Is Machinima Legal?
Lawyers Unsure Whether Machinima is Fair Use
When game makers created games, they had no idea that their games would be used as an engines to create 3D animated movies. However, now that people are using games as filmmaking tools, they are beginning to think whether machinima violates copyrights of the gamemaker and if so, what kind of rules they should create.
What is Machinima?
A machinima (used both in singular and plural forms) is an animated film that uses 3D virtual worlds that already exist– such as games or Second Life-- to create the film. For instance, World of WarCraft, The Sims, Halo, and CounterStrike have all been used to create machinima. These virtual worlds are used for not only their background/scenery but also the characters. Machinima.com is one of the best sites for compiled machinima.
Game companies aren’t opposed to machinima. To some extent, they are flattered and excited that their products are being used for creative productions. However, they are worried because they aren't sure whether or not machinima violates copyright laws. Some think that machinima violates copyright because the machinima maker is using visual and technical elements that were developed by another person for a different purpose.
Is Machinima Fair Use?
In the realm of copyright law, however, there is the notion of fair use, which can provide legal safety to artists that create transformative work. For instance, drawing a painting based on someone else's photograph could be considered fair use-- but it would all depend on how many elements of the photograph was copied, whether or not the painting was for sale, and so forth. At the end of the day, there is no clean-cut definition of fair use; it all depends on who interprets it.
The problem with machinima is that even the lawyers who work for the game companies can't agree on what is fair. Most games currently ban machinima makers from creating work for commercial purposes, but allowing people to submit machinima to film festivals. Of course, at this point, lawyers are also arguing what exactly a “commercial purpose" is.
Of all the games that are out there, The Sims is one of the most open games published to machinima. The upcoming Sims 3 even has a video capturing tool that makes it easy to create machinima within Sims.
However, even within Sims, if there are product placements or other trademark items, machinima becomes a problem. For instance, if the character in the game is wearing a T-shirt that was actually a product placement, would it be okay to portray that T-shirt in the machinima? Those are the types of questions game company lawyers are trying to answer.
The videogame Halo was used to make machinima
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