Q: I want to make an independent film about a video game character by mixing the original storyline and characters with my own ideas. I didn’t know if I needed to obtain permission or rights to make it even though its going to be non-profit. I just want to be able to put it on YouTube and stuff. Thanks!

A: Your gracious author is wondering if you somehow stumbled upon his Xbox Live Gamertag and discovered that when he’s not faithfully answering legal questions or playing the role of human punching bag for his two young children, he’s sneaking off to his man hovel (i.e., his living room after everyone’s gone to bed) to play Halo 3 online with his similarly maturity-stunted friends. This mild addiction to a videogame has lead to an introduction to the world of guerilla videogame cinema known as “Machinima.”

For those even more uninitiated than myself, Machinima filmmaking essentially takes scenes and action directly from the game play of videogames and turns them into short films, sometimes funny, sometimes serious, through the use of editing software and dubbing. I’m assuming that this is basically what you (the questioner) are interested in creating. Even if you’re creating something from scratch using your own art, if it’s based on the story and characters of an existing videogame, the issues are essentially going to be the same as those raised by Machinima.

Now any nerd like yours truly knows that there is a ton of Machinima on the internet, and YouTube in particular… there’s even an entire YouTube channel devoted to it. If it’s on YouTube, it’s got be on the up and up, right?

“Yeah, right” is more like it. Just because it’s proliferated doesn’t necessarily mean it’s okay, especially from a legal perspective.

The problem with what you’ve described, which is a problem shared by the creators of most Machinima, is that you’re starting with a pre-existing copyrightable work, in this case a videogame (along with its copyrightable characters, storyline, art, etc.), and creating a “derivative work” based on that pre-existing work. The right to create derivative works based on copyrightable material is a right exclusively held by the copyright owner of such material. If this wasn’t an exclusive right, I’d be working on my sidesplitting, rollercoaster ride of a sequel toOrdinary People instead of writing this blog.

Taking someone else’s material and using it as a basis for your own new work is about as straightforward a case of copyright infringement as videotaping a movie and then selling it on the streets of Manhattan. That being said, I wouldn’t be a lawyer if I didn’t follow up a fairly definitive statement with an equivocation that makes you not entirely sure where you stand.

The clarity-destroying follow up in this instance is that while what you’re proposing would likely be seen as an infringement of the videogame copyright owner’s rights, you may have a “fair use” defense. Unfortunately, the law around fair use is about as easy to explain as the finale of Lost so we can’t really get into a full blown analysis here. The fact that you’re doing it for “non-profit” purposes helps you if you’re claiming such a defense, but it isn’t determinative (e.g., I can’t take someone’s copyrighted work of art, copy it, and distribute posters of it on the streets even if I don’t make a dime). What you’re describing is the creation of a new artistic work completely based on an existing work that doesn’t “transform” the original work nor comment on it. Your film sounds like it’s meant to expand on that original work’s storyline or universe, not parody or critique it. For these reasons, even if you’re distributing your film for free, the chances of you having a valid fair use defense, at least from what I’ve heard, seem relatively low.

So this brings us back to the proliferation of Machinima and things like fan fiction. Why do we see so much of it if it constitutes copyright infringement? It’s hard to imagine that every stoned videogame fan with some editing software is getting rights to create his short films. This is where reality differs from legality. Often times, copyright owners won’t exercise their rights against creators of unauthorized derivative works because those works either help promote their product or engender a community-like feel among their fan base. This is especially true in the videogame arena where the viral spread of a YouTube clip of a popular Machinima video may lead to more sales of the subject videogame. There are even cases of videogame publishers issuing sweeping non-exclusive licenses to their fans to give them the right to create Machinima. Some, like Bungie Studios (which is affiliated with Microsoft), creator of my beloved Halo, actually promote Machinima (they have no bones about hyping Red vs. Blue, a successful example of Machinima based on Halo).

I have no idea if the copyright owner of the videogame on which you want to base your new film will be cool with you doing so. Legally, you are taking a big risk if you do so without any license from the copyright owner; it would likely have a valid claim against you. You never know, though… it may be the type of company that encourages such things. If so, why not look into getting a license just to be safe?

I’d write more but I’ve got to run. I’ve got several man-children waiting for me in an Xbox Live lobby.

This blog was originally published as part of Legal Ease, Film Independent’s weekly column on legal matters pertaining to the entertainment industry. To see other LEGAL EASE columns please click here.

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