The problem of the parody-satire distinction: fair use in Machinima and other fan created works.

• Author: Choe, Michael

1. INTRODUCTION II. MACHINIMA AND FAIR USE A. How Machinima is Produced B. Fair Use in General C. Purpose and Character of Use 1. Transformative Purpose as a Subfactor 2. Transformation in Conjunction with Market Harm D. The Nature of the Copyrighted Work E. Amount and Substantiality Used F. Effect on Potential Market III. THE PARODY-SATIRE DISTINCTION IN CAMPBELL V. ACUFF-ROSE MUSIC IV. PARODY AND SATIRE FURTHER DISTINGUISHED A. Decisions Post-Campbell B. Salinger v. Colting V. COMPARING MACHINIMA AND LITERATURE VI. CONCLUSION I. INTRODUCTION

   "Machinima" (1) has been defined as "filmmaking within a real-time, 3D virtual environment, often using 3D video-game technologies," (2) such as a video game's pre-existing characters, environments, sounds, and the game engine. Essentially, it is making movies using clips from video games. A portmanteau of "machine" and "cinema," machinima is an evolving medium of expression that relies largely on the cultural property of others to tell its story. (3) Machinima's roots can be traced to 1996 with the release of a short film called Diary of a Camper by a production group called United Ranger Films ("United Ranger"). (4) Using a hacked version of the video game "Quake," (5) United Ranger created a film compiling various gory scenes from the game that roughly followed the video game's plot. (6) Over the years, machinimators (7) have become increasingly sophisticated in their technique, fueling machinima's explosive growth. In fact, one of the more popular channels on YouTube is run by the Machinima.com Network, which provides over "110 million monthly video views to over 25 million [] unique viewers. (8) Machinima has also made its way into film festivals and associations; furthermore, awards promoting machinima have arisen throughout the years. (9) Today, the types of machinima being created are numerous, ranging from simple gameplay videos and mock trailers, to feature length movies. (10)

   At its heart, machinima is a form of fan fiction, referencing works created by fans that simultaneously exist as copies of the original and wholly new works outside the original work's domain. Under current copyright law, many of these works would often be considered unauthorized derivative works because, by definition, machinima is produced using the copyrighted work of another without authorization. In this respect, it is similar to other forms of fan-created works such as documentary films, written fan fiction, and video mash-ups (11) in that these works push the boundaries of current copyright law and serve as starting points for revealing some of copyright's ambiguities.

   Machinima is unique, however, in that the video game industry's response to machinimators has been markedly different from primary content producers in other sectors. Many large video game companies have created limited licenses granting permission to machinimators to use their content. In turn, this has created a burgeoning market of secondary works that has intensified the passions of an already devoted fan base.

   Compare this situation with the much more established world of fan fiction. (12) Fan fiction is a genre of writing that features characters from television shows, books, movies, and other popular culture sources and places them in new situations. (13) The works are rarely initiated without the original creator's authorization and often done without commercial motivation. (14)

   Like machinima, works of fan fiction almost invariably depend on primary works for their success because fan fiction draws upon the dedication of fans of the primary work. (15) However, publishers and authors of literature have taken a vastly different approach to their secondary works, often resorting to litigation to resolve misappropriation of their work. While there is no case law that directly confronts whether machinima is sufficiently transformative to constitute a protected work under the fair use doctrine, (16) the area of fair use is generally well-developed and will be useful in establishing machinima's status under U.S. copyright law. Moreover, a small body of case law does exist that explores the legality of secondary literature works and will be used as a point of analysis in looking at machinima.

   Determining whether a secondary work is sufficiently transformative has been notoriously difficult because the process is fraught with a fear of making qualitative judgments about the artistic opinion of a work. In trying to overcome this difficulty, courts have sometimes tried to categorize a secondary work as a parody or satire, a distinction detailed in Campbell v. Acuff-Rose Music, Inc. (17)

   While the inquiry into whether a secondary work can be qualified as fair use does not hinge on the parody-satire decision, subsequent circuit court decisions have created a sharper distinction between the two, effectively making parodic works protectable and satirical work unprotectable.

   The most recent example of this distinction can be seen in Salinger v. Colting. (18) In Salinger, the late author J.D. Salinger sued author Frederik Colting for copyright infringement after Colting published a novel based on Salinger's infamous book, The Catcher in the Rye. (19) The District Court for the Southern District of New York ruled in favor of Salinger and the Second Circuit Court of Appeals recently issued its opinion. (20)

   Although machinima and fan fiction differ in many respects, the core of what underlies both of these genres is the same: passionate fans creating works that often enlarge, rather than supersede, the cultural creative space. This note seeks to compare these two types of works in an effort to understand the legal distinction between parodies and satires first set out by the Supreme Court in Campbell. Because machinima is still a nascent form of filmmaking and little has been written on the topic, Part II will discuss the relationship between machinima and fair use in depth and will focus on establishing machinima's uneasy status under current copyright laws. Part III will then briefly cover the Supreme Court's parody-satire distinction created in Campbell, with a special emphasis on Justice Souter's footnote that shapes the distinction and Justice Kennedy's concurrence, which has been influential in establishing current views on the distinction. Part IV argues that the dichotomy is artificial and often leads to judges passing literary and aesthetic judgment on the value of works. It will chart how two lower courts, the court in Dr. Seuss Enter., L.P. v. Penguin Books USA, Inc. (21) and most recently, the court in Salinger v. Colting, (22) have misconstrued the parody-satire distinction in literature cases to the detriment of "promot[ing] the progress of science and useful arts." (23) Finally, Part V will offer additional comparisons between machinima and literature.

2. MACHINIMA AND FAIR USE

   1. How Machinima is Produced

      Machinima is produced using two different methods, real-time and script-driven production. (24) At its most basic level, real-time production is simply a machinimator recording her video game avatar using built-in screen capturing tools. (25) She uses the conventional joystick or mouse and keyboard controls to record scenes, usually from a first person perspective, that are later edited together using video-editing tools. A machinimator may also use the multiplayer modes of the video game where one person assumes the role of the actor while the other person acts as the cameraman recording the actions. Script-driven production is a little more sophisticated in that a machinimator will use tools that require the user to program the camera movements, characters, and special effects. (26) While more difficult to learn, script-driven machinima affords the machinimator more direct control over the actions, even allowing the machinimator to create and integrate her own scenery and characters to the game. (27) With real-time or script-based techniques, the machinimator is not altering any of the low-level software logic of the video game, such as the game's built-in collision detection (28) or physics engine. The machinimator is using higher functions, such as the graphics, characters, and scenery like a motion picture director would use a set and actors to create scenes in the movie. Machinimators can create works that are often too costly, dangerous, and impractical to create using traditional filmmaking techniques. By using the game's existing software logic, the machinimator can focus on creating compelling plots and storylines, rather than the technical and financial aspects of the process.

      However, this ease of production comes with a cost. For both real-time and script-based production techniques, the image is rendered in real-time, and therefore is limited by the individual computer's processing power. This is an important distinction when comparing machinima with traditional computer animation techniques. By comparison, the computer animation studio, Pixar, uses larger server farms to render individual frames of their movies, and each frame can take anywhere from six to ninety hours to render. (29) Real-time rendering often means that the quality is low, giving machinima its distinctive look. The oddly lit, angular style of machinima and the jerky motion of characters are two distinguishing visual elements. Another distinctive feature is the infinite focus of video games, that is, a shot is never "out of focus." This makes sense when playing video games, but means that an important narrative tool is lost when creating a story. Furthermore, a machinimator is often limited to using the stock characters, scenery, and special effects supplied within the video game. (30) While some machinimators can use script-based techniques to integrate their own content, the vast majority of machinimators use the existing elements in the video game due to the difficulties in creating and integrating...