trademark/license and stuff

[Don]

So I just had a random thought. Let's say you want to make a basketball game or whatever professional sports of your choice. You obviously can't use the likeness of the professional players without paying a large amount of $ to NBA and probably most of the guys in the NBA. On the other hand, if your game takes place in a hypothetical professional league it'll be okay to use say Los Angeles but not the Lakers. But you might not be able to get away with the Purple & Gold uniform. So far so good.

Now let's say you want to make a parody. Can you include KoME Bryant for the Los Angeles Fakers? While parody is allowed more fair use powers, you obviously can't just rename a guy as that and then make him exactly same as their real life counterparts. So how far can you get away with resembleness to the real thing? I got this idea while reading message board and I realize if you can get away with parody, you just have to go to a random sports message board and that'll probably have more than enough material to come up with parody. If you have Paula Pierce play basketball in a wheelchair, is that parody or is that slander?

It seems like you can come up with a lot of free recognition leveraging well known icons if you can get away with this stuff. Obviously nobody does this, so I assume there's a legal barrier of some sorts, or is it just something nobody has ever bothered trying? I seem to recall NFL Blitz or whatever the series eventually settled at did something similar and they don't seem to have issues (the game got made after all), so I wonder why people continue to sign these hugely expensive contract with a professional league just for the right to their likeness.

[SineSwiper]

Parody exemptions are a part of precedent, not actual law. So, there is no real definition of how it fits. You can't just make some small changes and call it parody. Hell, that sort of thing is untested with video games. I think the case that the precedent was based around was a SNL skit.

[Don]

Think parody is a matter of fair use, and obviously you have argument over how much of it is original work. If you make a Kome Bryant who is otherwise the same as Kobe Bryant then that's not really a parody, but what if Kome Bryant cannot pass the ball once he gets it? What if Paula Pierce has to always play on a wheelchair so he can't travel?

I think Midway made some football game that wasn't licensed and contained elements like that, and it didn't run into legal issues. Now it probably didn't sell too well either but the major sports obviously charge a ton for their licensed likeness (NBA Jam for example wasn't able to get Michael Jordan's rights when they made the game so he didn't appear in it) and sometimes it's exclusive so even if you're not just a random small guy publisher it might be worthwhile to figure out how to get around it. Of course that'd mean you'd have to make a game that's pretty different from the standard sports, because you obviously can't make a game like NBA Live 2010 and expect to get away with it by just changing people's names.

[Zeus]

If you look at TV and movies, the parodies are highly implied without too many similarities but if you're up on your pop culture, pretty easy to identify. I believe it falls under the "you can't clearly mistake it" precedent that Sine's talkin' about. So if you use Kome Byant it's too close, same with the purple and gold. But if it's, say, Bode Ranyts and he's #24 on the Los Angeles Ponds, you'd be OK

[Don]

If you look at TV and movies, the parodies are highly implied without too many similarities but if you're up on your pop culture, pretty easy to identify. I believe it falls under the "you can't clearly mistake it" precedent that Sine's talkin' about. So if you use Kome Byant it's too close, same with the purple and gold. But if it's, say, Bode Ranyts and he's #24 on the Los Angeles Ponds, you'd be OK

I'm not sure even that will work because it'd be pretty obvious that's supposed to be Kobe Bryant. You'd have to make it some kind of faceless generic star player like how games were when they're not licensed by the professional leagues, so you'd just have a team that is "Los Angeles" (NBA don't own the rights to the city of Los Angeles, just Lakers) and there can be some generic star player. Of course if you go that way then you sort of lose the name draw and will probably get wiped out by the guys who do pay NBA for the licensing.

[Kupek]

I doubt it would fly. The purpose of the game is still to be a basketball videogame first, and a parody second. That is, the parody aspect isn't the main point of the work. You're also getting close to running into the issues Penny Arcade ran into with Strawberry Shortcake: parodying American McGee by using Strawberry Shortcake does not fall under fair use.

[Don]

I looked up Blitz: The League (the game I was thinking of) and it seems like they just have completely arbitrary names of everything with not much resemblance to the NFL. What do other games that aren't licensed by the official league look like? I thought the pro leagues only license very few games since they charge a ton for it?

[SineSwiper]

I doubt it would fly. The purpose of the game is still to be a basketball videogame first, and a parody second. That is, the parody aspect isn't the main point of the work. You're also getting close to running into the issues Penny Arcade ran into with Strawberry Shortcake: parodying American McGee by using Strawberry Shortcake does not fall under fair use.

That was never challenged in court, though yes, it was sorta on shaky ground.

What's odd is that Data East actually won their case with Fighter's History.

[Kupek]

It was never challenged in court because there's already precedence supporting that interpretation.