How do I determine if I'm allowed to use an asset from the web in my game?

Question

I need to incorporate other people's work into my game project. I must admit (with a little embarassment) that I am almost completely ignorant about copyright. I only have a vague idea of what it is, what it protects, or what it means when I see Ⓡ or © or ™. Since English is not my native language, reading all those Wikipedia pages full of legal jargon only gave me an headache.

I'm looking for images (sprites, backgrounds, UI elements mostly) and sound. I intend to publish the game (Google Play and Flash/HTML5 game websites, maybe the iPhone App Store). I don't plan to "sell" it directly, but I do intend to insert ads and/or in-app purchases.

I will most likely need to edit the content before including it in my game. Probably just scaling/rotating, but the greater degree of freedom I have, the better.

So, what should I look for, to be sure I have the rights to use the media I find the way I need to (like "royalty free" or "copyright free")? In which cases do I have to ask for "permission" to use that media, and how? Like, send the owner of the site an e-mail?

Answer 1

You need to look for a document or text describing the license of the work you want to use. These can take many forms and there's no exhaustive list of all potential licenses, but there are common ones (such as the ones that open-source software projects are released under, or more commonly for art and related assets, the Creative Commons set of licenses).

Unless the work includes a license stipulating appropriate terms for your reuse of the asset, you effectively cannot use it. While copyright law varies from jurisdiction to jurisdiction, it's going to be difficult to tell which jurisdiction applies when you're looking at stuff on the internet and so you should assume the worst-case scenario for yourself: US jurisdiction, which grants copyright to the author of a work implicitly as soon as that work is placed in a fixed, tangible form. Thus a work without an accompanying license or stipulation that the work is in the public domain, is unusable unless and until you negotiate a license for yourself with the copyright holder.

Similarly, unless the terms of the license say you can modify and redistribute the modification, you can't actually change the work at all and must use it in it's original form. It's unclear to me what constitutes such a "change," legally (does rescaling count? does changing the image file format count?) and thus you should consult an actual lawyer to be sure.

In fact, when in doubt, consult a real lawyer; a real lawyer should in particular help you go over the terms of any licensing deal you may strike up. They are often not as expensive to talk to as people assume, and many will happily answer simple IP law questions for you for free if it means they might establish a relationship with you that will eventually lead to a paying client. There are a number of lawyers who routinely do legal-related AMAs on the game development sub-reddit, for example, who will happily point you in the direction of a local colleague if they have one.

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Ⓡ and ™ refer to trademarks, not copyright, and are for the most part likely to be irrelevant to your asset search; a trademark is basically a recognizable symbol or design used to identify a corporation or brand. This means, for example, the Nintendo logo or similar.

The © symbol indicates copyright, although it is not necessary to include it (in the US it was required up until the late 80s, but that no longer applies).

Answer 2

Here's an academic and global perspective. This is deliberately less practical than Josh's answer, but is hopefully a useful reading guide.

I'm also not a lawyer though. You should talk to a proper one to make sure you understand it right, especially because (as we will see) the exact laws differ between countries.

What is copyright?

Having copyright to a thing means being the only one who is allowed to decide when and how it is copied. This means you are allowed to say who is allowed to use it, and how.

This also means you are allowed to give other people some of that right, if you want to. If you ask the copyright holder of a thing if you are allowed to use it for a particular thing or for a particular time, and they say yes, congratulations, you can use it. But you have to ask them, and you have to do it on their terms. It doesn't matter very much how you ask them, as long as you really ask them specifically and their response is clear.

How do I get a copyright?

In most countries, you automatically gain copyright to things that you create, because most countries have signed the TRIPS Agreement, which promises these things.

What happens to my copyright when I die?

The TRIPS agreement says you should have copyright for at least 20 years after you die. Some countries have decided to make that time longer. Here's a list of how long it is in various countries.

Where does a copyright apply?

Your copyright applies in all countries that have signed the Berne convention, as long as it's published in one of those countries first. (That includes almost all countries.)

What copyright exceptions exist?

The TRIPS agreement also requires signing countries to have exceptions to copyright for fair use. The description for this (given by the Berne three-step test) is:

It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.

It's quite vague, so countries have created slightly different variations of "fair use" laws. However, in most places, this includes uses for critique, education and some non-profit cases. Any project that makes money (or makes it even a little bit harder for the copyright owner to make money) very rarely gets an exception.