Filmmaker, Filmmaker make me a film

Filmmaker, Filmmaker make me a film

Summary: And Lionhead Studios (now owned by Microsoft), as it turns out, means that pretty literally.  My last post triggered a fascinating discussion in the comments about what one may or may not do with machinima films created using The Movies.

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TOPICS: Microsoft
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And Lionhead Studios (now owned by Microsoft), as it turns out, means that pretty literally.  My last post triggered a fascinating discussion in the comments about what one may or may not do with machinima films created using The Movies.  The Movies is a unique combination of authoring tool and game.  Those who buy it and use it can create digitally animated, 3D modeled movies — but according to the applicable license terms the creator's ownership of the end result extends only things that were not supplied with the program: 

[W]ith respect to any game movies you create using the in-Program movie making feature ("Game Movies"), you will retain ownership of your Game Movies, excluding any and all content within your Game Movies that was either supplied with the Program or otherwise made available to you by Activision or its licensors, and such content shall remain the exclusive property of Activision and its licensors subject only to the limited license granted herein.

I would need to defer to someone who has actually used the product to confirm, but I believe all the raw materials — "actors," sets, etc. — are supplied with the program.  This sets up a cumbersome "joint ownership" situation, to say the least.  As Ruth Logie pointed out, it's a little like Microsoft retaining ownership of the raw materials of your novel — letters, punctuation, etc. — because you wrote it in Microsoft Word. 

The Movies capitalized on the fact that so many were enjoying making their own creations out of their favorite games.  As Wired News put it when the product was first released,

Several bustling online communities and tens of thousands machinima later, it's obvious that the world was waiting for a quick-and-dirty way to create computer-animation flicks. Until now, most machinima have been made by geeks who know enough about coding to re-purpose video-game engines like the open source Quake III engine to make their movies. Or they had to know their favorite MMORPG or first-person shooter well enough, and be patient enough, to manipulate, pose and film their in-game characters performing scenes.

Both styles of machinima-making have built-in limitations: Either you have to code, or you have to be willing to film your bodice-ripping romance using gnomes and orcs.

Enter The Movies' creator Peter Molyneux, who told Wired News for that same story, "We wanted you to be able to make your own unique movie in no way controlled or defined by us. I think that's what we've achieved."  The Movies' license terms (and the terms of use for the site Lionhead provides for users to post their creations) fail to bear that statement out.  If Lionhead/Microsoft are serious about empowering users, they need to either revisit how user rights are defined, or implement a process whereby filmmakers can obtain use permissions in a streamlined way.  Short of that, filmmakers using The Movies find themselves saddled with the sort of silent partner only Danny DeVito could love.

Topic: Microsoft

Denise Howell

About Denise Howell

Denise Howell is an appellate, intellectual property and technology lawyer who enjoys broad industry recognition for her expertise on the intersection of emerging technologies and law.

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  • Read the second page of the wired article

    The creator is quoted in the Wired article as wanting at least some control.

    [i]Molyneux won't allow any machinima to appear on The Movies Online that might be perceived as obscene. "If somebody tries to remake Star Wars and has Han Solo doing something disgusting, that's a problem," he said. Modder Ashton echoed Molyneaux's sentiments, adding that anti-video-game attorney Jack Thompson's lawsuits have him spooked. "Our mods won't let you do anything explicit, like create naked characters," he said. "It's all very proper."[/i]

    I personally believe the license is not a fluke but rather the creators purposely wanted to control what gets distributed with their game.

    What is obscene varies between various local communities. There isn't any one set codified rule on this. And even when there are semi-codified rules on this, take the [url=http://en.wikipedia.org/wiki/Comic_book_code]Comics Code Authority (CCA)[/url] the rules are out of whack with most of society.

    This was also noted when the [url=http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&navby=case&vol=000&invol=00-795]Child Pornography Prevention Act of 1996 (CPPA)[/url], an act that was written to ban depictions of those appearing under 18 even if they are over 18 including computer generated depictions, by classifying them as child porn got overturned.

    [i] The CPPA prohibits speech despite its serious literary, artistic, political, or scientific value. The statute proscribes the visual depiction of an idea--that of teenagers engaging in sexual activity--that is a fact of modern society and has been a theme in art and literature throughout the ages. Under the CPPA, images are prohibited so long as the persons appear to be under 18 years of age. 18 U. S. C. ?2256(1). This is higher than the legal age for marriage in many States, as well as the age at which persons may consent to sexual relations. See ?2243(a) (age of consent in the federal maritime and territorial jurisdiction is 16); U. S. National Survey of State Laws 384-388 (R. Leiter ed., 3d ed. 1999) (48 States permit 16-year-olds to marry with parental consent); W. Eskridge & N. Hunter, Sexuality, Gender, and the Law 1021-1022 (1997) (in 39 States and the District of Columbia, the age of consent is 16 or younger). It is, of course, undeniable that some youths engage in sexual activity before the legal age, either on their own inclination or because they are victims of sexual abuse.

    Both themes--teenage sexual activity and the sexual abuse of children--have inspired countless literary works. William Shakespeare created the most famous pair of teenage lovers, one of whom is just 13 years of age. See Romeo and Juliet, act I, sc. 2, l. 9 ("She hath not seen the change of fourteen years"). In the drama, Shakespeare portrays the relationship as something splendid and innocent, but not juvenile. The work has inspired no less than 40 motion pictures, some of which suggest that the teenagers consummated their relationship. E.g., Romeo and Juliet (B. Luhrmann director, 1996). Shakespeare may not have written sexually explicit scenes for the Elizabethean audience, but were modern directors to adopt a less conventional approach, that fact alone would not compel the conclusion that the work was obscene.

    Contemporary movies pursue similar themes. Last year's Academy Awards featured the movie, Traffic, which was nominated for Best Picture. See Predictable and Less So, the Academy Award Contenders, N. Y. Times, Feb. 14, 2001, p. E11. The film portrays a teenager, identified as a 16-year-old, who becomes addicted to drugs. The viewer sees the degradation of her addiction, which in the end leads her to a filthy room to trade sex for drugs. The year before, American Beauty won the Academy Award for Best Picture. See "American Beauty" Tops the Oscars, N. Y. Times, Mar. 27, 2000, p. E1. In the course of the movie, a teenage girl engages in sexual relations with her teenage boyfriend, and another yields herself to the gratification of a middle-aged man. The film also contains a scene where, although the movie audience understands the act is not taking place, one character believes he is watching a teenage boy performing a sexual act on an older man. [/i]

    Actually this law was aimed mostly at foreign comic books and animations, particularly those from Japan, Which routinely depict high school students (typically aged around 14-17 years old) engaged in sexual activities or depicting them in various states of undress and/or contain images of upskirt [url=http://en.wikipedia.org/wiki/Fan_service] "fanservice"[/url] shots.
    Edward Meyers
    • Good points

      Great info, Edward.

      http://opendomain.blogspot.com/
      opensourcepro
    • The way I see things ...

      I believe as a general principle, if companies would like their products to be used as much as possible, they should give people the freedom to do whatever they want with it, and then rely on society and its laws to regulate them. That is precisely the reason the US is so great in just about all areas of expression: specifically because of our first amendment. Also, as a general principle, if you want people to behave in an upstanding manner, the best you can do is make your pitch at them, then walk away and let them make up their own minds and live their lives the way they see fit. Every time people try to force their standards on others, things go badly.
      P. Douglas
      • Means and Ends

        Edward may have sidetracked us onto a censorship debate, but seeing as we are here anyway: I can assure you that it would not be beyond my creativity to make an obscene movie with animated squares of felt, let alone "The Movies". And even as we speak there are things on "The Movies" site that can make even me blush: nudity is the least of it. Intention and invention are always going to circumvent the limitations of the tool. I understand that the USA has a litigious culture, but it does seem very unfair for Lionhead to be at legal risk from the goings-on of their users. Isn't this another good reason to license The Movies and other animation platforms as authoring software instead of a game? Then the makers can pretty well wash their hands of the content published by means of it.
        Hippobabe
        • It's not a sidetrack

          The author admits that they want to keep what they consider obscene material off their website, the only place that appears to be where you are granted rights to post if you use the included models, sets, props, etc due to the fact that they don't grant you distribution rights of the combined works, and several blogs claim they have censored materials. Their license reflects such desires to censor works made with the tool.

          FYI the animation that holds the Guinness world record for most profanity and violence in an animated film with 399 profane words, 128 offensive gestures, and 221 acts of violence is South Park Bigger Longer & Uncut (impressive, considering the film only runs 81 minutes), could indeed be made with squares of felt.

          I honestly don't believe it is just fear of litigation due to someone making a film that includes nudity that they want to control, as I also have doubts if you created a parody film that heavily criticizes the companies that produce the game it would also not be censored.
          Edward Meyers
          • Speaking naively

            Yes, it's not just indecency and pornography, there's also hate speech, blasphemy, disinformation, "sick" content, propaganda and other nasties to contend with. That's yet another facet of the emergent mass creativity on the internet that has to be faced. No creative medium in history has not been turned to bad ends. But censorship of legitimate opinions and criticism - wouldn't that be unconstitutional in the USA? It is here in South Africa, in letter if not in action.
            Hippobabe
          • Re: Speaking naively

            I believe what is unconstitutional is preventing someone from expressing himself. It is however within your rights to not allow him to express himself on your property ? if e.g. you find his expression objectionable.

            I think a good model would be to allow people to download development suites that allow them to create media freely. Sites could then censor what gets displayed on the properties, but let people find other sites to upload their stuff to if they want. Artists and other content owners could then be encouraged to license out their IP in very straightforward manners, to earn extra revenue ? similar to the way there are thriving component ecosystems around popular software development systems.
            P. Douglas
          • You would have to claim fair use.

            If your work really was a parody and it was censored by LionHead what you would do is host it somewhere besides LionHead.

            LionHead then could send a DMCA [url=http://www.copyright.gov/title17/92chap5.html#512]take-down notice[/url] to that web host.

            The host is suppose to remove the material and make a reasonable effort to contact you to inform you of the removal. A sample was done of web space providers by publication "The Register" to see if any web hosts actually sent notification by posting a Public Domain speach on several web hosts then sending their own take-down notices, only 20% did, most providers just yanked the material.

            Once you are notified you can then post a counter notice. The web provider has 10-14 bus days to put the material back up after your counter notice. The web sevice is off the hook but you are not.

            LionHead could then send a "Subpoena to Identify Infringer" to get the web host to turn over your subscription information. The web host would then turn over your information to LionHead.

            LionHead would then sue you for copyright infringement. You would have to go to court and argue possibly (Note there are more possibilities);

            1. You do not infringe as your work does not include any of LionHead's [b][i]copyrightable[/b][/i] material.
            2. Fair Use or another affirmative defense.
            3. In this case there is also a third possibilty and that is the terms of the license vs. the advertised rights do not match. From the marketing material one would think they could create their own movies and post them to any website they wanted to.

            Most likely you will argue number #2 although Static Control Components (Lexmark case) argued #1 (Although this is diffrent than a loader program) and the court agreed with them and Spitzer won in NY on #3 against Computer Associates.

            As you can imagine this would be a very costly venture that involves court time and the chance you will loose and what not... More than likely someone who would post on a free service would not be able/be willing to pay legal costs to defend their parody. Hence we have censorship by threat of lawsuit.
            Edward Meyers
  • Not a stitch of proprietary content, but...

    Quite coincidentally, I am in the process of making a movie in which I do not use one particle of "The Movies" artistic content - not animations, costumes, backdrops, sets, nothing - but I use the infrastructure and my own content to generate a rendered video file. How on earth would we calculate the ownership odds in a case like this?
    Hippobabe
    • It is indeed possible

      The movies allows you to import your very own content. That is why their website has the TOS it does so that they have rights to your original work, if you post there.

      However with that said the same tools to create the 3D content you will import into the game typically also have the ability to animate that said content. This would defeat the purpose of using it as a content creation tool.

      Also if you plan on posting on one of the "free" online video services you are limited to a "low resolution" rendering, YouTube for example displays it at 400X300 pixels.

      Where am I going with this? Bryce 5 for example, if you don't catch it in one of the promotional freebie give-aways (Poser 5 is also offered for free by the company that makes it as promotional freebie give-away also from time to time) the latest of which was Sept 6 of this month, lo-bandwidth version is $59.

      Furthermore I pointed out easy to use free tools that could be used to animate your own works that does have a license that allows you to distribute the combined rendered works.
      Edward Meyers
      • Did I Ever Tell You...

        ...what a great time I am having checking out the links to Movies alternatives? Big thank you, Edward, for those pointers. The South Park stats are stunning too. You interest me strangely. Now too business. I'm wondering what has happened to all the other participants in this conversation. Lionhead? Other amateur movie makers? Anyone? It can only be a matter of time until someone makes something of commercial or major cultural import with The Movies or, indeed, one of the other platforms you mentioned before. I don't mean a professional studio, just one of the many humble toilers in the vineyard of what Denise calls the artistic ecosystem. What then? Will Poser et al be satisfied with no share of the proceeds? Will The Movies exert their rights to embargo it? Gentlemen, start your crystal balls.
        Hippobabe
        • There are actually a lot of great tools out there

          There is a growing number of free content creation tools out there.


          HP put this one together http://www.jahshaka.org/

          Then there are these two http://cvs.cinelerra.org/ and http://lives.sourceforge.net/

          This company went bankrupt but GPLed their source code before going under, so the tool lives. http://www.synfig.com/

          Toonka Films didn't think there were enough people interested in animation in South/Latin America so they had this written http://ktoon.toonka.com/


          They all aren't 3-D tools, the last two are clearly 2D ones, but they are still useful none-the less.

          Also there is a Live CD dedicated to content creation called Dyne:Bolic http://dynebolic.org/

          Then again, as I mentioned before, there are some very very useful and fairly sophisticated tools that are sub $100 PC world compares 2 of them here http://www.pcworld.com/article/id,118574-page,1/article.html
          Edward Meyers