Template talk:Copyright Disclaimer

Needed?

Is this needed? Isn't the fair use clause of the Copyright Law already implicitly stated throughout D&D Wiki? --Green Dragon 00:46, 28 February 2008 (MST)

Technically the fair use clause as I understand it does not allow for the majority of the stuff on this site, so I am personally for keeping the template. The copyright holders are less likely to care that we are using there work (ie: adapting it for dnd) if we give them credit.

“	the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright	”
—US CODE: Title 17,107. Limitations on exclusive rights: Fair use, http://www4.law.cornell.edu/uscode/17/107.html

--Hawk 19:18, 28 February 2008 (MST)

Centering Code

Although the title Legal Disclaimer shows in the center here on the main Template page, something has happened that has made it break when being used on other pages. So it now shows the raw <center> and </center> coding and has the title on the left instead of centered on those pages. Just FYI.   Hooper   talk    contribs    email   18:56, 5 January 2011 (MST)

Could you supply an example? The pages I checked it looked normal. --Green Dragon 21:20, 5 January 2011 (MST)

Fair Use

Fair use is for "criticism, comment, news reporting, teaching, scholarship, or research"[1]. If we make, say, a Dungeons & Dragons class based on a piece of Games Workshop Warhammer IP, using their trademarks and/or text under copyright, it is none of these things - it is for a piece of entertainment. We are not providing real-world information about that piece of IP. The only fair use rationale we can reasonably use is for the articles in Category:Publication. Marasmusine (talk) 02:17, 15 February 2016 (MST)

I don't know how broad "comment" can be, but games may fall under "comment". I am thinking of some game examples to films, etc and I think they can use the same ideas because they are "commenting" on it. I don't know about the specifics to copyright in this sense, and I also am not sure if it falls under a "comment". --Green Dragon (talk) 08:37, 15 February 2016 (MST)

Those examples you've listed, Marasmusine, are just that: Examples, not a definitive list of items that can be fair use. Fair Use is also frequently used to defend derivative works from alleged copyright violations. It comes down to whether the work supersedes the original work (i.e. whether its use is for something radically different from the original work, which, almost every article that currently uses the copyright template qualifies as), otherwise called the works' Transformativeness.

What constitutes Fair Use is not clearly defined in a way that simply be pointed to and checked off, like so many items on a dry-cleaning list (although it certainly is easier when it is one of the things you listed). It is determined partially by the law you're quoting from, and then more-so based on the interpretation of said law by an official of the law through which a model of four-factors is considered. I won't bother listing them, as they're listed on the page that you have linked.

The so-called fifth factor, Transformativeness, is the same factor that allows things like video and audio remixes to fall under fair use. Because the end product, no matter how little or much of an original product was used, was so radically different and, as a whole, is an original work on its own merit, it is protected. It is also recognized as the power behind the parody exception, because parody has an inherent transformative quality.

“	I believe the answer to the question of justification turns primarily on whether, and to what extent, the challenged use is transformative. The use must be productive and must employ the quoted matter in a different manner or for a different purpose from the original. ...[If] the secondary use adds value to the original—if the quoted matter is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings—this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society.	”
—Judge Pierre N. Leval, Harvard Law Review, Toward a Fair Use Standard

The truth of the matter is that there are a drastic number of fair use applications that are employed throughout this site, already. In truth, some of the images we've deleted in the past would have also benefited from fair use, in my opinion, but because it is more difficult to prove in those cases than it is in others (such as when you take the name and concept of a class from a video game, and then turn it into a fully functioning class in 3.5 structure, complete with formatting and features), I usually don't stand to defend them.

In any case, that's my take on it. I have a bit of other literature that I believe supports my argument, but I'll wait and see how this turns out, rather than risk getting caught by the captcha for posting too many external links at once.

Of secondary importance: I also changed the template because of some grammatical errors and because I felt it lacked pizazz. You could say the new one is a transformative, derivative work on the original. =) --Jwguy (talk) 08:47, 15 February 2016 (MST)

Well, that's interesting, but I'll put forth this argument. Imagine if WoTC published, free of charge (so it's "noncommercial"), a D&D supplement featuring classes and creatures based on Warhammer (a Skaven race, for example), for which they claim Fair Use. Would they get into trouble with Games Workshop? Yes, they would be receiving cease and desist letters, and it would be very difficult to defend.

Also, here's a key quote from the subject of transformativeness. "The use must be productive and must employ the quoted matter in a different manner or for a different purpose from the original" [Leval] (emphasis mine).

Even if we do have a template for fair use, it shouldn't be rolled into the Copyright Disclaimer template, they are separate issues. What our original disclaimer is saying is "we acknowledge that we need to remove this material should the copyright holder take issue with it." (and we only need to look at the Tolkien Estate for examples) Marasmusine (talk) 09:56, 15 February 2016 (MST)

In regards to your example, I'd argue that they'd more run into issues with Trademark laws, rather than copyright, but the only thing I could say with any level of certainty, ironically, is Possibly. It is a regular and normal thing to go to court over a copyright claim (see ZeniMax Media v. Mojang AB, for example, as it is a high-profile and well-known case - albeit about trademark instead) in order to establish legal precedent and defend their claim to copyright, even if the outcome of such an action is clearly unfavorable (in the above case, ZeniMax had no chance in hell of establishing a claim that Scrolls was a violation of trademark against 'The Elder Scrolls' franchise - they formed the suit in order to establish legal precedent on the matter, and accepted a settlement, instead).

It could also be argued that, despite WoTC's non-commercial distribution of the supplement, that they would still be operating for-profit and would commercially benefit from the derivative work because it could potentially cause future supplements to sell better by association. In the end, I've no doubt that Games Workshop might pursue it, for any given reason given WoTC's status as a competitor and as a for-profit company that regularly makes a profit on these types of items. But would they win the case? That is much different, and would be up to a court of law to decide. I would say WoTC would certainly have a claim to make in Fair Use, although the scenario may be unlikely, simply because there are few companies who desire to willingly step into legal conflicts.

On the other hand, we're a decidedly non-profit organization (another one of the four factors is Effect upon work's value which measures how the work is affected by the derivative work... which in this case, would be approaching nil, even beyond a commercial sense). Furthermore, we typically use minimal amounts of the subject material, in most things that gain this template (a name, a concept, or occasionally some fanart that depicts characters), and another of the four factors weighs in on how much of the original material is used; Less is more favorable to fair use.

I would also comment that this is in danger of slipping into a false equivalence fallacy; While making character classes based on... oh, what have you... final fantasy characters (that have never seen anything like tabletop) is very different from the original material, making a tabletop supplement based on an existing tabletop franchise is much more similar to the original product. It may still hold up, but these are NOT similar issues, except explicitly on the matter of derivative works.

As for your key quote reference, the emphasized portion does not seem to change anything; The different purpose is wholly satisfied by the complete and utter transmogrifying of the material into something else: going from a character's title and abilities from a video game, and bringing that into a tabletop class that has wildly different mechanical elements, introduces concepts of levels, saves, hit die, formats them with wiki-code, and ultimately creates a whole new work from its sum parts. They resemble each other, and one is based off the other, but they're radically not the same work. They are functionally significantly different, down to what the applications of both materials are, and how they're both presented, and to what end.

Finally, regarding your concern about combining the templates; I would agree if the items weren't being used in a manner that would already suggest they should be combined. I also take issue with the following statement:

“

What our original disclaimer is saying is "we acknowledge that we need to remove this material should the copyright holder take issue with it."

”

What our original disclaimer said is effectively "We know we're violating copyright law; this site is non-profit", and that is a problem. Under no circumstances should we simply deign to acknowledge the copyright violation, alone. In order to present a good faith argument when the time comes, there needs to be an assertion in favor of the content against the copyright claim. We already uphold our responsibilities by removing any and all blatantly violating content on the site. There is no need for a pre-emptive admission of guilt, nor is that ever advisable, in any circumstance. --Jwguy (talk) 10:56, 15 February 2016 (MST)

Also, Green Dragon, do you remember that whole "Geostase Copyright Violation" stuff that got posted on your talk page? It is oddly relevant to this conversation. They contested that we were violating Copyright with Geostase (3.5e Creature), because they owned some terraforming hardware called GEOSTASE. Essentially, they weren't the same thing, we didn't change anything, he made his letter of contest to show his assertion of his own copyright, and we all lived happily ever after. Just something this all reminded me of. --Jwguy (talk) 11:15, 15 February 2016 (MST)

I take transformative to mean taking game material and making a parody, review, song and dance, whatever, rather than making more game material. I'm leaving this now as it's not worth getting worked up over! Marasmusine (talk) 11:33, 15 February 2016 (MST)

I'd comment that game material is a rather large and too broad a category, in my opinion, and it would also mean you couldn't make more music out of music (which isn't the case, as with the mention of audio remixes being considered transformative).

Also, I would hope you weren't getting worked up over this or taking this personally. I'm just trying to improve the template and justify my reasons, not upset you in any way. --Jwguy (talk) 11:41, 15 February 2016 (MST)

I agree that we should not point blame at something that we write ourselves. Seeing this logic further, it also does not make sense to blame something that we can change ourselves. This is a wiki after all. I think that if Wizards of the Coast published a sourcebook derived from Warhammer they would land in some trouble since they cannot reverse this action and also since they are both in the tabletop gaming genre. This problem is a for-profit concern, which does not apply to D&D Wiki, a GNU FDL v1.3 MMC publication website, since we can reverse the action if necessary to the best of our abilities.

Using things like trademarks, character names, locations, etc seems to fit into the transformativeness nature of an MMC tabletop D&D-derived website. Anything which could land us into trouble, needs to be able to be corrected by any user in a fair process.

I do recall the Geostase (3.5e Creature) issue. I feel that we should include a |1=product identify parameter into this template which more forcibly states that the identify references in the page are intended to be used as fair-use transformative derivates and in no way should they affect those related to the identify, and if they do then we will delete the page or alert an administrator to the page.

I feel that the base text should also include a part about that there is any confusion about the applicibaility of the template, then please add something like |2=review to the template so we can analyze the content. --Green Dragon (talk) 11:43, 15 February 2016 (MST)

Well, in the case of Geostase, the page in questions shared no relationship with the claim, just a circumstantial name, so I don't think it required any special notification, although I may be reading incorrectly and misinterpreting what you meant.

As for the Product Identity item, the current template makes note of both the Title/Franchise of the original work and the current Owner of the work. It also notes that the content of the page that the template is applied to is a fair-use derivative work. I can add a portion about requesting users add a {{NeedsAdmin}} template if there is a concern or claim to be made. Is this sufficient? Or do you think we should go one further? --Jwguy (talk) 14:02, 15 February 2016 (MST)

I actually looked up "Geostase" in the patent index but I could not find anything like it. Also, the subject is so different that I think it is totally fine.

This page may resemble content endorsed, sponsored or affiliated to {{{franchise}}} franchise, and/or include content directly affiliated with and/or owned by {{{owner}}}. D&D Wiki neither claims nor implies any rights to {{{franchise}}} copyrights, trademarks or logos, nor any owned by {{{owner}}}. This site is for non profit use only. Furthermore, the following content is a derivative work that falls under, and the use of which is protected by, the Fair Use designation of US Copyright and Trademark Law. We ask you to please add the {{needsadmin}} template if there is a violation to this disclaimer within this page.

How does this sound? Better? --Green Dragon (talk) 11:02, 16 February 2016 (MST)

I was trying to keep it from getting too wordy or riddled with legalese, myself, if only because I don't want it to end up becoming something that our users would dislike seeing. That said, I don't have any issues with your revision. It meets might requirements for asserting our position. =) --Jwguy (talk) 09:29, 9 March 2016 (MST)

Okay I changed it to what I have above. Any questions with it now? --Green Dragon (talk) 14:31, 9 March 2016 (MST)

Here is some information regarding using trademarks under fair use. I bring this up because in most cases we are merely using a company's trademarks rather than text under copyright. In general we can't use trademarks (it's not nominative or descriptive use).

Games Workshop has some specific guidelines for using their trademarks[2]. For example: "Make it clear that what you are doing is entirely unofficial. " This is what this template did (with my last revision). We can use GW trademarks with these caveats, because they give us permission to do so not because of fair use. Marasmusine (talk) 02:45, 12 March 2016 (MST)

←Reverted indentation to one colon

This page may resemble content endorsed, sponsored or affiliated to {{{franchise}}} franchise, and/or include content directly affiliated with and/or owned by {{{owner}}}. This site is for non profit use only. Furthermore, the following content is a derivative work that falls under, and the use of which is protected by, the Fair Use designation of US Copyright and Trademark Law. We ask you to please add the {{needsadmin}} template if there is a violation to this disclaimer within this page.

Do you agree with this wording more? --Green Dragon (talk) 05:26, 12 March 2016 (MST)

I think we are conflating claiming fair use with unofficially using trademarked names. Marasmusine (talk) 13:17, 12 March 2016 (MST)

What would you recommend out of all the choices? I would like to know how you would realistically overcome this challenge, if you do not mind me asking. --Green Dragon (talk) 13:49, 12 March 2016 (MST)

As it has been quite some time since this conversation ended without a real consensus (aside from silence), I've noticed some changes and decisions were carried out elsewhere, and I think it is time we settle this, just to make sure we're on the same page:

What is our stance on Fair Use? I know Marasmusine has concerns and he has voiced them on more than a few topics; I think Fair Use has a strong purpose for not only content based on other content, but also in the use of images, based on the transformational value of the work created.

Green Dragon, how do you feel about this? --Jwguy (talk) 20:53, 8 June 2017 (UTC)

I think that most users do not understand fair use, and making it easier to work with really helps. Of course fair use is a legal situation, so we work within these bounds. A lot of good points where brought up in this discussion, which should help clear up some of the confusion about fair use. --Green Dragon (talk) 22:54, 8 June 2017 (UTC)

This is a really long conversation and IDK how I missed it, but you can't claim that your work "falls under, and the use of which is protected by, the Fair Use." I mean, I can say that, and to my knowledge no one can really stop you from saying it. But legally only a judge can declare fair use. So that wording kind of bugs me and I think it should be removed. If this has already been brought up before, feel free to ignore me :) --GamerAim (talk) 07:00, 24 May 2018 (MDT)

Fair use disclaimers, though technically not a declaration we can make, are definitely worth it. Legally in the USA, IP holders are required to consider whether material would be considered fair use before suing, and will be penalised if they fail to do so; Hence, bringing it to their attention is of legal advantage. Even Wikipedia does it, and fer good reason. --SgtLion (talk) 15:53, 24 May 2018 (MDT)

It's an assertion that we believe we're operating in good faith and under legal protection, and it is definitely something we have the right to make. You're correct that a Judge has to make the final call if it is disputed so far that it reaches court, but until then, we have a legal necessity to maintain our position as being lawfully right and protected.

To put it simply, in US Law, a Judge decides whether that claim is true or not; We still make the claim. --Jwguy (talk) 11:27, 28 May 2018 (MDT)

Franchise Categorization

I believe this template would be improved if it automatically categorized content by which franchise it's from. Some users have already done this with Category:Pokemon.
Among other benefits, this would aid anyone in finding content regarding a franchise they like without needing to rely on someone creating a campaign setting for it. It would also help a user who wants to create a campaign setting or content that involves a particular franchise, but would have difficulty finding all previously-made content that is relevant. This seems like a popular thing with several of our regular users.
I realize this would create dozens of empty categories, but I'd be willing to make pages for the ones that crop up. With the way this wiki runs, it seems like empty categories aren't much of a concern, anyway.
Implementation could be as easy as adding [[Category:{{{franchise|}}}]] in the right spot. I'd be able to add that myself, but the page is locked from my edits. - Guy 10:54, 31 August 2018 (MDT)

Done. I would add Category:Derivative Work to all the empty categories. --Green Dragon (talk) 04:48, 1 September 2018 (MDT)