Category Archives: Games and Society

Using Fictional Characters Without Permission Is A Real Problem

There always is a lot of confusion among the general public about the nature of copyright infringement and whether it is legal to create your own works, whether it be commercial products or fan fiction, based on other people’s works. One person recently asked me what the penalties were for plagiarising fictional characters. Although I’ve written about the topic of intellectual property rights before, I thought I would share my answer with my other readers.

Copyright infringement is the use of works protected by copyright law without permission, infringing certain exclusive rights granted to the copyright holder, such as the right to reproduce, distribute, display or perform the protected work, or to make derivative works.

Literary, artistic, and musical works — including books, comic books, video games, films, television shows, cartoons, and songs – are eligible for copyright protection. So is any written work (such as a character description) that is sufficiently original and substantial.

If you were to write your own story or make a video game about Superman character, for example, it would be considered to be a derivative work of DC Comic’s Superman comic books. If you publicly distributed such a derivative work without DC Comic’s permission, it would be copyright infringement.

In the United States, the penalties for copyright infringement are:

  • Infringer pays the actual dollar amount of damages and profits.
  • Infringer pays statutory damages ranging from $200 (accidental infringement) to $150,000 (intentional infringement) for each work infringed.
  • Infringer pays for all attorneys fees and court costs.
  • The Court can issue an injunction to stop the infringing acts.

Names alone are not substantial enough to be considered literary works and therefore are not eligible for copyright protection. You are free to name your baby “Superman” if you wish.  Similarly, Joe Croce is allowed to have the lyrics “you don’t tug on superman’s cape” in his song You Don’t Mess Around With Jim, as it is only a reference to the Superman character.

However, the words comprising names can be registered as trademarks used to represent a company or product. For example, one of the many trademarks DC Comic has registered for the word “Superman” is for confectionary products (USPTO trademark serial number 7578832).

Trademark infringement involves using someone else’s trademark without permission on competing or related goods and services in such a way that it causes a likelihood of confusion in the average consumer. If you were to use the word “Superman” without permission on the packaging of candy that you were selling, you would be infringing on DC Comic’s trademark 7578832.

A trademark violator who is sued by the owner of a lawfully registered trademark in the United States may be ordered to pay monetary damages based on lost profits calculated from the sales the trademark violator made while using the trademark illegally. If the court finds that the trademark violation was intentional, such as a case in which the violator is selling goods that he is trying to pass off as coming from a known popular brand, the court may impose penalties of three times the amount of actual lost profits.

Ideas are not protected by intellectual property laws. For example, the idea of a cape-wearing, flying, invincible superhero who comes from an alien planet is not protected, and so you are perfectly free to create your own cape-wearing, flying, invincible superhero who comes from an alien planet. However, if you add on enough details that are similar to the Superman character (similar outfit, his planet is named Krypton, works as a reporter for The Daily Planet newspaper, etc) that the average person would confuse your character with DC Comic’s Superman character, you would be committing copyright infringement.

Plagiarism is taking someone else’s work or ideas and passing them off as one’s own. Plagiarism is not a crime; however, when committing plagiarism, many people also commit copyright infringement, which is a crime.

Also, crediting someone’s work that you use without their permission does protect you from committing plagiarism, but it does not protect you from committing copyright infringement. If you were to post your own story about or drawing of Superman on the internet with the disclaimer “Superman is a character owned by DC Comics. No copyright infringement is intended”, DC Comics could still successfully sue you for copyright infringement.

Now, you’ve probably noted that I did use an image from a Superman comic book to illustrate this article.  However, there are certain limited Fair Use exceptions to using copyrighted works without permission, such as criticism, news, an parody — so long as you only use enough of the work as is necessary for your purpose and your use does not deprive the copyright holder of any potential revenue or market for that work (you can also use characters for which the copyright period has lapsed or are otherwise in the public domain).  I think that my use is Fair Use for my purpose of educating my readers about intellectual property laws.  Besides, I don’t think DC Comics would object on me telling people not to “tug on Superman’s cape” with out their permission.


The Politics Of Video Game Violence

Last May, a user of the social media discussion website Reddit posted a 2005 video of then-senator Hillary Clinton arguing for age regulations with violent video games. In the video, Mrs. Clinton argues that children playing violent and sexually explicit video games display “increased aggression.” The post sat at the top of the subreddit /r/Gaming, which boasts some 10 million subscribers, many of them mocking  the idea that playing violent games turns users into violent people by imagining other activities similar to playing violent games and becoming violent.

Clinton’s opponent in the 2016 Presidential Campaign, Donald Trump, said almost the same thing about video games as she did, but a decade later.

It is easy to see why video game players defend a favorite pastime, but why do so many others target video games when there has long been violent content in our other forms of entertainment — movies, television, sports, and even fairy tales?

The basic claim is that video games are more likely to affect people’s behavior than more passive forms of entertainment for three reasons:

  • žGames are immersive: when we play video games, we are not just watching violent acts, we commit them.
  • žGames are repetitive: while the violence within a movie or television show may last only a few minutes, the violence in video games is content.
  • žGames reward violent behavior: a violent criminal in a show will probably eventually get his comeuppance, but in video games give players points and achievements for committing violent acts.

Thus, opponents of violent video games say that such games train players to become violent.

It cannot be denied that players can become very aggressive while playing violent video games. According to a 2001 study reported in the journal Psychological Science, children who play violent video games experience an increase in both the physiological signs of aggression and aggressive behavior. These are findings that Mrs. Clinton alluded to in the video, leading her to state that “We need to treat violent video games the way we treat tobacco, alcohol, and pornography” while promoting the Family Entertainment Protection Act, legislation that would have criminalized the sale of games rated “Mature” or “Adults Only” to minors.

However, a relationship between virtual aggression and real-life aggression isn’t necessarily cause and effect. For example, it may be bullies in real life also enjoy being bullies in virtual life, so they play violent video games. But it was not the video games that caused the bullies to become violent in the first place. The American Psychological Association concluded in 2015 that while violent games increase aggression, there is a lack evidence to say it extended to criminality or delinquency. The results of other studies trying to decide if there is a causal link between violent video games and violent behavior is inconclusive.

So, if the relationship is uncertain, why are politicians so quick to blame video games, especially after a violent incident perpetrated by children such as with the Columbine High School shooting, after which the media revealed that the two killers played a lot of violent video games?

When a tragedy such as this occurs, the public looks to its leaders to take action and prevent such a thing from occurring again.  After the Sandy Hook Elementary School shooting in 2012, the media reported that the shooter, 20-year-old Adam Lanza, played violent video games, President Obama directed the Center for Disease Control to study the best ways to reduce gun violence and asked Congress to fund research into the effects that violent video games have on young minds.

Unfortunately, complex problems like gun violence rather have simple solutions.  And rarely do we agree on what the proper solution is.  Democrats often say that the solution to gun violence is to put restrictions on gun purchases, while Republicans will say that “guns don’t kill people, people kill people” and arguing that a breakdown of the family and religious values is a cause of criminal behavior.

Yet violent video games seems to be a subject that both Democrats and Republicans can get behind. Beginning in 1992, the U.S Senate held hearings on video game violence and the corruption of society due to the popularity of violent video games like Mortal Kombat, causing the game industry to create the Entertainment Software Ratings Board to rate game content.

The establishment of the ESRB was a good thing for the game industry, but politicians have less noble reasons for advocating restrictions on violent video games. It gives them a cause (violence in our society) to talk about when campaigning, as well as an easy solution (banning violent video games). This makes the candidate look heroic and caring to many of their supporters and constituents.

Fortunately for game players, they do have an advocate on their side. In 2001, the United States Supreme Court struck down a California law that would have imposed a penalty to retailers for selling M-rated games.  There decision that effectively gave video games the same free speech rights as books, movies or television shows. It established that video games were a protected art form.

Of course, the battle is far from over, because as I wrote above, there are no easy answers to complex issues. But that hasn’t stopped politicians from trying to find easy answers, particularly in this election.