As the prophecy has foretold, the meta-ness (meta-tude?) of NBC’s television show Community has resulted in a fake part of the show really happening. For those that are unfamiliar, an episode of Community from Season 3 centered on a plot where the father of Pierce Hawthorne (played by Chevy Chase) created a digital challenge for his progeny and seven friends that must be completed in order to claim his inheritance. That challenge manifested itself in the form of an 8-bit game, which meant an episode-long homage to old school gaming in a show that pays homage to just about everything in the television medium.
As you can guess, I’m a fan of the show. As my bio blatantly makes obvious, I’m also an avid gamer. So, when I found out that someone had endeavored to create the game in real-life, my heart soared to new fanboy heights. But, much like Spider-Man’s spider-sense detects danger, the lawyer part of me nagged about the copyright issues inherent in such a Herculean task. So let’s dork out here since this is a legal blog of sorts; I’m here to preemptively make the case that, if this particular adaption of the TV-show-turned-into-a-game-on the-show-then-turned-into-actual-videogame were deemed infringement, it’s still a fair use under copyright law. Let’s jump into the four factors of fair use, shall we?
- Purpose and Character of the Use – Generally, is the use intended to advance the policies of copyright (“promotion of the useful arts”) by stimulating creativity, or is it really just someone trying to be cheap? You see buzz words like the work being transformative vs. derivative, but that’s not really helping here. The game is intended to directly bring to life something that was a fictional representation of aspects of the TV show. Thus, the game as represented in the show is a derivative work, and the attempt to bring it into the real-world is similarly derivative. Like I said, this is not helping here.
- Nature of the Copied Work – Copyright protection depends not on the artistic merits of a work but on the idea-expression divide. Given that this is a fictional game representing a fictional show where all of the characters are original creations of Dan Harmon, there’s a lot of original authorship going on in favor of the show’s creators. And, since this is intended to directly copy aspects of the game as represented in the show, there is a lot of copying of original expression. While the need to subsequently fill out and create new content in the game will result in a lot of original authorship as well, it doesn’t change how expressive the original work (i.e. Community) is and how much it is deserving of protection. This is not going well.
- Amount and Substantiality – Here, we’re worried about the amount and substantiality being copied. Um, since the game is meant to be a faithful version of the one in the show, it’s the whole thing that’s being copied. Damn, this is really not going well.
- Effect Upon Work’s Value – Now, this is where it gets interesting. Here, we want to know what effect the new work has on the copyright owner to exploit the original work. If anything, it arguably increases the value of the show because it engages new audiences in new ways. But, it hurts the potential licensing deal for any game that could be derived. The latter seems like an unlikely proposition since NBC doesn’t exactly treat the show with most-favored nation status and the world is not clamoring for more sitcom-based games. Given the improvement to the value of the show and the unlikelihood of a game ever being developed for it, I’ll give this one to the fans.
So, what does this all mean? It’s not a simple 3-1 factor decision, and some factors mean more than others. The fourth factor (market effects) is often given a lot of emphasis, but none of them are solely determinative. I can’t make a definitive case for fair use, and I honestly see the scales tipping otherwise. If NBC wanted to, it could probably shut this fan down. However, owning something is all well and good, but it doesn’t amount to much unless that something has value. This game only has value in the sense that some dedicated fan brought it to life because NBC wasn’t going to, and that show only has value to the extent you have people that love it.
Maybe it’s not fair use in the copyright sense, but it feels pretty damn good for that fan community and makes them more invested. Now, does that seem like something you would want to stop? Not if you had any sense.
