are many other people...if you're scared of getting sued because you created a card about Superman...I don't know what to tell you.

Fansets for Magic...YGO...VS....etc have existed for years....VS is at the bottom of the totem pole as far as what Marvel and DC have on their plates...and UDE has so many issues with losing YGO and NBA....they haven't cared about VS since WOW came about.

In other words...have fun making your fan cards. [grin]
Well, Star Wars has the express consent of the copyright holder.

May I speak candidly?

I don't think this is ever going to get to the stage where this becomes an issue. This isn't Star Wars. It's going to be a couple dozen people spread across the USA claiming that they're organizing tournaments to keep the game running, but will lose time and interest in a few years.

I'm certainly not "scared" of being sued (frankly, a cease and desist order is the first step, and they're not suing for money, they're suing to make it a crime to continue). I'm simply explaining misconceptions other people have.

In other words, nothing I've said here is wrong. Ignore it if you choose, but ignorance is not a defense in court.
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HeroComplex
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I agree with CaptainIreland's take on things. I certainly can't bill myself as a copyright expert, but I'm learning, and I wouldn't recommend relying on common sense assumptions about what is legal.

It is entirely possible to be liable with no profit being generated. Yes, unjust enrichment is one source of liability---you can be forced to give your improper profits to the copyright holder. But you can also be held accountable for any lost profits the copyright holder suffers as a result of your non-profit activity, which can happen if your non-profit activity competes with the copyright holder's (or licensee's) own business.

There's also the concept of "moral rights." Moral rights still have limited scope in the US, but they protect the artist's relationship to the work even beyond the economic rights---notably, moral rights include an author's right to the integrity of his work, preventing alteration and distortion. I haven't covered this topic a great deal, but I've heard of them, and I think they demonstrate the need to tread carefully when guessing about legality.

Of course, we've also got to distinguish between legality, on the one hand, and intervention, on the other. This goes both ways.

Firstly, a lack of intervention does not imply legality. The fact that companies chose not to shut down MUGEN does not mean that MUGEN is legal, it just means that no one shut it down. And from a quick bit of reading, it does sound like the game honored some requests that companies not be used, which can easily be seen as an implicit recognition that the game is illegally infringing. Many companies, on the other hand, said that they consider the game fanart and therefore don't mind it. So really, the MUGEN situation doesn't seem to imply legality.

Secondly, illegality does not necessarily imply that copyright holders will step in or care. Like the MUGEN example above, regardless of whether the game is legal, if the companies' whose rights are being infringed don't care, then all is ok.


I'm not prepared to guess whether or not the proposals for fan continuation would infringe on either UDE's or Marvel's/DC's rights. Even if I had a personal guess, I'd worry about posting that guess as advice. But in any case, people tend to dramatically oversimplify copyright law. Both copyright infringement and fair use are complex doctrines, so there's reason to be cautious.
Edited by HeroComplex, Feb 17 2009, 06:51 AM.
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lastchance
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I personally believe that no company is going to give a bunch of people who are fans of a game that no longer is produced a hard time. We're definitely not infringing on anything they might be making money from at the moment. If UDE was going to stop people from making fan based cards they would have told us so years ago. They could have easily went to vsrealms and told them not to even allow their section for fantasy cards to continue if they were scared it was going to hurt their product. I think the same applies to Marvel and DC. I read somewhere on the net tonight where DC got involved when someone organized a charity auction involving art that was based on their characters. This sounded like a pretty big auction and DC stepped in and stopped it because they wanted a share of the money being generated. The crappy thing was that the auction was for children with cancer. Maybe there were other details that were left out, but that is what I read. I guess my point Herocomplex is that we're not making any money off of this and we're not competing with something they are already producing so I don't really think it will be a problem. In fact I know for a fact that people have been creating new playable versions of Marvel and DC characters for the old Marvel Superheroes RPG from the 80's and no one has done anything about it. That stuff is up all over the net for anyone to download and play with. No ones every gotten in trouble.

In the end what does it really come down to? It comes down to the fact that people have been making fan cards for years now with no consequences (for many different games). All we would be doing is "accepting" some cards that fans made as playable so we can still get together from time to time and play each other. It really isn't that different from us just printing home made cards and playing at home.
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lastchance
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By the way, I do respect your opinions and knowledge on the subject though!
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Luther Bob
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My respect goes out as well. My reason for speaking guys is so your comments don't totally discourage those making fan-sets.

I'm not stupid enough to 'assume' anything. I know C&D would usually come first. I know Star Wars has consent...ideally UDE would do the same in hopes that the game would continue enough so that if the day ever came that they could afford to pick up again...there would be interest.

No one is in court over this at the moment so...I think the point everyone wanted to make here has been made.

Some of us are saying 'make your fan-sets and have fun...there shouldn't be a problem' and some are saying 'shouldn't be but could...doubtful but could'. So maybe its time to agree that this is the case and move on so no one gets offended. Agreed? [pirate]
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HeroComplex
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I'm not suggesting in my post that anyone is likely to have trouble as a result of the fan sets (and similar) being discussed on this site. But I've seen a bunch of people chime in that surely this is legal, for one reason or another---that's mostly what I'm responding to. Not "we should be ok," but categorically "this is legal."

I wouldn't want people to join up with the fan infrastructure based on promises that fan tournaments and fan-designed product simply don't infringe. I guess you could say I'm trying for informed consent, so that people don't sign up based (partly) on a legal misapprehension.

Though I obviously can't speak for him, btw, I'm guessing this reasoning apples to CaptainIreland's posts, too.
Edited by HeroComplex, Feb 17 2009, 03:25 PM.
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Luther Bob
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Right right. You are to be commended for that.

We all just wanna flip VS cards right? [bounce]

[pirate]
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CaptainIreland
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Herocomplex is spot on with my reasoning for posting. I am speaking only to the legality of the issue, not to the morality.

lastchance
 
We're definitely not infringing on anything they might be making money from at the moment.


Unfortunately, you can't know that. They could be cooking up a card game right now.

lastchance
 
If UDE was going to stop people from making fan based cards they would have told us so years ago. They could have easily went to vsrealms and told them not to even allow their section for fantasy cards to continue if they were scared it was going to hurt their product.


Not at all. As the MUGEN example shows, sometimes a copyright holder let's his work be infringed upon. That could be what's happening with fan cards on VSrealms.

Quote:
 
I read somewhere on the net tonight where DC got involved when someone organized a charity auction involving art that was based on their characters. This sounded like a pretty big auction and DC stepped in and stopped it because they wanted a share of the money being generated. The crappy thing was that the auction was for children with cancer. Maybe there were other details that were left out, but that is what I read.


Yes, I recall that. However, that auction was right around the time that DC's ownership of Superman was in serious doubt (due to the loss of Superboy and the Siegels' ongoing lawsuit). The reason for the suit, presumably, wasn't because they wanted the money; the reason was they had to protect their Intellectual Property. Otherwise, the Siegels coud use that as another (recent) example of how Superman did not belong to DC.
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