Is a game considered commercial if it's on patreon?

[LiveTurkey]

Lets say I'm creating a VN that I intend to release for free.

However, to fund the creation of the VN I put it on patreon and accept donations and all that stuff.

Is this considered commercial or not? I'm asking for the art that lets you use it on non-commercial products but not on commercial ones.

Thanks.

[SundownKid]

Not necessarily. A commercial game is where the game itself is sold for profit.

So if you collect patreon donations and then release if for free then it's still a non commercial game.

[Selidor]

This is probably a grey area, but as an artist, I wouldn't want any non-commercial assets I released used on a game funded by Patreon. I mean, you say you're funding the development via Patreon, but where are the funds going if you're making it with free assets?

Free-to-play games are free to download, but they're still very much commercial products.

[YossarianIII]

If you're talking about a Creative Commons Attribution-Noncommercial license, it describes commercial as "primarily intended for or directed toward commercial advantage or private monetary compensation." The full text of the license is here.

What SundownKid posted is how I interpret things too. However, personally, if I wanted to use noncommercial assets in a VN where money changes hands (even if the VN itself isn't intended to make a profit), I would still probably get permission from the artist first. It helps avoid a misunderstanding, and lots of artists like knowing how their work is being used even when it isn't a legal requirement.

[Donmai]

I'm asking for the art that lets you use it on non-commercial products but not on commercial ones.

You better play it safe in this case, checking with the original asset creator if it's okay or not to use it on a funded game. Some creators state that clearly. See, for example, what PyTom wrote about the commercial usage of the Ren'Py Interactive Director (viewtopic.php?f=8&t=42042):

The Ren'Py Interactive Director is free for non-commercial use, where commercial use includes things like kickstarters and patreon-funded games.

[Imperf3kt]

As stated by others, its a grey area.
You aren't receiving profit, but neither is it unpaid.

Legally, Patreon is considered non-profit, but since nobody knows where the money actually goes, it is also considered crowd-funded.
Patreon is little more than an excuse to rake in a few quick bucks.

I recall seeing one guy setting $1000/week for his art materials.
Since when does digital painting require anything more than electricity?

[Aviala]

I recall seeing one guy setting $1000/week for his art materials.
Since when does digital painting require anything more than electricity?

Well, actually....
Digital painting software is not free, and for eacmple if you're using multiple adobe software, that might be like 100 USD a month. Good drawing tablets like Cintiqs cost 700-3000USD.

But I don't think even the most expensive software and equipment really justifies 1000 a month... A few hundred at best.

[Imperf3kt]

That was the point I was trying to make.
You have the initial costs, and a photoshop license, but thats it. The rest is just your time.
Legally, if your patreon is to cover time lost working, then technically it becomes for-profit and therefore, commercial.


My suggestion is, that unless you have explicit permission, do not use any assets that are not yours. Even 'free for non-commercial' stuff.
I'd also suggest putting together a portfolio of exactly where every dollar from Patreon goes.

[PyTom]

There's nothing wrong with a patreon making money, rather than covering costs. Creative people should be allowed to earn money for their time, just like the rest of us are. That being said - I do tend to think patrons are more commercial than not. It's a gray area, but if I was doing one, I wouldn't use -NC stuff in the game. (I'd also report everything I earned on my income taxes.)

[jesusalva]

As far as i know, receiving donations does not makes a game commercial. Donations aren't taxed and you don't need to declare in most countries.
Plus, donations are pessoal, and not project-related. A donation is done to a physical or juridic person, and not to a project. Therefore, there is no problem if you include donation links on your contact page. Most of times.

I do not remember if asking for a donation before download configures a commercial usage or not. But if the donation is in a pessoal aspect, that is, the game points to you and YOU are asking for donations (and not the project), it'll probably be fine and outside the scope of the project.

I found on TuxFamily Licensing faq why they do not accept CC-NC works. (https://faq.tuxfamily.org/License/En)

As such, if you put a film, for example, under the NC license, other people won't be able to:

- sell your film on a CD without your permission, in a magazine for example
- let mirrors with advertising space distribute your film without your permission
- put your film on TV or websites or a cinema with commercials, which marginalizes your film outside circuits with large audience
- have your film shown in a LAN party or a movie-party that would require people to pay (as they would be essentially selling the film)
- etc

Those are only examples to show that NC is detrimental to the diffusion of your production, which is then marginalized because of your choice of NC. Without NC, you potentially have access to a wider distribution, without having to do anything. The main problem with NC is that it prevents uses that you would have found legitimate, wouldn't you?

[papillon]

If someone is giving you money in exchange for access to your game (patron reward tier), it's very hard to seriously argue that it's completely a "donation". Patreon money is generally considered taxable income, they themselves will tell you this.

It is not safe to assume that it's okay without asking the resource creator.

[gas]

No, what you "give" to pledgers is NOT a grey area.
As it's YOUR responsibility as a creator to attach a license to any product you give away.
Even those on Patreon need a license, if you don't attach it you're stating you're giving away the products without any license you can use later in a cause.
"Price" doesn't mean "Commercial", and "Priced 0" is not "Non Commercial", in law terms.

I'll try to explain it better. A license doesn't physically stop one to reproduce, sell or copy your works. That could happen XD.
It's an instrument YOU use in case someone did it, in a tribunal instance, to purse those who act against the given license attached to the product.
If you don't attach any license on a product YOU are actually distributing, you can't pursue no one. You're powerless.
Patreon is not responsible on the licenses you attach on your products.
On his own site, and of course later.

So the reply is:
All the material you give away is "commercial" or no,t based on the license you state (or lack to state). Even on Patreon.

Donations you get from Patreon are... outside this cycle. Users doesn't buy anything from you.
Technically speaking, you could give nothing to pledgers. There are artists that release nothing, get pledges for months, then they link a free product elsewhere as a result of their "homeworks" those months.
With those money, technically speaking, you cold eat, pay the rent and buy drinks XD.

[Imperf3kt]

I think you misunderstand...

Commercial means the game is for sale. Any price above 0 cents is commercial.
Patreon is designed to cover development costs, it is not for the sale of the game.

However, now the game has share holders. In exchange, you give these "share holders" access to otherwise unavailable content. Suddenly, you are withholding the content, you cannot classify it as non-commercial since it requires a subscription to access, yet neither is it conmercial as you are not selling it. The money is for costs associated to making the game. Its called crowd funding, or more accurately, crowd funding
https://en.m.wikipedia.org/wiki/Crowdfunding. It is neither commercial, nor non commercial, aka, a legal grey area (an unclear, or indefined law)

[jesusalva]

It's not grey area in every country. In my country for example, the law which define copyrights state that any work done by a brazilian, regardless of where, is their intellectual property and you need written authorization to redistribute, which can be given in form of a license.

So, thanks to Yossarian, I've extracted from the license, section 4 b.

You may not exercise any of the rights granted to You in Section 3 above in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation. The exchange of the Work for other copyrighted works by means of digital file-sharing or otherwise shall not be considered to be intended for or directed toward commercial advantage or private monetary compensation, provided there is no payment of any monetary compensation in connection with the exchange of copyrighted works.

I believe this is the section we're arguing about. Right?

So, my understanding at this, which is not really relevant because I'm neither the licensor or your judge, is that you can use patreon as long that it does not consitute primary intend/direction. In other words, no CC-BY-NC on patreon, project progress regardless of donations, patrons aren't sponsoring the project, they're sponsoring you, goal of project is not patreon.

[trooper6]

Donations you get from Patreon are... outside this cycle. Users doesn't buy anything from you.
Technically speaking, you could give nothing to pledgers. There are artists that release nothing, get pledges for months, then they link a free product elsewhere as a result of their "homeworks" those months.
With those money, technically speaking, you cold eat, pay the rent and buy drinks XD.

A number of people, not just gas, have said something along these lines...that Patreon is outside of the commercial cycle: that you with Patreon is about just donating to artists, not about buying products. I want to say that really depends on how the Patreon is set up. I'm a Patron of 6 artists at the moment. Two of them are "give me money every month to support me doing art." The art they then put out may be commercial, may be free...if it is commercial, I don't get it for free, I'd have to pay for it like everyone else. For these two artists, the Patreon is clearly about helping them live and work on their art more abstractly.

However, I am also a Patreon of some artists where the artists puts out a map or song and I automatically pay them $1 per map. I am specifically paying them the $1 for the map. These maps are also on sale from their website for $1. As a Patreon, I get bonus variants, but these maps are certainly non outside of the commercial cycle. I am buying them specifically at a price of $1 per map.

So Patreon can certainly be within a traditional commercial model...in this instance a subscription for products model like a book club.