Using clip art from the internet

OK, before I say anything else I'll say that I'm not a lawyer. But this is how I see it. Until you try to make money from the game, you can do whatever you want with it. I use clip art and images in the same way, on multiple prototypes for a couple different games (5 I think right now) I use it to generate interest from playtesters and to help me keep in the theme of the game as I get into it. Now, I could be way off on this, but until I try to make money from the game, I don;t see the reason to not use hwatever is available as artistry is not one of my strongpoints.... your mileage may vary though. Any other thoughts on this?

If linking to the cards, there's no reason not to include them all (if for example, you already have it set up that way). It's not a requirement, and like Jeff says, a few representative cards will give us the idea, but if you HAVE all the cards in a file, there's no good reason not to link to it.

Regarding clip art, you can use it however you want, you just can't try and sell it to people. So on this forum and in playtesting you will not have any trouble with clip art.

- Seth

The key words are you MAY be sued for up to $250,000 and serve jail time for creating derivative works of other people's copyrighted materials if you distribute them on the internet or by hand.

Now, you probably will never be sued, probably will never go to jail, and will probably never even receive a cease and desist notice. But you asked whether it was OK. So I offered up my perspective.

However, Google says "May be copyrighted" about TONS of their images. That's a generic warning.

As a general note, unless it was generated by the federal government without the use of subcontractors, or unless it is an image from the early part of the 20th century or before, or unless people have specifically placed the image in the public domain, then under U.S. law an image is copyrighted the second it is put into fixed form.

So, likely if it is an image developed in the last 70+ years then there's about a 99% chance that it is copyrighted by someone.

Distribute has the plain English meaning. To transfer copies of the work to other people. If you found it on the internet it's just about 100% likely to be fair use for you to print it out and use it in your house, for no profit, for your own purposes. I haven't heard of a court case yet where printing out stuff for your own personal use that you found on the internet was not considered to be fair use.

Arguably you are creating a derivative work by including images in a board game of your own creation instead of just printing out the stuff, but if you are making no profit off the venture then you are probably engaged in fair use. That's a bit of a gray area.

Start spreading copies around and you are engaging in distribution activities that only the owner of the copyright is entitled to do under Title 17 of the U.S. Code.

You are in a gray area, but you are likely OK if you make no other copies of the materials to distribute to others. If you are showing it off to try to get others to buy your design then you have probably stepped outside of the "fair use" area for using the graphics you found on the internet. If you have one copy of the art for personal use and you are not trying to market your game then even if you are outside of fair use, you probably won't be bothered by anyone.

If you engaged in a full fledged playtest involving lots of other people with copies of your game then you are in violation of copyright law.

If you do that and have no intention of making profit then you may go unnnoticed or you may get tagged with a "cease and desist" letter.

If you do that and are intending to make profit and you get noticed you could be tagged with a very unfortunate lawsuit.

I may have misunderstood what you meant by "playtest". I playtest games sometimes with just a few of my friends, but often I find people outside of my own state or country to help playtest, and then you have to distribute copies of your game and its graphics.

It seems like others were suggesting that you put the game on the net and link to the images. Don't do that if you want to strictly abide by Title 17 unless you are licensed to distribute the images. If, however, you are only worried about conduct that is substantially likely to get you sued or thrown in jail, then your comfort zone may lie elsewhere.

BTW -- what kind of images are you looking for that you can't find on clipart.com? Something specific?

I took a prototype of one of my games (my 1st) to a convention in CA back in '99. It was a card based combat game using the "WORMS" games from PC and playstation. I had some art right from the web and some screen shots. At one point my friend and I had 15 people playing/watching the game. I was given no problems. I really, really wouldn't worry about taking your game to Protospeil w/ the art (just my opinion though) Even if someone who did own the art was there and saw it AND got upset, the possibilities of being sued are small (again, just my opinion) it's not like your putting it on the net for free and letting anyone take the game out and about... I guess I just don't wory as much, but then again you can't get blood from a stone, so go ahead and sue me.... anyhow, by the time any of my games head to a publisher for consideration I'll have all royalty free or art I have the rights too anyways. Don't worry so much.... ^_^

Agreed, particularly if he has only one copy of the game, isn't distributing it, and isn't trying to get someone to purchase his game for a profit.

It sounded like he might be considering doing that (people were asking for links to images). And that is a decidedly bad idea, particularly if he is considering making a profit on the game.

Um, in certain circumstances there is federal prison time. Unlikely as hell from one copy of the game, but much more possible with online distribution if you are trying to make a profit.

I just gave him an overview of the law as I, a layman, see the law. I then gave him my best guess as to the likelihood of legal risk, which was low to non-existent in certain circumstances and higher in others.

Below is the end user license for the microsoft clip art gallery. Anyone want to take a guess as to whether or not Microsoft allows these images to be used in end works that can be sold? From my quick layman's glance, it appears they can be.

-Darke

P.S. Sorry for the lengthy post, but this appears to be on topic.

P.P.S. Anyone can access Microsoft's Clip Art gallery by going to http://office.microsoft.com/clipart . It's an excellent source of clip art and all of the images can be copied and pasted into your favorite vector based drawing application such as Corel Draw, Macromedia Freehand or Adobe Illustrator.

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And Darkhorse answers a question while it's being typed... HEY! Stay out of my head pal!!! ^_^ Thanks for the info though....

1.2 License Grant for Media Elements. The Software may include certain photographs, clip art, shapes, animations, sounds, music and video clips that are identified in the Software for your use (together "Media Elements"). You may copy and modify the Media Elements, and LICENSE, DISPLAY, AND DISTRIBUTE them, along with your modifications as part of your software products and services, including your web sites, but you are not licensed to do any of the following:

I've highlighted the appropriate parts for people who are licensed to use this software.

There are restrictions in the license on the distribution of these items.

Fair enough. But what are the restrictions? I know you're not a lawyer, but what is your personal take on the the language in this agreement?

It seems to me like I'm free to create and sell products that use the images in the clip art gallery. The only thing you can't really do is sell the images themselves or as part of a collection of images, you can't license the images, you can use the images if the images themselves are copyrighted (trademarks, company logos, etc) and you can't use them to create obscene works.

It appears to me, in the context of creating games, you can use them as artwork for your games AND sell those games with that artwork. Do you have a differing opinion?

-Darke

There are lots. They are scattered throughout the license. However, most of the key ones are all in one section:

In addition, you must (a) indemnify and defend Microsoft from and against any claims or lawsuits, including attorneys' fees that arise from or result from the licensing, use or distribution of Media Elements as modified by you, and (b) include a valid copyright notice on your products and services that include the Media Elements.

No, I'm the lobbyist and public policy director at a civil rights organization. I also do litigative consulting (I consult on legal cases).

If you are a licensed user of the images. Did you buy their software?

You wrote:

Licensed users can.

The license has one poorly worded sentence, unfortunately the most important one in the license:

"You may distribute them as part of your software products and services"

The term "services" is not defined, nor is "software products". One could read this license as being limited to software-related distribution. Would that be non-print products? Or are "software products and services" those products and services created with the software? Poor wording.

However, I don't think that the intent of the contract is to limit usage only to electronic media, and as a contract of adhesion, vague areas in it are construed against the drafter so that I think even for non-software related distribution this license is applicable, if you are a licensed user.

Hope that helps.

I certainly agree that licenses vary and that care should be taken. It's also true about electronic distribution, though I don't think that's what we're talking about here, fortunately.

Fonts that refer to themselves as freeware but have that restriction really frustrate me. That makes them shareware, not freeware: if I have to pay to use it, then I have to pay. I've noticed, as clearly have you, that many, many "freeware" fonts have that restriction. Definitely good to note.

-- Matthew

No, I'm the lobbyist and public policy director at a civil rights organization. I also do litigative consulting (I consult on legal cases).

Trust me no disrespect was meant by my comment. It is common practice, and kind of a running joke, to preface any statement about legal issues with "I'm not a lawyer".

Thanks for the info. I am a licensed user of microsoft word, so I should be good to use their clipart. It's amazing how much stuff really is available on their site.

-Darke

I wonder if it's any more or less than the standard stuff I got by installing Office XP? Because that EULA said you had to be a user of the 2003 version of Office to use it. I just have the XP edition, which I think is Office 2002.

Thanks.

I'm not sure I understand your question here. The online clip art gallery is the same from office 2000 (when they first starting offering the service) up to the current version of Office 2003. Basically that means when you hit the button for clips online, no matter what version you have it takes you to the same content. As for the having to be a user of Office 2003, if you read down a little further you get the complete picture:

As far as I know, all Microsoft Office suites from 2000 on up include Microsoft Clip Gallery or Clip Organizer. So basically if you have even a basic version of Microsoft Word 2000 then that includes Clip Gallery which then allows you to access the clip art.

-Darke