Sunday, December 28, 2008

THE TORONTO TROUBLE. Complaining about copyright issues

I've been very bad lately, not updating the blog at all. That doesn't mean I wasn't doing anything games-related. I've been playing, researching and enjoying them (especially the weird ones, as usually), and also started writing a piece of IF. There was a lot of interesting stuff to say, and I will now try to sum it up in a series of blog posts, which will, hopefully, mark my renewed commitment to Different Gaming.
Looking back, the thing that comes to my mind and is entirely blog-related, is my trip to the FuturePlay conference in Toronto in early November. The paper I presented there is actually a reworking of What You Can't See Is What You Don't Get, and even has the same title! The full paper will be soon available through ACM (who are behind the conference), let's just say the ideas are the same as in the blog post, but they are expressed in a much subtler, more academic way, and the smarted-up version even includes a T.S.Eliot quote!

What I'm finding blogworthy, though, are the copyright issues I've had with it. In the paper, I'm talking about The Secret of Monkey Island, and obviously, it makes sense to actually include screenshots of the game.
Now, when you publish stuff yourself on a blog or you write for a magazine, they usually don't care. But respectable publishers such as ACM prefer to stay on the safe side, or to "err on the side of caution", so they won't publish anything without a permission. However, whoever has dealt with Lucas Arts from the position of a puny human knows that it is impossible to get in touch with them and get the permission to reprint the screenshots (and yes, they also love to sue people). I attempted to claim fair use, following the guidelines that you can see for example on Wikipedia. However, using your screenshot for obviously non-commercial, academic purposes, with citation, and actually praising the game for what it does well, is not enough to make the lawyers happy.
There are a few discussions of the matter on-line, but they quite inconclusive in whether a screenshot constitutes a derivative work. Alarmingly enough, some argue that publishing a photograph of a building may infringe the architect's copyright. I would like to read experts' view on the matter, but it's actually not that easy to find.
Interestingly enough, by publishing a screenshot in an analog form (such as a conference proceedings or a journal), you fundamentally change the way it's coded, so that it's not possible to re-use as it was before. The original digital form cannot be arrived at from such a copy. So it's more like paraphrasing than actually citing. However, it's usually the print publications that will never allow you to reprint screenshots without permissions.
The outcome of this situation is quite simple: academic papers just do not tend to have screenshots in them, because it's too much of a hassle to get the necessary permissions. A similar situation is present in film scholarship, although I'm not sure how hard it is for them to reach the copyright owners. Literary scholars, however, have their backs covered. Citing a literary work is perfectly OK. You don't need any permission, just state which book you're citing from (of course you cannot reprint the whole book, but did I want to include every single sprite from Monkey Island, so that people can reconstruct the game on their home computers?).
In the end, I gave up and simply removed the screenshots, although it weakens my arguments. Am I the only one who thinks that the current legal measures and the virtual inaccessibility of the game companies' legal departments cripple games scholarship?


  1. I'm also trying to use screenshots from Monkey Island for a book, and it's going sloooow. So far they've been quite nice, even if they take ages to respond; I just hope they get back to me before the book goes to press.
    The problem is that in the case of conferences and journals, the game publishers are simply too slow to grant permission to use their images. The other issue is that publisher's websites usually do not list who to contact for copyright issues, so companies are not really helping in that regard either.

  2. I usually publish assuming fair use, making sure the developer is credited under every screenshot.

    There actually is a US court decision that screenshots are fair use, so I wouldn't worry.

  3. I am working my dissertation on Machinima and running into this same issue with the university editors - screenshots have to have premission documents. I have tried to get in touch with the game company but have never had a reply.
    What's the point of Fair use if the Universities won't even use it. I am probably going to have to drop them.