Law of the Game on Joystiq: Used to be Fair
Filed under: Features
Each week Mark Methenitis contributes Law of the Game on Joystiq, a column on legal issues as they relate to video games:
Based on the comments to the last few copyright-oriented columns, it seems like everyone wants to talk about fair use. In fact, fair use is one of the most misunderstood aspects of intellectual property law, even though it’s popular to play the “fair use” card in response to alleged infringement. Much of the confusion stems from the fact that there are different fair uses of copyrights and trademarks; still, other confusion stems from the fact that many of the tests for what qualifies as fair use are not terribly clear — but I’ll be clearing much of this up for you today … hopefully.
For the most part, trademark fair use is far simpler to understand than copyright fair use, so trademarks will be our first stop. Simply put, it is fair to use a trademark nominatively or for identification. That means if you re-sell a BMW, you are allowed to refer to it as a BMW. If you’re writing a book or game dialog, you are allowed to refer to brand names. You are also allowed to refer to brand names in comparative advertising too; for example: “Our console has more games than the PlayStation 3!” or “Our hardware is more powerful than the Nintendo Wii!” or “Our system is more fun than the Xbox360!” Now that I’ve angered all the fanboys, that’s pretty much the entire universe of trademark fair use. Copyright fair use, on the other hand, is far more complicated.
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