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I recently got an app for my iOS device called "123D Design." It is a 3D model editor. Upon creation of an account, the application tell you that "your models may not be used commercially."

What exactly does this mean? If I were to create a 3D game and sell it, does this mean I cannot use any models made with that app in my game?

This seems quite ridiculous if it's true. Can companies do that?

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4 Answers 4

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Generally Yes, here No. The key reason is simple: you're told upon creation of an account. That's too late.

There's a large degree of contractual freedom in most of the Western World. Selling a product X under terms that disallow its use for goal Y is not an unreasonable limitation or in violation of any law.

However, contracts have fixed terms that generally cannot be modified unilaterally, especially when that would impact the reason for one of that parties to enter that contract in the first place.

I've checked the public Autodesk Terms of Service, and they do not appear to have such a limitation on commercial use of 123Design.

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I'm going to choose this answer as the best because I agree, if they wanted to restrict my rights using the software, they should have told me upon installation, not after I create an account. –  Zove Games Feb 5 at 16:17
    
Autodesk presented a dialog stating their intention: you may not use your creation for commercial purpose. Seeing a dialog that told you not to do something, but going ahead and doing it because you saw a loop-hole in their contract system. I would find this to be very dangerous. You can get sued, even if you’re right. Looking at 123dapp.com/gopremium, it seems to me that unless you pay a premium membership, you cannot use your creations for commercial purpose. My advice is to either contact AutoDesk and get an official answer from them or get legal advice. –  5ound Feb 6 at 3:11
    
@5ound: You can always get sued. Courts don't reject lawsuits up front. But the idea that "presenting a dialog" is sufficient to alter contract terms is truly ridiculous. Imagine buying a car and being presented with a dialog that you still need to pay an extra $1000 to carry more than one passenger. Do you pay because Ford might sue you? –  MSalters Feb 6 at 9:07
    
I'm not saying that presenting a dialog is a substitute for a contract. A dialog is usually a reminder of what is already in a contract. If Ford's business model revolves around legally charging people for carrying passengers and you found that they accidentally forgot to write it in their contract, then yeah, I would be a bit worried about Ford suing me. –  5ound Feb 8 at 3:26

Non commercial

...refers to an activity or entity that does not in some sense involve commerce.

Selling the game involves commerce. Yes, companies are allowed to do that, the details of that aren't on topic here. You may want to look into a paid version of the software, which likely doesn't have the same restrictions. Alternatively, use a different tool that doesn't have those restrictions.

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If I have some 3D modeling software (or any kind of software that allows one to make something) then shouldn't I be able to do whatever I want with my creations? How can companies restrict this? And what's to stop people from, for example, importing their models into another editor that allows commercial use and re-exporting it? –  Zove Games Feb 4 at 15:04
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They can restrict it because they made the software, it's their choice to make rules about how it's used. Your choices are: comply, or don't use it. Just like most laws, nothing is stopping you from breaking them, except your social responsibility to be a good person and the potential punishment resulting from getting caught. –  Byte56 Feb 4 at 15:08
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If it helps make the situation feel more palatable, remember that they're not claiming any rights to the model; they're just saying you can't use their software in a commercial enterprise (and if you use the model created by the software commercially then the software has been used commercially). –  Sean Middleditch Feb 4 at 17:06

This is a very tricky question that heavily depends on jurisdiction and the specific circumstances.

As a general rule, the content you create belongs to you, and you can do whatever you want with it, no matter what tools you used to create it. Also, as a general rule, claims made by others are just empty words unless it's a law or a contract that you agree to.

This is probably the key question - do you have a valid contract with the toolmaker, where you give away those rights? "the application tell you ..." is not specific enough. I can make an application that tells you that you owe me $1000, and that doesn't mean anything. For example, if you go to the store and buy a paintbrush and afterwards see that it has a label on it "Paintings made with this brush may not be sold commercially", then again it doesn't mean anything.

However, if there is an EULA where the contract or T&C is shown to you before using the application, and you need to agree to it before using it - then it's complicated. It may be a valid contract, or it may be empty words, depending on where you live and the exact details of how it's done. In some locations, any terms shown to you after the purchase is made are null and void, but not in all of them - so you may need legal advice from a local lawyer.

Another specific rule that might apply - if the content you create includes content owned by others, then this is derived work and you require permission to distribute it - this applies to all kinds of game content where you use pre-made sprites/sounds/whatever in your game; or if you make a 3d model that includes parts of other models or ready-made templates, then it also may require that permission to distribute your creation - but it doesn't apply if you create a model 'from scrath' simply by using the tool; if you use a complex tool but the 'creativity' is 100% yours then copyright law doesn't require any permission from the toolmaker unless you have a binding contract where you agree not to do X.

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your models may not be used commercially.

I think they key word here is "models", i.e. they don't want you to sell the models you create. So I don't think it should be any problem creating a game using the models.

But I do think such a restriction is pretty far fetched, and I have my doubts to whether or not they are legally valid. But I have no qualification to give such legal advice.

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Surely using any asset in a commercial game would imply that asset is being used commercially. A game is made of all its parts. –  Anko Feb 5 at 11:23

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