footage of video game

[Nicholi Brossia]

I'm sure the answer is going to be "no, that's copyright infringement" but I'll ask anyway. I plan on making a short film soon that will contain a scene with a kid playing a basketball video game. Due to the significance of the scene, I'd like to have a shot of the television while the game is playing, but only a couple seconds worth. If there are no company or product logos on the screen at the time, can I use this footage? If not, does anyone have another idea that might work but not look cheesy?

[Mike Rehmus]

Ask the publisher of the gain.

[Peter Jefferson]

more than likely, if u ask for written permission they will grant it.

the fact that their product is getting "free" airplay will make them happy.

They might even provide u with a dvd of the games footage which u can display whiel your actor pretends to play

[Peter Moore]

"more than likely, if u ask for written permission they will grant it."

I'm afraid in my experience this is not the case. Often publishers default to 'no' unless given a persuasive reason to say yes, and that reason 99 times out of 100 is money. It's because they don't want the hassle of granting and enforcing licenses. And the video game screen does contain copyrightable elements, so I believe it would be protected.

[John Britt]

If you're talking one of the new-school "NBA All-Stars" type video games, I can only imagine the headache involved -- you've got the game developer's copyright, then any of the athletes featured in the game (who probably have clauses in their contracts regarding such use), plus the teams themselves (w/ trademarked logos, mascots, etc).

Unless your character is playing an old Atari 2600-style sports game, there's probably *way* too many palms to grease on this one...

[Peter Moore]

That is also a very good point.

For all these games there's numerous different parties that own different rights. It's a huge headache to get all them together to grant rights for something like this, and if money's not at play, what reason is there for them to bother? Exposure? Well, that's one thing if you're a huge company, but a small amount of exposure is not going to persuade them.

[Nicholi Brossia]

Thank you guys for your help. I have a couple more questions if you don't mind.

I figured this would end up being a no-go. The other day, I went to a high school basketball game to record the sounds of both the game and the crowd. Maybe I'll record a fake play-by-play announcer voice if its not too cheesy. Most likely that, combined with a shot of somene playing around with a gamepad, will get the point accross... not as well as I'd hoped, but it will due. Will using something like the calvary trumpet or some other generic basketball game sound be usable?

I've considered making a mock flash screen like the ones that show up while the game is loading. That would definately avoid the copyrights while making it clear that he's playing a basketball game. My only concern then is with the videogame console and control pad. The plan was to have various shots of the kid putting in the cd, then playing. If I hide all company logos/trademarks, will footage of the console and gamepad be usable?

[Paul Tauger]

With respect to the game, itself:

1. It's copyright infringement.

2. As it happens I represent a computer game developer. If my client is typical, you probably would be able to get permission with respect to copyright-protected material (depending, of course, on the nature of your project), but . . .

3. Most computer games involve multiple licenses. In the case of a basketball computer game, in addition to the copyright-protected material, there will be trademark license from the teams as well as from the NBA, and right-of-publicity issues for the players who are represented. The game distributor will not be able to provide permission with respect to the licensed material, and it is extremely unlikely that you'll be able to get all the individual permissions that you would need.

As for the console, it's a more difficult question. Most computer game consoles are subject to product configuration trademarks. There are two specific concerns if you use another's trademark in your project. The first is simple infringement. Trademark infringement results when there is a likelihood that consumers will believe that the trademark owner is the source of, affiliated with, sponsored or endorsed your project. Without actually seeing what you're doing and knowing how it will be used, there's no way I can answer that. The next concern is trademark dilution. Dilution occurs when a specific use of a famous mark (this is a legal term of art) results in either diluting the source-identifying quality of the mark, or results in tarnishment of the mark. This is a much more difficult determination and, again, without knowing what you're doing, there's absolutely no way that I could say.

[Peter Moore]

"2. As it happens I represent a computer game developer. If my client is typical, you probably would be able to get permission with respect to copyright-protected material (depending, of course, on the nature of your project), but "

Really? I'm surprised but interested to know for my own sake. How and whom would you go about contacting to get permission for something lile that? I would bet letters to the HQ of the developer get thrown in the fan mail pile too easily.

[Dustin Waits]

<<<-- Originally posted by Nicholi Brossia : If I hide all company logos/trademarks, will footage of the console and gamepad be usable? -->>>

I have seen something like this done on the disney channel. I believe the name of the show is "Even Stephens". Don't know much about it but my brother watches it. Anyways, the boy on the show was carrying around a pd150 do videotape his friends and such. All the stickers were removed from the camera and the sony name was covered up.

[Paul Tauger]

"2. As it happens I represent a computer game developer. If my client is typical, you probably would be able to get permission with respect to copyright-protected material (depending, of course, on the nature of your project), but "

Really? I'm surprised but interested to know for my own sake. How and whom would you go about contacting to get permission for something lile that? I would bet letters to the HQ of the developer get thrown in the fan mail pile too easily.

My client is fairly large, as games developers go -- almost 200 employees (and growing). However, I've gotten inquiries from them on a fairly regular basis about use of their name, images, etc. for other purposes. I don't know how people contacted them in the first place -- I suspect they just wrote -- but the letters got read and, in many cases, they granted permission after I reviewed the request and made sure their rights weren't compromised.

Generally, when I want to bypass the usual consumer relations hacks, I'll get the name of the COO (a call to the HQ will get that) and write him/her directly.

[Nicholi Brossia]

Paul, your client wouldn't happen to make a basketball game with no team logos, no affiliation with the NBA, no images of professional athletes, royalty free music, and its own stand-alone console would they? ;)
It looks like going about this legally will end up being more hassle than its worth. The completed project will be very very small (1-2 minutes) and just isn't worth all the headaches and paperwork even if I was ultimately granted permission. I was hoping to avoid the cheesy effect of making my own graphics/mock videogame, but its safest, so I'll stick to that. Maybe I'll make my own fake console too.
A lot of folks would just do it anyway and not worry about any repercussions because the chances of being punished are slim-to-none. Unfortunately, I'm serious about my work and like to keep everything legit in order to assume a more "professional" status. I'm sure that will pay off somewhere down the line.

Thanks to everyone for your help.

[Paul Tauger]

Sorry, no, they do fantasy and science fiction role playing games.

[John Britt]

For a game controller, you might want to try one of the cheap USB computer gamepads they sell at places like Best Buy. There's a few different brands of these "generic" gamepads (usually around $9 -$10) and they all look vaguely similar -- you could get one and paint it black or something... I guess this would techically fall under "taking your chances" since even these "generic" designs are probably trademarked, but it's better than building your own.

And even if you can only animate a spinning basketball (which should be easy to do, even with little animation skill) to put on the screen, this will convey enough information to the audience that the kid is playing a video game -- even without showing the controller or the console unit. Just a shot of the kid from behind with his elbows sticking out, pantomiming using a gamepad, with maybe a length of cord laying on the floor leading from the kid's hands to the TV, should be enough for modern audiences to immediately think, "That kid's playing a video game."

[Nicholi Brossia]

I planned on using something graphically to give the idea that it is in fact a basketball game... whether a spinning ball or some kind of game/company logo or something. With a little time and effort, it should turn out okay.

Using a painted, generic gamepad is a great idea. Thanks John. That will be much easier, more convincing, and probably even cheaper than making my own. Plus that should make it clear that my movie isn't affiliated with any particular game company.