using copyrighted assets in noncommercial works

[asciibard]

For one of my first projects I'm considering doing a fanfiction sort of thing about a video game, World of Warcraft. My motivation for this is that I have zero artistic sense, so I'd like to design in-game characters and take screenshots of people and scenery to use in my visual novel. My intent is to publish this (post it on a website for public download) free of charge and wouldn't accept donations nor display ads.

I'm waiting to hear back from Blizzard Legal about this but thought I'd ask this community for advice in the mean time. Am I setting myself up for a takedown notice here? Might this fall within my fair use\parody\remix rights? Does it complicate matters that Blizzard is in the USA and I live in Canada?

I don't want to put my heart into this only to be sent a C&D!

[Anima]

It's illegal. The graphic assets are copyrighted, several names trademarked as well.
Fair use would only apply for an actual parody and you should be prepared to get that challenged as well.

If you are unsure about copyright violations, consult a lawyer. Don't trust random people on the net. Don't assume that it's okay until you are told otherwise. Do the opposite.

[LateWhiteRabbit]

It's illegal. The graphic assets are copyrighted, several names trademarked as well.
Fair use would only apply for an actual parody and you should be prepared to get that challenged as well.

If you are unsure about copyright violations, consult a lawyer. Don't trust random people on the net. Don't assume that it's okay until you are told otherwise. Do the opposite.

Anima is right.

Fanfiction and the like are illegal, plain and simple. Since the work you are basing your game off of is ALSO a game, expect Blizzard to respond with a minimum of a cease and desist letter. The chance of confusion between the two products is what the courts would call "high" since they are the same medium.

And fair use and parody often have to be proven in court. Even if you know for SURE that you have the right to use the material under fair use or parody law, it is still legal for the copyright holders to sue you. And you could still lose even if you are in the right.

And yeah, it could matter that you are in a different country.

And you are MOST likely to receive a C&D when your game is finished or close to finished because the companies don't like to waste their time on something that may never happen. So if you press ahead, expect heartbreak later down the road. Even groups that have gotten permission for fan games from companies have had that permission revoked near release because the company management changed.

Moral? Don't make fan games. Seriously, just make your own fantasy world with orcs, humans, dwarves, elves, and gnomes. Will it matter that badly to you that they aren't specifically from Azeroth?

Oh, and nothing in this post is meant as legal advice. (Disclaimers! Yay!)

[redeyesblackpanda]

My motivation for this is that I have zero artistic sense, so I'd like to design in-game characters and take screenshots of people and scenery to use in my visual novel.

There are better alternatives if you're worried about your artistic sense. If you don't want to look for an artist, there are quite a few sources for free sprites and backgrounds. It's sort of a why steal an apple from a bear when you have an apple tree filled with apples in your back yard sort of thing. (I like strange similes)

[gekiganwing]

With any form of fan works, there is always the chance that the copyright owners will C&D your project into nonexistence. Even if the fan work you're creating is completely worksafe, and even if portrays the world in a positive manner, it can happen. If you are concerned, then it may be best to create an original story or game. If you do not feel confident in creating your own drawings, then use art assets which have been specifically designated as copyright-free.

A law professor has written a lengthy but useful article on fan-made media at http://www.tushnet.com/law/fanficarticle.html . It may be worth reading for individuals who are thinking about creating fan works.

Some creators strongly discourage fans from creating any media based on their works. Other creators welcome and even encourage it. (One statement in favor of fanfiction was made by writer James Bow.) I do not know if the staff of Blizzard have made any statements about WOW fanfic, fanart, etc.

[Samu-kun]

Blizzard has a pretty unique copyright policy... The only thing is that nobody knows what visual novels are, so their copyright policy says nothing about what's permitted in terms of a visual novel.

Well, since Blizzard lets people make fan videos, why not just make machinima instead of a visual novel? That's the guaranteed safe path!

[asciibard]

Great advice, guys. What I've written so far has been generic enough that it doesn't have to be a Warcraft story. I was just hoping to take a shortcut on art by taking my own screenshots.

I might still do it in the end. I could always take out the screenshots if Blizzard objects.

[Coren]

Oh, my question is also a little similar - is it okay to use music/background art from a copyrighted commercial game in an unrelated, non-commercial game?

[Hijiri]

Oh, my question is also a little similar - is it okay to use music/background art from a copyrighted commercial game in an unrelated, non-commercial game?

Just like sprites/images, it is a no-no.

[luminarious]

I realize that sound effects are similarly copyrighted assets, but I wonder, how likely is it that someone would notice? Especially if using original art/ story/ music.

Because my fantasy adventure needs battle noises and where am I supposed to get the grunts of an angry ogre? Can't really hire a sound designer either, now can I?

[papillon]

is it okay to use music/background art from a copyrighted commercial game in an unrelated, non-commercial game?

That's much more of a no-no really.

Using in-game content to create your own art that comments on the original is a sort of derivative work... as mentioned, fanvideos/machinima are often allowed to an extent. Telling a warcraft story using your own unique and carefully posed screenshots from within the game is legally questionable unless you have permission, but it's an area of copyright that is currently evolving.

Ripping content directly from a game and using it as-is in a different game, on the other hand, is pretty much outright theft. There's no gray area there, no possibility of fanwork permission, because if it's unrelated it's not a fanwork.

I realize that sound effects are similarly copyrighted assets, but I wonder, how likely is it that someone would notice? Especially if using original art/ story/ music.

There are sound geeks out there who will notice. I have seen lawsuits filed over people realising that the laser sounds in game X were actually ripped from game Y.

Now, obviously, if only 200 people ever play your little free game it's unlikely that one of those 200 people will be a sound geek. But still.

Because my fantasy adventure needs battle noises and where am I supposed to get the grunts of an angry ogre? Can't really hire a sound designer either, now can I?

a) There are sound effect packages of fantasy sounds you can buy, fairly cheap.
b) There are individual sound effects you can buy, fairly cheap.
c) Get a microphone and grunt.

I do all of the above - I like making my own sounds when it's feasible, but some things pros are much better at than I am.

[Anarchy]

Try Voice Acting Alliance where amateurs will do grunts and such for you.

[Coren]

Eh, I could've sworn I've played a game here before that used a track from Umineko... I suppose that wasn't legal, then.

[LateWhiteRabbit]

Eh, I could've sworn I've played a game here before that used a track from Umineko... I suppose that wasn't legal, then.

Nope, probably not. It's a pretty easy rule to remember:

If you didn't make it yourself or buy it from the personal who did, it is illegal to use it. It doesn't matter if you are making a commercial game or a fan game. Equally illegal. There are no exemptions, loop holes, or special circumstances. (Not any in your lifetime anyway. Give it 70-100 years and it'll enter the public domain. So save that fan game design document in a drawer until you're tiny and elderly in a world of robots in the future, then dust it off and go for it! )

[LVUER]

While we're speaking about copyrighted assets. How's if you pay someone to make original music or sound effects for you, and you use it for your own original commercial game, but then suddenly someone sue you for using copyrighted music (THAT music) in your game.