Using Midi Music From a Video Game Cartridge

Dear Rich: I want to know if it is considered sampling when you record sound coming from a synthesizer that is playing electronic note data stored on a memory chip. Technically when you play an NES game (80s video game system), the music that is playing is not pre-recorded. It is actually played "live" from musical note data on the game cartridge (gameplay triggers a MIDI pattern) in the console into the internal synthesizer. When I record synthesized sounds for the purpose of using them in new music, would it count as a sample or a cover? 
When MIDI code triggers a synthesizer, it's similar to a piano roll triggering a player piano. In both cases, music written by a human is programmed to be played by a machine. Whenever a human creates an original fixed work (the code is fixed on the game cartridge), it's protected by copyright. In order to record, remix, or repurpose the NES/MIDI melodies or themes, copyright law requires that you get permission from the composition's owner -- either Nintendo, the game company, or in rare situations, the composer. Unless the music has been released on CD or authorized downloads such as MP3s, you would not use the compulsory mechanical license used for cover songs because that only applies to compositions that have been released on sound recordings (not video games or movies). Sample licensing usually includes two licenses, one for the composition, the other for the recorded performance. You wouldn't need the license for the recorded performance (aka the master recording).
What if you don't get permission? Failing to acquire permission won't matter if the copyright owner never learns of your use (a good possibility unless your track goes viral). And even if the owner does learn of your work, the owner may not want to hassle you for financial or publicity reasons. The owner may be most likely to care if you use your music in a video game or movie.
Permission may not be needed. Authorization is not needed if your sampling is excused as a fair use, determined by the four fair use factors. Your use differs from the original purpose of the music -- to enhance the gameplay experience. So, that's transformative (and in your favor). Another fair use factor is how much material you have used. The less you sample, the less you loop, and the less that the song is built around the loop, the stronger the fair use argument. Still, as we always warn: Fair use can only be used as a defense to copyright infringement. That is, you must already be in court. Also, permission might not be necessary if the MIDI composition is not original (for example based on folk music) or is so simple the pattern is considered an essential building block of music composition (for example, the arpeggio associated with boogie-woogie piano). Again, like fair use, these are defenses raised at trial.

Who Owns Gameplay in Video Game?

Dear Rich: If I screen capture while playing a video game like Call of Duty, who owns that? I know I don't own any rights to the video game itself but can I stop someone else from copying or showing my screen cap of how I played the game? 
In order for you to stop someone, you have to be able to demonstrate you have some proprietary rights in what was captured on screen. We doubt whether your gameplay -- absent any additional content -- amounts to copyrightable authorship. The issue first came up in 1983 when the Seventh Circuit Court of Appeals held (in a dispute over an unauthorized chip board) that just because the Pac Man game had an interactive multiple choice storyline did not move the copyright from the manufacturer to the player. In other words, the user "plays" the game; the user doesn't create content (although there may be an exception in the case of custom-created avatars or similar modifications). By analogy, courts have held that participants in sporting events -- no matter how accomplished, graceful, or skilled -- cannot claim copyright in their play or in specific moves they make. (See National Basketball Association v. Motorola). If this isn't what you wanted to hear, keep in mind that there some who believe games should not be protected by copyright at all!

Can We Use Facebook and Twitter TMs in Video Game?

Dear Rich: I have a client who is making an online/iphone game and in the game, the player will get a fictitious email from Facebook or Twitter with some info. Can they use those logos/trademarks in their game? They are filmmakers and I know they can use it in their film, but what about the game? Can they put a disclaimer that says those companies are not endorsing their game? We can't tell you whether you would get sued (although we think the chances would increase if the game becomes popular) and we can't tell you whether you would win your lawsuit (although we doubt your client wants to pay to find out). What makes the outcome so difficult to predict is that the law regarding trademarks in video games is complicated, and in any case, the use you're describing doesn't match neatly with video game case law (or as lawyers would say, your situation is "not on all fours" with other cases).
Video game standards. When a video game maker uses an unauthorized trademark within a game, a court weighs free speech and trademark rights by asking two questions: (1) Is the trademark artistically relevant to the video game? and (2) Would consumers find the use to be explicitly misleading as to the source of the game? In a recent case, two video game makers battled over the use of "Delta Force." A court applied the test and ruled that free speech permitted the use because the military use of the term "Delta Force" preceded the use by the trademark owner. In another case, the makers of Grand Theft Auto were permitted to use the trade dress and similar trademark of a Los Angeles tavern on first amendment grounds. In a third case involving the Bell helicopter trademark, a court would not permit the use in a video game under free speech rules, claiming that consumers might be misled as to Bell's involvement with the game. This article explains the rules and cases.
What about your use? The primary difference -- and what makes your case hard to call -- is that your client is using the trademark of a company that distributes video games (Facebook) and another company that provides video game feeds. (The other cases mentioned above don't involve the names of game-making companies -- they  involve third party trademarks for a bar, military battalion, and helicopter company.) It is a little bit as if an Xbox game were to include a fictitious character using a Playstation. Would Nintendo object? On the other hand, if we analogize to movies, we don't see any problem using fictitious Twitter or Facebook accounts in a feature film. In summary, (1) we think your lawsuit meter will go up if you create an iPhone game that incorporates prominent app trademarks, and (2) the law is not clear on whether your client's use is misleading. Don't Forget Apple. Also, be aware that Apple and other App store administrators have the right under their upload/license arrangements to remove apps that violate their intellectual policy rules. Apple's rules state your game cannot "violate, misappropriate, or infringe any Apple or third party copyrights, trademarks ..." So a complaint from Facebook may result in the temporary removal of the game.
What about the disclaimer?A disclaimer by itself is unlikely to shield you from a lawsuit (although it may mitigate your damages and demonstrate you were acting in good faith). To be effective, it must be prominent, distinguishable from other explanatory or merchandising copy, and appear near, or in connection with the unauthorized use. For example, in a 1998 case involving the use of Godzilla trademark in connection with a book, a court discounted the publisher's disclaimer as being inappropriate and stated that an appropriate disclaimer would have been: “The publication has not been prepared, approved, or licensed by any entity that created or produced the original Toho Godzilla films,” and the court suggested that the disclaimer would be printed on the front cover and spine of the book in a distinguishing color or typestyle.

Wants to License Video Game Merchandise in India

Dear Rich: Over time India has been growing as a vital part of gaming industry. Kids, teens and adults as well are strongly connected to games now whether it is PS, PSP, Xbox or PC. Gaming has become an integral part of our daily schedule. As a passionate gamer, I always want to show my dedication towards a particular game by buying the special gaming merchandise even if it be a 'bandana.' But for us Indian gamers it is really not possible to buy any gaming merchandise as such. Well I just wanted to know if, is there any license or other way where I could make custom gaming merchandise and sell it to the huge potential target market here? The merchandise which we would produce will be of highest quality as we mean to stay in this gig for a really long time. If not profit sharing, we can obviously think of any other workaround to accomplish this. Any help will be highly appreciated. It's been our experience that unless you represent an existing merchandise company -- that is, a successful maker of t-shirts, hats, or similar "merch," video game companies (the "licensors") usually don't want to hear from you. They're generally not willing to take a chance and put their brand in the hands of a novice. If merchandising is your goal, you can acquire credibility by (1) affiliating with an existing Indian merchandise company, (2) starting your own company and building a track record (we know, we know ... that's easier said than done), or (3) finding fledgling video game start ups in India and entering into agreements before they become big.
How it's done ... Acquiring permission to sell merchandise that incorporates video game trademarks or copyrighted material requires that you locate the owner of rights, negotiate an agreement, and execute the agreement in writing. However, the agreement used in merchandise licensing is usually more complex than a typical permission agreement and contains additional responsibilities and boilerplate -- for example, each party may seek warranties and indemnity.
Payment. You probably won't have much choice how payments are structured as the licensors usually dictate the terms. Typically, the licensor is paid an advance plus a royalty based on a percentage of income from sales. The company selling the merchandise (you, the licensee) must meet certain obligations including payments, quality control, and enforcement of rights. If you fail to do so, the license can be terminated.
For more information. This licensing article explains some of the legal basics, and this article explains some of the business basics. And this is what could happen if you sell merch without authorization.

Making Merchandise from Video Game Characters

Dear Rich: For a while I have been making digital merchandise based off of famous movie and video game characters. At first I wasn't really making any money off of them. I know now that not making a profit doesn't change anything as far as trademark violations, but I thought it did before, so I stopped selling the merchandise a while ago because I had started making real money and didn't want to make money off of other people's creations without their permission. But now, after so many months, I find myself still wanting to make and sell that merchandise, and other people are asking me to as well. Its a bit frustrating, because I see other people creating things based off of trademarked characters, both in my market and in other markets on the internet. Like all of the Star Trek merchandise you see on Etsy. What's the likelihood of a small one-person business like me getting permission to create merchandise like this? If it's possible, how do I do it?  The likelihood of getting permission is very slim. Owners of video game characters usually only deal with established merchandisers (with serious sales voodoo). Also, they often enter into exclusive licenses. That means they can't grant permission to you without violating their license with someone else. It's possible that if you were offering a new product category, you might have a chance. But that's tough to pull off. (PS. Here's the lowdown on trademark licensing.)
How do other people get away with it? It's a matter of odds. The owners of valuable character properties usually put their resources into pursuing the bigger fish, and for the most part, that often bypasses individual sales at Etsy or eBay. So, unless the trademark owner is intending to make an example of a small fry infringer, a cease and desist letter may be sent, and that's sometimes the end of it.
What should you do? We wish it wasn't frustrating to get permission. Like, wouldn't it be great if you could pay "per impression" for reproductions of licensed characters.  Of course, that may blow any standards of quality ... but hey, merchandise happens. Anyway, infringement is always a gamble and we'll leave the risk assessment to you.