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BloodSpell Development Updates

Why we couldn't release our own film on DVD: what happened, why you should care, and what you can do

BloodSpell Development Updates

Why we couldn't release our own film on DVD: what happened, why you should care, and what you can do

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I hope everyone's enjoying their BloodSpell DVDs that they've downloaded and burned (not to mention the seperate commentaries). I'm sorry that we couldn't offer an easier way to get the darn things than downloading 10 Gb of data, and then printing your own labels. But, unfortunately, we can't - because despite spending 4 years on BloodSpell, we don't control our own film.

What happened here? Well, for those of you joining the show for the first time, BloodSpell is a Machinima film made using the technology and art assets of Neverwinter Nights, a game released in 2001 by Bioware, who have since been bought by multi-national corporation Electronic Arts. It's not a fan-film (like that should make any difference) but an original story set in a new fantasy world, which I and a team of a couple of dozen other people worked for 4 years to bring to reality. And it's done bloody (no pun) well, with over 100,000 viewers, high-profile press attention, and a lot of favourable comments. I'm not at all unhappy with that result.

We wanted to make the film available on DVD, of course. However, we were sensitive to the fact that we were using artwork that was created by Bioware on the film. Hence, to avoid any possible problems, we made the decision that we would release the film as a Special Edition DVD, but give all the proceeds from the DVD to charity. We nominated Creative Commons as our charity of choice, and emailed Bioware to check they were cool with this plan.

I learned that the question had rapidly been escalated out of Bioware's control and up to Electronic Arts legal. And there it sat for weeks, deep in the bowels of the world's largest computer games conglomerate.

Frankly, we were a bit surprised. Who refuses to let people give money to charity?

But we waited - until the word came down.

"We can't approve your plans with BloodSpell distribution via DVD. I refer you to the terms of the end user license agreement copied below:"

So, ladies, gentlemen, and things of all ages, that's why you've had to download 10 Gb of ISO to watch all the extra features we created, and to watch BloodSpell on your TV. And that's why we've not been able to support a charity that the entire BloodSpell team would have liked to give something back to.

Given all this, you'd think that I'd be furious with Electronic Arts, or Bioware. Well, I'm not, really.

I'm not upset with anyone at Bioware - this was definitely their new parent company's decision, and frankly everyone at Bioware has been absolutely fantastic to us all the way through BloodSpell's history.

And I'm more irritated than furious with Electronic Arts. Sure, it's rather a gutless decision they've made, and it's one that, frankly, doesn't show them up well in light of their competition's increased openness toward Machinima. Who ever thought that Microsoft would be leading the way on fair and reasonable dealings with Intellectual Property? But it's not an unreasonable decision, and, frankly, were it me in the lawyer's shoes who finally gave the no-ahead, I might well have made the same choice.

See, here's the deal. Because BloodSpell uses the art assets of Neverwinter Nights, even though it completely transforms their usage and context, it's treated as a "derivative work" under copyright law. That means that the copyright holder of the original assets has final say over what can be done with the work created with them. In this case, it means that even though we've spent tens of thousands of man-hours working on this story, we exist only at the pleasure of the copyright holders, EA. They control what we can do - even if what we want to do is contribute to charity.

"But surely there's no downside to letting you do what you want!" you might say. "EA are just being evil!"

Nah. There's no reason to be evil without cause. EA are acting quite sensibly.

EA have to give permission for anything like this DVD to be distributed, precisely because of these laws. Most people know that. If we release a DVD of BloodSpell, EA's lawyers and PR people are quite worried that it'll directly reflect on them - because everyone knows that they had to give permission for it to happen, and thus they must approve of it. And they can't predict the future, so they don't know that there won't be some kind of negative reaction to BloodSpell, for which they'll get blamed. And thus, a sensible lawyer will approve nothing, nothing unless there's a very good reason to - because anything else could come back to hurt them.

There's another reason, too. If they were going to say "Ok", legally, they might need to draft a contract. Which would mean even more legal time. Which would cost a lot of money - probably tens of thousands of dollars.

Now, like I say, their decision is very short-sighted. There are plenty of reasons to approve a release like this - good press, new exposure for your brand, increased longevity for your game, and the chance that it'll go Red vs Blue on you, or even bigger. And whilst a single contract would cost lots of money, they could use that money instead to draft a blanket agreement for all Machinima creators, like their rivals Microsoft and Blizzard have done, with major positive PR results. But all of those require EA to take a risk, and that's something embattled multinationals don't generally do.

So, the law - a law, it may be noted, that most people defend as protecting artists - actually creates a huge incentive for large companies to squash or limit small creators like Strange Company. That's what really annoys me about this situation.

The law - copyright law - that's meant to be protecting creators like me actually harms us.

With a more reasonable law on derivative works, one that strongly protected creators who use existing digital material to create genuinely new works, we'd have been able to support charity and give our fans the chance to see our work more easily. With a more reasonable law, creator Phil Rice would have been able to take advantage of the opportunities that his multi-million-view film Male Restroom Etiquette opened up in the TV world - opportunities that were squashed by Electronic Arts, I might note. With a more reasonable law, Terran Gregory and Ezra Fergusson would have been able to turn their mega-hit film The Return into an animated series, and made literally millions of fans very happy, instead of having their - fully funded and ready to go - series squashed by Blizzard Entertainment on the grounds that, get this, they didn't have time to watch it and check it was OK.

How, EXACTLY, does that help anyone?

Now, I'm sure that someone out there is going "yes, but these films DO use other people's art. So, basically, you're just stealing their work and then complaining when they won't let you."

Fair enough, I can see why you'd think that. And to answer you, I'm going to talk about cooking.

I'm a very keen cook. Actually, I've cooked for money before now, and I'm currently making an internet TV program about "molecular gastronomy" - scientific cooking. Now, when I cook, I'm creating a derivative work, just like when I make Machinima. I use other people's recipes - sure, I adapt them, but basically if I'm cooking a spaghetti bolognaise, I'm drawing on Heston Blumenthal's recipe really heavily. And Dr Blumenthal, in turn, is basing his recipe on a whole bunch of other people's work - indeed, in his books, which of course he receives money for, he talks extensively about all the people whose recipes he studied, adapted, and took techniques from.

"Took." Virtually every recipe you've ever seen in any cookery book, magazine, or TV program is a derivative of another. Would the cooking world really be richer if I had to get Dr Blumenthal's permission and approval before I wrote about or cooked his bolognaise, or he could be sued by Thomas Keller for his burger recipe, or Gordon Ramsey and Jamie Oliver had to work every recipe out from base ingredients rather than looking at the work of other chefs?

But there's more. See, when I shoot my cooking program, I use loads of art assets that other people have made, too. They're called "ingredients".

Yes, creating a 3D character is hard work, and the creator should be rewarded for that - that's why I buy games, to compensate the people who made them. But growing a carrot is hard work, too - I know a few farmers, and they work at least as hard as games developers. And yet, when I buy that carrot, I can use it for whatever I want. I can film it, I can cook it, I can eat it raw, I can use it as a substitute for a laser pointer if I want. It won't work well, but I can't get sued for it.

Would the world really be a better place if carrots were licensed "for home usage only"? If chefs had to get the permission of all the farmers who sold their meat before serving it to customers? If some chump like me making a cookery show could have that show totally controlled by the organic farm he bought his eggs from?

I use ingredients in cookery and in filmmaking. In both cases, the end result is not merely all the parts mashed together. And one of the reasons I'm making this cookery show is that I'm tired of not being able to cook what I want in Machinima without having to stir the result with a lawyer.

Deep breath. I'm a practical person. I don't really do ranting for catharsis - I prefer to take action. So what action can we take?

Well, for starters, Machinima creators can stop using engines that are made by unreasonable companies. This isn't a bite-off-nose-to-spite-face deal. Actually, as the BloodSpell alternative shows, it's very practical. We got off very lightly with the DVD deal - it could have been worse - and when you've spent a lot of time on a project, that's not something you want to risk.

I'm afraid that Johnnie and I will probably be modifying our recommentations in the next edition of Machinima for Dummies, whenever that appears, to say that unless you're really, really sure that you don't care about the results of your creativity at all, you should avoid most game engines, because you just can't control your work, and that has a high chance of hurting you, particularly if your film does well.

Avoid EA games in particular. Unfortunately, yes, that includes the upcoming "Spore" and "Sims 3". But EA have such a bad record of limiting Machinima creators, and as one of the few Machinima-heavy games companies to have not yet released any kind of usage agreement for Machinima creators, you just shouldn't risk their reactions if you care about your work. Blizzard fall into a similar category - whilst they have a usage agreement, it's very limiting, and they've shown no willingness to let Machinima creators take their work further.

Microsoft are probably the only games company whose games we'd recommend using - their usage agreement is clear and succinct, and they're open to dialog about other uses.

And, of course, Second Life, IClone, Antics3D and Moviestorm are all fine, clear, free, and definitely good to use.

Secondly, you can support organisations that fight for creators' rights in digital media. Sadly, as of yet that doesn't mean any of the traditional Guilds - WGA, DGA, etc. But it does mean people like the Electronic Frontier Foundation in the US and the Open Rights Group in the UK. Volunteer your time, give them money, give them press, participate in their calls to action, and communicate with them about your own frustrations, battles and fears in this new frontier of creation.

And finally, you can take action yourself. Contact your local government officials and make your concerns known. Learn how to express your dissatisfaction with the current system, read up on alternative suggestions, and TALK TO PEOPLE. Less than 1% of the population ever actively involves itself in government, and really, talking to the people who change the laws is the only way to try to make sure that things improve.

I'll put my money, or at least my time, where my mouth is here. I didn't know I was going to commit to anything like this before I started writing. However. Over the next three months, I'm going to seek meetings with my local Scottish Parliament representatives and whoever is involved with Scottish copyright law, and discuss the problems currently facing creators like me. I'm not promising I'll get anywhere - I'm not a trained lobbyist or politician - but I'll try.

Please try too. Artists should control their own work. We've got an amazing new frontier of opportunity opening up for artists without millions of dollars here - but it's up to us to secure it.

Let's get to work on that.
  • (no subject) -
    • Re: Protecting the artists

      I think this is a great post, not least because of the concrete action points.

      Can you clarify the reason you can put the ISOs up for download but not distribute physical DVDs? Is it because taking money to cover the costs of creating and distributing DVDs would constitute commercial use of the engine (for which you need permission), or is it the case that the end film already contains images or sound derived from copyrighted game assets, and so there's zero difference in your rights to do one or the other; it's simply that Electronic Arts have given you (informal) permission to distribute digitally but not physically?
    • Re: Protecting the artists

      They said we couldn't distribute via DVD. However, we're already distributing via internet, and they haven't stopped us, so we're going to keep on with that. That's basically the reason!
    • Re: Protecting the artists

      Also, because as you say, distributing physical DVDs is going to create a cost, which means we'd either have to lose money or charge, and it's very hard to prove that none of the cash we're charging goes to us.

      But, mainly, EA said "You can't distribute on DVD", so we're not doing.
  • (Anonymous)
    Interesting post. I hope you can find the right person to speak to. I would guess it will take longer than three months to have any impact. Don't give up :)
    • (Anonymous)
      Last post by Kate (whoops)
    • I expect it will too. Three months is more of a deadline - I WILL have started the process by then.
  • Escapist article "The French Democracy"

    "The French Democracy (http://www.escapistmagazine.com/articles/view/issues/issue_88/496-The-French-Democracy)," an article I wrote in March 2007 for the online gaming magazine The Escapist, covers the issue of machinima and copyright.

    -- Allen Varney
    • Re: Escapist article "The French Democracy"

      (Anonymous)
      The mistake (if I may call it that--you get my drift) you made was in asking for permission. While I realize you were trying to do things the 'right' way, and I commend you for that, EA pretty much had no choice but to deny your request. If they knowingly gave you permission to use their intellectual property for monetary gain (even for charity), they would be setting a legal precedent that could come back to haunt them down the road. The best approach for you would have been to proceed with your DVD distribution plans. If EA really didn't mind, they could have stood by silently, which would not have set any precedent since nobody could ever prove they were knowingly giving you a pass. If EA 'had' objected to your DVD, their legal department would have taken the proactive step of sending you a cease-and-desist letter; but then you'd be no worse off than you are now.

      While some might accuse me of promoting a form of piracy, ethically, distributing machinima is far different from distributing software or music or other intellectual property. Machinima is similar to painting a work of art using someone else's watercolors.

      Yours is a classic case of 'better to ask for forgiveness than permission.'
      • Re: Escapist article "The French Democracy"

        We did consider this. However, there was another possibility - if we distributed DVDs, EA could have C&Ded BloodSpell as a whole, preventing us from ever showing our film anywhere. It's a small risk, but a bit of a devestating consequence.

        In retrospect, you're right, we probably should have just gone ahead. But the risks were a bit hair-raising.
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