It probably depends on whether it's just in the background or whether you are featuring it. Technically you should get permission, but if it's for a short you might be able to get away with it if you aren't focussing on the game screens.

If in doubt, contact the games publisher, plead "student filmmaker" and see how you go.

Ben C.

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filmmaking.net
(Incorporating the Internet Filmmaker's FAQ)

Please note the opinions expressed here are those of the author only and do not constitute legal advice. The author cannot accept and liability whatsoever for inaccurate or outdated information contained within.
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First, IANAL.

That said, I've worked in a lot of software areas dealing with IP (intellectual property) law and below are my opinions based on my understanding:

1) It is almost always better to get (written) permission up front for any identifiable work of others before you use it. That means if you can tell what it is, you should consider it as a potential problem. Getting permission, depending on how it's written, isn't a 100% guarentee that they can't change their mind and try to sue you later, but it obviously very much reduces the chances of an action.

2) In response to a "can I get sued for X?" question: (told to me almost word for word by a lawyer)

Anyone can attempt to sue anyone for just about anything.

And if it gets past the initial stages it can very quickly cost in the $20k-$50k on up range to defend yourself. Any time someone says it is "impossible" for you to get sued if you do X, is stretching the truth. There are only a few rare cases, usually dealing with the government, where it is truly impossible to bring a case. You can significately reduce the odds of someone wanting to do it or of succeeding, but even a law suit that comes out in your favor can be devastating financially. Note that in many cases, companies will settle cases that are for say $10,000, even if they think they can win, because it would cost them more to defend themselves.

Fair use? Satire? Great, are you gonna foot the $40k in attorney's fees to argue that you are right?

3) People/Organizations usually sue for just a few reasons:
- to make money
- to get someone to do or stop doing something
- to make a point or set a precident
- anger
If a party has no motivation in the benefits vs cost of suing, they won't do it, perhaps even if you are clearly in the wrong. The problem is, you can't read their collective mind. Its hard to rely on this. Even if they can't make any money off you, which is usually the first defence people bring up when justifying violating someone else's IP rights, they might sue you just to prove a point so no one else does it. Or they just don't want their brand associated with your work. Or you just ticked them off.

4) If you have any plans on distributing your creative work, the people in distribution channels are down right paranoid about IP problems and won't touch your work with a ten foot pole unless you can show you've got it all taken care of. Do you have releases for your actors? Are you showing any company logo's? etc.

5) If you are small potatoes and all the rights owner wants is for you to stop doing something (showing your video with their video game in it, for example), you will likely first just receive a "cease and desist" letter. Basically "stop or will we take serious legal action." This happens all the time with websites that post copyrighted works. On the other hand, if the rights owner is ticked because lots of "small potatoes" guys are cropping up, they might decide to make you a poster child and nail you to the legal wall. (example: RIAA and mp3 swappers)

I'm not trying to paint a doom and gloom picture, but just saying that like most things in the legal/business world, the golden rule applies: He with the gold makes the rules. And if you flirt with something that could be, even slightly, considered IP violation, a rights holder with the means can make your life pretty darn miserable if they want to, no matter how small your use or good your intentions.

And to re-iterate: IANAL, talk to one if you want legal advise.

- JC

thanks man, or men. I decided to use my friend, who has a backround in animation, to create the images for me. This is actually better because now he can do exactly what I wanted the real games to do. Extension on this question though. I'll be filming some scenes in an arcade but the characters arent using the machines in any way. Titles will be visible and perhaps some screens, if you look hard enough, but none will be used by the characters or the story. They are simply just a backround. What then?

Everything still has to be cleared, especially if you can see titles. I've been on shows that got in trouble for showing works of art that hadn't been cleared. Also needing to be cleared: every bottle of 409, can of Coke, appliance, etc, that is seen or mentioned in the film. Usually covering the names, turning around the bottles, removing the labels, etc, does the job.

Here's a link to a book excerpt on the NoLo press website that covers permissions for website developers. The same info holds true for filmmakers:?code? http://www.nolo.com/lawstore/products/product.cfm/ObjectID/2C02C865-21E7-497C-9DDDBA058175FFA1/sampleChapter/2#chap?/code?

"On a good gate, that's a wrap."