Use of canon characters within games

[Jason Pitre]

I am quite uncertain which forum is ideal for this topic, but publishing seems to be close enough.

My game is built on the principle of adaptability, enough that a wide number of genres and diverse selection of characters may be played fairly easily.  In order to showcase these strengths, I would love to reference common characters from modern fiction / culture  such as Superman, Luke Skywalker, or House.   The thorny issue is that copyright law is very restrictive on that kind of thing.  I know none (or very few of you) are copyright law, but you may know of examples where some of the following approaches were taken and if they worked out in the end.

1) Use of these names and shorthand descriptions within a published product (book) without paying for the permissions.
2) Use of these names and shorthand descriptions within a demo scenario, not technically published.
3) Writing up character sheets for these icons and displaying them at a con but not for sale.  "Look, you can make Darth Vader and he would look like this!"

Cheers!

[Ron Edwards]

Hiya,

I was going to write that I do #`1 all the time throughout my texts. Usually it's for brief, verbal touchpoint purposes, when I'm explaining X, and X seems exemplified by a particular character from fiction, or perhaps when I want to stress that X is not like Y for Superman or whoever. It's not too much different from naming a film title for the same reasons.

However, on re-examing your post, I'm not sure if that's what you mean. If you mean, do I present a game version of such a character as a means of explaining character creation or something similar, I don't. That's mainly because I dislike leaning on exterior material when I'm trying to promote my own. I haven't investigated this issue in legal terms.

All the above also applies to con scenario materials. I have, however, used off-the-net images for such things, such as photographs from IMDB for character portraits (i.e. as if that actor were portraying the character).

I definitely do not do #3, and again, for aesthetic reasons and not so much legal ones, which I don't know about.

For what it's worth, with the risk of my initial answer not serving your question at all, I've never faced any legal response to anything I've published, copyright based or otherwise.

Best, Ron

[Jason Pitre]

Your initial thought is generally what I was aiming for so your response is perfect.  Apologies for my somewhat unclear wording of the initial post.

The core conceit of my game is that it allows a group to play in the settings presented by existing books, movies, video games or setting-rich RPG's.  It's not simulations, but rather allows for a diverse set of different narratives within this single setting.    It's the "so how can we play on Pandara from Avatar", with some notable story game elements to the system.

I know that many of the mainstream games, such as Hero 5th edition for example, will only use generic versions of characters and thus I was uncertain if there was strong history of litigation or if it was simply precautionary by nature.

Thanks!   Any other feedback from the community?

[Eero Tuovinen]

Like Ron, I routinely use existing properties as illustrative examples. However, it is my belief that offering character write-ups or other such content as substantial part of your work has the potential to stray into the area of derivative work, potentially meaning copyright violation. The issue is complex because on the one hand we have valid references for analytical purposes (what would be considered to fall under Fair Use in the USA), and on the other hand we have derivative writing that does not substantially stand on its own merits. For example, creating a sourcebook where the whole point is to give game mechanical representations to DC superheroes would be something that I wouldn't do because the substance of the work would in this case largely derive from prior art.

My reading on this topic indicates that the issue of derivative work can be rather interpretative in that it rests on the intent of the work as much as its presentation. For example, it's pretty clearly established in the general literate culture that one can write a work of literary criticism that delves on a copyright-protected literary work rather closely without running afoul of copyright simply because your subject matter requires you to discuss the material - you're not relying on the other work's creative virtues, it just so happens that the other work is your subject matter, and it's thus necessary for you to mess about with it to discuss it. I treat copyrighted works in this same spirit when I discuss them in game texts: the work itself is not the substance or source of my own text, but rather only a topic on which I apply my own work. Thus I've decided to consider it permissible for myself to take a prior work and show how it can be analytically deconstructed to conform with the dramatic model of my game, for example.

This is a far from clear topic over-all, and there are nuanced differences in how the relevant principles are interpreted into law in different countries, so I don't imagine as a indie publisher that my knowledge of the topic and interpretation of the same would allow me to get clever and skirt the relevant laws without trouble. On the other hand, I don't want to contribute to the general sheepishness and fear people have about discussing or even mentioning works by other people; I need to set a moderate course and exert all the appropriate and positive freedoms I need to fully express myself. If doing that requires me to write literary analysis or cite key excerpts from other creators, that's all clearly within the spirit of how our literary culture has historically functioned. Roleplaying just happens to be such a minor field that we don't really have any truly authoritative guidelines of conduct of our own.

If I understand your intent correctly, Jason, you're not thinking of just mentioning Superman and discussing the property in the abstract, but you're also going to show how to adapt the work into your game system for play. The closest I've done to this is the set of example TV shows the Finnish edition of Primetime Adventures discusses: that book includes screenshots from the pertinent shows such as House alongside a short characterization of the show's core concept and some notes about how it would map into systematic terms in PTA. My belief is that this sort of thing is kosher for us to do because the purpose of those portions of the book is clearly analytical and descriptive of the game rather than the TV show, and there is no significant content derived from the original shows considered, so that no aesthetic value is being transmitted; the treatment is thus clearly analytical and for illustrative purposes only, not an attempt to slip in a derivative artistic work on the sly.

It should be remembered that while I can discuss (or at least believe I can) TV shows in a game text to illustrate how my fancy TV show simulator game works when utilized in combination with popular TV properties, doing the same in marketing can recharacterize otherwise innocent contents and run afoul of trademarks. For example, I wouldn't run a Star Wars -themed PTA advertisement, as that'd misrepresent the game's relationship to Star Wars pretty easily. For this reason I wouldn't try to ride an existing property in demo materials.

[Jason Pitre]

Thank you very much for the indepth analysis of the topic and your participation.  This is exactly the kind of rich thought that I had been seeking.     

I do agree that the spirit of the copyright encourages analysis and description of protected works.   Ignoring the pesky international aspects of the argument, I think that I am comfortable in following the approach you espoused.   If I use my game as a lens through which I can examine existing characters/worlds/properties, that does seem to be on the correct side of that line in the legal sands.   Rather then building a game  _with_ the content, I would simply build tools which may be used to interact with it.   

The point with regards to trademarks is particularly effective.  I had not considered that using an existing property in a demo situation could potentially imply a relationship between myself and the IP owners.  I will have to shape my demos carefully and might simply resort to the public-domain characters such as Sherlock Holmes. 

Thank you.