Machinima for Dummies

Machinima creators are in for a bit of a shock.

Let me rephrase that. Machinima creators who move from games engines to non-game engines - as many commentators including me are advising - are in for a bit of a shock.

You see, we’ve become used to Machinima having the potential to reach huge audiences. Strange Company’s Fair Trade piece in World of Warcraft, for example, has reached over 120,000 people by now. Films like Still Seeing Breen, The Return, and of course Red vs Blue regularly attract TV-sized audiences of more than a million people. Certainly at Strange Company we’ve become used to the idea that a film attracting less than 10,000 people hasn’t lived up to its potential.

So how many people are non-game pieces like Tom Jantol’s beautiful Wizard of OS attracting? It’s one of the most feted films in the recent Machinima past. So, surely, a few hundred thousand at least?

Nope. I don’t have figures for Machinima Premiere’s viewing, but for all its other outlets, after more than a month, Wizard of OS, which took 5 months to make, has gotten just over 1,000 views.

The figures carry over. When We Two Parted, Strange Company’s new film, has only broken the thousand view barrier thanks to a high-profile posting on Machinima.com’s YouTube channel - and many viewers there are, shall we say, less than enchanted with it. Even What I Love About Christmas, the seasonal comedy piece from Phil Male Restroom Etiquette Rice has, after 6 months, a lot of pushing, and help from Phil’s millions of viewers, only just crested the 10k mark.

By comparison, Baron Soosden’s I’m So Sick, added only three months earlier, has so far racked up 250,000 views on the ‘tube, which isn’t even the primary medium on which most people watched it. And much as I like the Baron’s work, I’d have to say that Phil’s Christmas rant is at least as good and (you’d expect) more viral.

So what’s happening?

What’s happening is that Machinima creators who move away from games engine lose their inbuilt games audience. Now, the way this works is actually a lot more complicated than it looks, and misunderstanding it could cause you to trip up - it did for me.

What’s going on?

There are basically three components at work here:

1. Communities. These games have websites associated with them, and people talk about things related to that game on that website. This is very important - it’s not about how many people are interested in a subject, per se, it’s about how many websites there are devoted to that subject, how active they are, and how many viewers they get.

   This is an important point to bear in mind when thinking about a film. We tripped up here. We’d reasoned that Byron is a well-known name, and hence we’d be able to raise interest in the movie. However, we forgot that there aren’t that many places on the Internet where people talk about him, and those that do are highly academic and out of our grasp. Hence, despite the fact that lots of people like Byron, we couldn’t find anywhere to talk about the film - unlike World of Warcraft, say, there’s no RomanticPoetsInsider.com desperate for content.

   The games world is one of the fastest-moving, content-hungriest, internet-savviest interest groups out there. As soon as we move out of that stream, it’s a lot harder to inject our works into conversation.

2. Familiarity. “Animation” doesn’t have good associations for most non-animators. Either it references “kid’s stuff”, or obscure Eastern European art films with characters made from matchsticks. Normal people don’t hear “animated film” and think “ooh, I want to watch that”.

   On the other hand, millions of people on the ‘net have very positive associations with phrases like “Half-Life 2”.

   We avoid the unfamiliar, by and large. Machinima’s engine connections give game Machinima a huge step up by connecting something potentially threatening (a short film made by someone they’ve never heard of) with something very positive (a game engine they love). As soon as you move away from that, into a minority interest like Moviestorm or even pro tools like Tom uses, you lose that connection.

   There are ways to combat that, of course, like writing fan-fiction based on existing universes, but ways to combat it whilst not embroiling yourself right back into copyright problems are much, much harder to find.

3. Catalysis. What are the films that gain the most hits on YouTube in a given day? Well, they’ll either be the ones on the front page, the ones being linked to by MSNBC or BoingBoing, or… the ones that are already popular.

   The hardest part of gaining an audience for most films is getting the initial momentum going. With BloodSpell, we were very lucky to get that thanks to an approving post on BoingBoing. With Fair Game, we got it from WoWInsider.

   A games audience on its own can’t propel a video to success. For that it needs to be both good and, often, well-marketed, either in concept or after release. But what a games audience does do is offer a few hundred or thousand people who WILL watch just about anything semi-competent produced in the engine. A bit of buzz from them and it’ll rise to 10,000 or so - and news sites will start to hear about it. Above 100,000, a film starts to generate its own momentum - people will simply look at the number of views and conclude it must be something special. And above a million, so I understand, the problem is keeping up with your own film as it rolls.

   Getting the catalysing first few hundred viewers, particularly making sure those viewers are likely to be people who will post and talk about your film to others, is much, much harder without a games engine audience to back you up.

So What Can We Do?

Well, I don’t have any real answers. I have a few suggestions, but I’m still feeling this territory out. If you’ve got ideas on how to overcome the PR gap, please do post ‘em in the comments.

• Consider making game movies : Yes, I know what we’ve all said. There are loads of good reasons to not make game movies. But there’s one very good reason to do so, too - audience-building. A popular game engine movie or movies can build you up as a name, can ensure that fan sites will report on your next movie even if it isn’t in a game engine, and can ensure that you have the catalysing few hundred or thousand hits from fans of your past work.

• Make series : It’s becoming increasingly obvious that the killer app for the Internet video is the series. Blip.tv and Machinima.com both work on this principle, and they’re both right. Series allow you to build an audience over time. They give you multiple release points. They give you opportunities to come up with new angles to publicise your films - for example, BloodSpell got a boost half-way through from the Leipzig Games Conference controversy. And they let you attract an audience that might start with a single video, but will probably check out the rest of your work too. Again, it’s a familiarity thing - the first time they hear about your series you’re an unknown quantity, but if the same person hears about you again and again, you become known, familiar, and eventually they’ll check your work out.

• Design movies with an eye on publicity : I know that sounds pretty horrible. But if you’re anything like me, at any given time you’ve got more ideas for movies than you’ve got time to make them. Consider making the one that you can most easily market, if you’re going the non-games engine route. Consider the communities who would be interested in it (and check they actually exist!), consider the news hooks (can you get a famous person involved?), consider, even, if it’s going to have a really striking YouTube thumbnail. All these things matter.

• Make movies for yourself, not an audience : I got a good telling off from Johnnie, my co-author on this blog, after I ranted about all the problems I was having publicising When We Two Parted. He asked me what I was making the movie for - to make a good movie, or to get large numbers on a counter on YouTube?

Now, that’s actually a difficult question for some films. For my upcoming non-Machinima series Kamikaze Cookery, I am, in all honesty, primarily making it to make money, which means that I need numbers. But for WWTP, I was making it because it was something I wanted to make, an image I had in my head. And I got that image down onto the screen fairly successfully. Which means that WWTP is a success for me, even if only 100 people had ever seen it.

Be clear why you’re making a film. If you’re making it for yourself and art, then it doesn’t matter how many people see it. Although, obviously, more is nicer than less…

Gamerz Theatre has a great little article on putting live-filmed pilots in Machinima aircraft.

This is an excellent idea - particularly for close-ups, which they only just touch on. You could extend this to Eve Online Machinima, various racing games, and even Medieval Total War - a good way to combine the strengths of Machinima with the strengths of DV.

If you’re doing this, make SURE you get a clean green-screen (easy enough to do with some green fabric and some bright halogen work lights, which cost about $15 each), and pay attention to matching your lighting. Lighting will make or break your composite.

I’m really interested to see more of this work.

UPDATE - there must be something in the air today. WoWInsider is showcasing this marvellous video mixing WoW characters with real-life footage, rather than the other way around - very sweet, and I highly recommend it.

And a few days ago, Free Pixel was talking about using Augmented Reality to film real people next to Second Life characters in real-time - very cool indeed.

It’s CHRIIIIISTMAS! (or it will be soon)

And there are new and exciting engines crawling out of the woodwork left, right and center.

First up, Ricky Grove has written a piece on persuading the Unreal Engine 3 editor to work, both with Gears of War (fail) and Unreal Tournament 3 (pass). It’s an interesting read, and includes links to some great resources too. I’ve had a look at the U3 editor myself, and there’s some real power in there.

Secondly, Cinemassively points us to this Machinima trailer for Pirates of the Burning Sea. Very impressive stuff - nice swashbuckling swordfighting animation, some truly awesome ship combat, and what looks a lot like a lipsynched character. I forsee a lot of pirate Machinima coming out, probably starting with the PotBS open beta, which will open on December 7th.

So that’s four engines at least we need to cover: Halo 3, Source, Unreal 3 and PotBS, plus the updated Moviestorm tutorial. We’ll be getting into those in the new year.

Of course, time is always an issue. Just out of interest - would any of our noble readers be interested in a subscription-based service, where we promise to deliver MfD-the-book-quality content every month or so, in exchange for a small number of your pennies? It’s no more than an idea at this point, but it would potentially allow us to spend more time developing quality Machinima tutorials.

We recommend focus-grouping your work a bunch of times in Machinima for Dummies - where by “focus-grouping”, we mean “getting people who aren’t you to watch your film before it’s released”.

It’s one of the most valuable processes you can go through. Ideally, it’s most valuable when you can cross-question your audience, but any eyeballs that aren’t yours or your team’s on your work will help pick up the problems that you’re too close to what you’re doing to be aware of.

The problem, of course, is finding people to focus-group on - particularly people you don’t know! By definition, you can’t just call them. Or at least, you couldn’t.

Amazon.com’s new ”Mechanical Turk” technology looks to be perfect for doing low-cost “mall tests” of your film. Essentially, it allows you to hire as many people as you want for a very small task - like, say, watching a short movie and commenting on it. In terms of costs, it’s very cheap indeed - this Slashdot poster paid $1.45 for people to come up with rebuttals to an argument he was making online, for example.

So it would be trivial to set aside a budget of $30 or so - well within reach if you’ve spent a month or two on a film - and use Mechanical Turk to find out what Real People think of your film before release, allowing you to correct any mistakes, make clearer anything that isn’t, polish the bits that clunk, and generally get you closer to that 4,500,000 hit YouTube smash!

I’ve been thinking about trailers - as you do.

(Well, actually, if you’ve got a feature film coming out that took four years of your life to make, yes, you do!).

Now, I and other Machinima creators have tended to go one of two ways with trailers:

• Release them well before the release of the film, usually whilst you’re still in production or,
• Don’t have one.

Option 1) is definitely a bad idea. For starters, if you’re still developing the look of the film, your trailer won’t be as slick as your finished product - and your trailer should ideally be the slickest element of your film package. Secondly, no-one ever gets their time estimates right on a Machinima product, for the same reasons that no-one ever gets the time estimates right on software development - too many variables, too much variance. That means that your trailer will come out months and months before your film, in all likelihood - giving people time to forget it.

(I’ll have a piece up on scheduling and estimating Machinima production at some point, but the summary is “don’t if you can help it”.)

At best, a trailer beforehand might help build up some anticipation, but it isn’t guaranteed - and worst case, you’ll actually convince people that your production quality will be lower than it is.

(We speak from experience. The BloodSpell trailer was not well timed.)

Option 2) is a common one, but it’s also not a good idea if your film’s more than about five minutes long. Just as there’s a steep cut-off point for download sizes (a 10 Mb download will attract 5-10 times the number of downloaders as a 100 Mb download), I’m fairly sure that there’s also a cut-off point beyond which people won”t experiment with a long film. I’m not sure what it is, yet, and I think that it’s longer than you might expect, but it’s there - particularly with an unknwon quantity.

And yet, the reluctance to download or watch goes away if you’ve got a track record. Brandon “Oxhorn” Dennis, for example, recently released a 12-minute film, the third in his “Inventing Swear Words” series - longer than I’d normally expect a peak-popularity film. However, he’s getting remarkable figures - 83,000 views in the first week.

So why trail? Because it gives people a “teaser” work to get some idea of the quality they can expect. Given that even if you’re a prolific Machinima creator, there will always be new people coming to your films, having some kind of short work is a good way to go - and having a trailer, particularly if you update it for each part in a series, say, is a good way to ensure that the first part of your work that they watch is the best (a critical problem that we had with the original BloodSpell series - Episode 1, being the first one we made, was by far the weakest episode).

But again, when to release the trailer? Well, taking everything into account, it’s seeming to me that the best time to release a trailer is at exactly the same time as you release your film. It provides a “proof of concept” as mentioned above. It provides a quick way for lazy or harried media types to get a sense of whether you’re worth bothering with. And it hopefully ensures that curious people arriving at your site but not wanting to dive straight into a long piece will look at a recent work full of your best efforts, rather than hunting around for a shorter film you’ve made (which was probably earlier and therefore worse).

We’re going to be trying this approach for BloodSpell. We’ll see how it goes.

Not everybody will be aware that Wiley (the publishing company responsible for the … For Dummies series) regularly provide sample chapters from their titles on their website. Machinima For Dummies is no exception: you can read the first chapter, as well as perusing the contents and the index, at Wiley’s website.

Of course, a mere $19.79 will get you every single chapter plus a DVD packed full of Machinima-related goodness including a complete Machinima creation environment …

Sorry. That was a bit shameless, even for us, wasn’t it?

One thorn in our side throughout the writing of MfD was the ongoing lack of a decent video editing package in Open-Source, Windows-friendly form - hence the fact we use Sony Vegas throughout the book.

It’s pretty much the only major lack in the Windows Open-Source canon these days - there are 3D modelers, accounts packages, audio editing software, but the only half-decent video editing packages are Linux-only.

However, this new package, Viva Video looks promising. It’s fairly simple, but it looks usable, which is frankly more than I’ve seen from a Windows OS video editor before.

Anyone used it? Is it more useful than Windows Movie Maker?

We’ll probably have a look at it in the next little while, if we get a chance.

Update: It only imports PAL DV format video. That’s more than a little limiting, although it still might be of use to some people. The inimitable Phil “Overman” Rice also recommends taking a look at ZS4 , a non-OS but free video editor - I’ve not used it, but it does look featureful.

This is fantastic news: Blizzard have posted their own set of Machinima rules, which are arguably even clearer and allow more than Microsoft’s first draft of their rules.

Key points:

• Their “offensive content” clause is pretty clear: keep it within the T for Teen ESRB rating of WoW. That’s a clear guideline that’s easy to work within.
• They don’t allow commercial work, but there are exemptions for sponsorship. This is very cool - it’s clear that Blizz’s primary concern is to make sure as many people can see WoW Machinima as possible, and it’s very cool they’re allowing some revenue opportunities within that. The wording here also might imply that RvB style “premium memberships” or selling DVDs is permitted provided that your production is still available to view for free - I’m not at all sure about that, so I’m going to try to get some clarification and report back. I initially misread this clause - don’t take this one to the bank yet.
• There are no fanfic or sound usage limitations. Woo!
• They’ve got a direct contact address for any Machinima-related questions: machinima@blizzard.com

There are a few downsides:

• The “offensive content” clause is clearer than MS’s, but it’s also more limiting. The ESRB’s Teen rating allows “violence, suggestive themes, crude humor, minimal blood, simulated gambling, and/or infrequent use of strong language.” That’s fairly broad, but it’s clear that you couldn’t make Red vs Blue comply with those rules, for example. MS’s rules are less clear - meaning you can be less sure if you’re in trouble - but they also allow more latitude, as MS have said they’ll be making decisions based on quality, not just content.
• Blizz request that you seek approval from them before you enter your film into contests and film festivals - this is the only “oh, dear” prohibition for me. Personally, I think that this clause might get changed pretty soon: for example, if I was publicising a Machinima film, I’d be requesting 25 or more of these a month (for film festival entries). Add a few more serious filmmakers into the mix, and you’re talking about having to hire someone full-time just to deal with Machinima.
• No mention of a commercial license. Blizzard don’t mention any possibility for commercial licenses for WoW Machinima (except in a clause saying “you can’t sell your work without written permission from Blizzard”). That doesn’t necessarily mean there aren’t any (and I’ll be looking into that) but initially I don’t get the impression of openness to commercial ventures that the MS license gave.

Overall, this is great news, and it’s great to see Blizzard taking steps to support the Machinima community around World of Warcraft.

And on a personal note - let’s just say this couldn’t have happened at a better time.

(Thanks to Brandon “Oxhorn” Dennis and Bilius at Shattered Keyboard for the tip on this! There’s also some discussion of these rules going on over at WoWInsider.)

I’ve got a few comments back from Don McGowan, the author of the Microsoft Gaming Rules, on various points people have raised and questions they’ve asked.

(If you’re wondering what the hell these “Gaming Rules” are and why Machinima for Dummies seems to have suddenly become a law blog, read this summary to get the latest. )

First, and most importantly, they’re putting together a standard contact if you’re interested in enquiring about commercial licensing. Hopefully we’ll have more news on that soon - they are working on it!

Secondly, on the issue of extracting 3D models and so on, Don says:

“I get nervous about approving things in advance because people are so damned inventive… I’d say that if someone can get assets off the disk in a way that doesn’t require them to do anything that’s illegal in their jurisdiction, then I can’t stop them. Does that help?”

I’m *so* not a lawyer, so I asked Fred von Lohmann if that means that extracting things from GL streams are fair game. His response:

“There is basically no way to answer that with any certainty. There is no consensus about how far the term “reverse engineering” reaches. Some companies (Blizzard) have argued that just eavesdropping on a wire to figure out an undocumented protocol constitutes “reverse engineering.” I think that’s crazy, but you never know how a court might rule. In any event, it’s like most of the other restrictions in the MSFT license – most machinima creators can’t afford a legal fight with MSFT, so if you think what you’re doing will annoy them, call a lawyer first. ”

Personally (and please remember the “I’m not a lawyer” rule) I’d tend to approach this the same way I’d approach a potentially offensive piece - if it’s short, just do it and see if they tell you to take it down (and make a stink if they do). If it’s long (like six months plus of production), ask Don and company first what their feelings are on your proposed techniques, call a lawyer and get their opinion, or both.

Obviously, the above discussion applies to the US specifically. In other juristictions, reverse-engineering may be more allowable or more well-defined. Check with a lawyer.

OK, I promised a longer article on the Game Content Usage Rules. And boy, are you going to get one. Strap in, this one’s a doozy.

Before I start I should note that the ineffable Fred Von Lohmann, who was on the same conference call about these Rules as I was, yesterday, has posted a shortish analysis of the Rules from a legal perspective, over at EFF Deeplinks. His article’s worth reading if you’re at all interested in this topic.

OK, OK. Back up. What are these Game Content Usage Thingies, and why do I care?

So we said a little while ago that we’ll be keeping this blog up to date with the latest developments in Machinima. And something big - like, really big - just developed.

Microsoft released a usage agreement for Machinima creation using its engines. That means that, for the first time, Machinima made in Halo and other engines isn’t even technically illegal - provided you follow their rules.

Now, various bits of those Rules made my and many other Machinima creators’ blood pressure rise. It looked like they were pretty limiting.

Fast-forward some days later. I spent some of yesterday in a massive conference call with Fred von Lohmann, two-fisted fighter for Internet Justice (and Senior Staff Attorney at the Electronic Frontier Foundation) and what felt like about half of Microsoft Games And Legal, including the author of the Rules (whose blog you can read and comment on, incidentally - he’s covering this too, which is awesome). We hacked through the Rules, we covered a lot of stuff, and now I can present you with the definitive guide to the current version of the Game Content Usage Rules - which actually turn out to be pretty darn good.

(Current version? Yep - they’re currently preparing a new version, as I write. Well, probably not literally as I write, because I think it’s about 4am there, but, you know, within a 24-hour timeframe.)

So. Game Content Usage Rules for Dummies, if you will.

Heeeere we go!

Let’s have a look at the Rules. You can sing along at the URL above - I’d recommend having a quick scan before you read on.

First up, it’s worth noting that if you don’t fit into the restrictions within the Rules, you’re no worse off than you used to be. Halo in particular has always been quite “friendly” to Machinima - no prohibitions on derivative works, no Fair Use restrictions. Indeed, the XBox versions don’t have an End User License Agreement at all.

(At risk of a plug, I should mention that Machinima for Dummies the book - due out on Monday - has an entire chapter on the legal aspects of Machinima, how to read EULAs, and all that stuff)

So, basically, if for whatever reason you can’t make your Machinima series fit within the Game Content Usage Rules (catchy title, innit?), you’re exactly where you were before, no better, no worse.

(You may be asking about Halo 3. Well, we’ll have more information on Machinima in Halo 3 on the 25th, when it comes out - I’d say more now, but I’d then fear sudden attack from the Microsoft Ninja Squadrons, and unlike Richard Stallman, I don’t sleep with a katana by my bed. )

Clause Catching

The three clauses in the agreement that have been really exciting everyone are:

You can’t add to the game universe or expand on the story told in the game with “lost chapters” or back story or anything like that.

Yipes. It’s possible to read that as “if you mention Master Chief, we will sue your ass”. However, I’m told that that is very much Not The Intention. Indeed, the MS team had already been following the reaction online, and were frankly a bit aghast.

Why is this clause in there? Well, basically MS are afraid that some obscure Machinima creator will write a story set in the Halo universe that turns out to be very similar to an “official” Halo story, and will then sue MS for “stealing” their idea. It’s a problem a lot of content creators face.

However, they intended this clause to be read a lot more narrowly than it has been. Basically, it seems that provided you’re not explicitly setting your story within the main storyline of the Halo games, starring major Halo characters, MS will be fine with your work. The MS guys were pretty darned shocked at how scared they’d gotten the Machinima community - that certainly wasn’t their intention.

Obviously, the paranoid amongst us (and I’m often in their heavily-armed, fortified, survivalist camp) will say “great, but we’ve only got their word on that.” . No worries. In light of the reaction from the community, MS are looking at redrafting this clause to something totally different - perhaps an agreement that, if you’re using this license, you won’t sue MS for any similarities between your work and theirs.

Even if that doesn’t happen, though, it’s very unlikely that, even in a worst-case reading of this clause, you’d get in trouble. See “Should I stay or should I go?”, below.

(Were The Codex guys right to cancel their production? My feeling is that reaction was a bit hasty. Still, I can understand legal-induced panic!)

“You can’t … use it to enter a contest or sweepstakes”

I’ll just quote DonkeyXote’s blog this morning:

“No one intends for the Game Content Usage Rules to interfere with machinima film festivals or other events dedicated to the promotion of machinima as an art form. We’re grappling with the idea of third parties who are promoting their own commercial website by having a machinima “contest”. If Site X decides to promote its own business by inducing the community to make machinima using our IP then yes, we do have an issue with that. But if someone submits a film to the Montreal International Film Festival, probably not. Sure, when they leverage that into a commercial distribution agreement we’d like to talk with them, but that’s a different discussion for a different day.”

The MS guys were also very, very clear that you CAN submit your Halo films to the Machinima Film Festival, the Machinima Europe festival, or basically any other film festival.

(And if you make Halo Machinima and haven’t submitted to Machinima Europe yet, why not? Get on with it!)

You can’t use Game Content to create pornographic or obscene Items, or anything that contains vulgar, racist, hateful, or otherwise objectionable content.

Right. Say hello to the long arm and dark shadow of the Fear.

This clause really pissed me off when I first saw it - not least because I envisioned a world where I couldn’t use the phrase “pissed off” in a Machinima piece.

And, to be honest, this is the one clause where I wasn’t totally satisfied with my discussion with Microsoft. (To be fair to them, everyone knew from the outset that there was probably going to be somewhere where we didn’t quite see eye-to-eye).

Microsoft are, sensibly enough, worried about the perception of their brand and their characters. This clause exists in case they want to shut down something that they feel harms their brand.

What are they likely to feel is “objectionable content”?

Well, from what I could gather:

• If you’re telling a story set in a game world, with game characters, then you need to be fairly careful. Basically, if they think that your work is genuinely likely to offend people, doesn’t have any artistic merit, and might negatively impact perception of the characters that you portray, then you may not be covered by the Rules. The example I gave was a re-telling of the Halo story with the Master Chief in the role of a Bin Laden character - which the art guys felt would definitely offend and upset them, and the legal guys felt would very much depend on how well the story was told. However, even if you’re not covered by the Rules, that doesn’t mean that you’ll get sued, or that you’re doing anything illegal, by any means. See “Should I stay or should I go?”, below.
• If you’re just using the character models and maps to tell a story outside or not directly linked to the game world, then you’re probably OK. Let’s face it, Red vs Blue is pretty offensive. Again, this is likely to be a call based on quality and content, but they’re likely to be more lenient, and allow more options, if you’re not directly saying that it’s actually Master Chief, for example, who is calling someone a string of Anglo-Saxon names.

Remember - these Rules don’t take away your other rights. If you’re in the US, satire and parody are protected under copyright law’s Fair Use provisions. If you think that you might upset MS, it’s worth having a quick chat with someone like the EFF to see if you can go ahead anyway.

(If you’re in the UK, you’re less protected. Our copyright laws suck.)

More Clause Catching

Let’s quickly pass through the rest of the document:

• “You can’t reverse-engineer” - This one’s a little tricky, as it doesn’t include the provision “except as allowed under applicable law”. That means that if you’re in Norway, for example, where reverse-engineering is more allowed than in the US, theoretically you might put yourself outside the Rules by reverse-engineering. However, the MS guys did say that it wasn’t their intention to reduce your rights, so this is likely to a) not be enforced provided what you did was legal and b) change in the next draft. It’s also very unlikely you’ll ever get sued on this one. There’s no way that MS were ever going to explicitly let you reverse-engineer their game - cheaters would have a field day - but most of the time, they also won’t care, unless it damages them in some way.
• “You can’t sell it” - No surprise. Again, you couldn’t do this before, either. Selling Machinima without a license has always been on the list of things it’s not a great idea to do (RvB have some kind of agreement with MS, for certain), and it still is. However, MS are being VERY open about the idea of commercial licensing, and they did confirm that they will happily discuss licenses that DON’T have up-front payments, so you could work on a series for sale without having to shell out a ton of cash first. This is probably the biggest news in this entire license, to be honest - it’s a HUGE potential deal for Machinima creators. You can probably tell I’m excited because of all the CAPITAL LETTERS.
• “You can’t use the sounds” - OK, no-one’s going to be very happy here, but this is just the way it goes. Microsoft don’t create all their own sound effects or music. Even the ones they do create or have created, they can’t always license out to other content creators. As any sound designer knows, the licensing for the sound and music you use is likely to be horribly, horribly complicated. As a result, right now, they can’t give you permission to use the sound from their games. Nothing anyone can do. This sucks, but there you go. We’re discussing alternate language for this, but there are all sorts of problems with it. Again, from our discussion, it’s very unlikely MS would sue you because you used a few sounds from their game - however, the person who originally created those sounds might. Be careful.
• “You can’t grant anyone the right to build on your creations.” - Yup, right now this limits you somewhat - you can’t publish your work as Creative Commons Derivatives-Allowed. (It’s worth noting that you can use other CC licenses). Basically, this is in here because MS are afraid of a game of Chinese Whispers starting up, and people not knowing what rules they’re publishing under. Again, they’re looking at this clause with the intent to improve it - they’re big fans of game mashups (if you’re one of the people who mashed up the Gears of War trailer, for example, you might want to know that about half the people on my call have probably seen your work), and want to make sure people can keep making them.

Should I Stay Or Should I Go?

You should stay.

You know back before this agreement came out, when you were making your offensive, backstory-based, for-profit Machinima? Nothing’s changed.

Worst case, if you make some Machinima that doesn’t fit into this agreement, you’re in exactly as much legal trouble as you were three months ago. Sure, the Agreement has some scary language about “you can expect to hear from Microsoft’s lawyers” if you breach it, but neither Fred nor I reckon that MS are about to go on a Machinima clampdown, because That Would Be Insane.

Say you’re making a piece of Machinima that makes South Park look like Sunday School material. Will MS shut it down?

Well, first of all, it’s going to cost them money. It costs them money - quite a bit of it - just to send out a Cease and Desist letter. And if you happen to know your rights and decide to be bolshy about it, it’s going to cost them more money to enforce the shutdown. If you actually decide to go to court, or if you live in a foreign country, they’re into the territory of spending $30,000 plus to shut down your film, even if they can.

Do you reckon that they’d risk $30k to shut down your film? No? Then you’re probably fine.

(“But I don’t have the money for a lawyer!” They don’t know that. They don’t know who you are. If the guy who made that offensive Halo video is an IP lawyer, or his father is an IP lawyer, or his family own most of Kentucky, MS might suddenly find they’ve bitten off more than they can chew. They don’t want that, so they won’t do anything unless the reward outweighs the risk.)

Secondly, any time MS decide to kill a film, they’re risking a gigantic PR explosion. Everyone likes bashing Microsoft, and Microsoft are more than a little aware of this. Machinima’s quite a hip cause, and we’re still pretty monolithic - if MS shut down a Machinima film, everyone’s going to be blogging about it. If it happens to be a popular Machinima film - which it pretty much has to be for MS to even notice it - then there are going to be thousands of mad, howling fans out there too. And then you’ve got the Free Speech implications, and suddenly MS is looking at lots of people pointing at it and calling it all sorts of nasty names.

MS Does Not Want To Go There. People on the ‘net get very upset about censorship, and MS doesn’t want any more bad PR days than it has to endure.

The call that MS make here will very much depend on how well they think they can argue its case. If your film is completely without merit to any reasonable observer, then they can and will probably shut you down if you are doing things they’re worried about. However, if you’ve made a competent film which makes a genuine point, or is just plain funny or entertaining, then they’re going to look a lot like they’re attacking free speech if they try to shut you down - and that is something they won’t want to do. So, you’ve got good odds if you’ve got a good film.

Thirdly, your film may well be legal anyway. Whether or not you’re abiding by these Rules, copyright infringement isn’t an open-and-shut case when it comes to Machinima, particularly in the US. Satire and parody are heavily protected under US law. Even if you can’t characterise your film as either of those, you can still argue that you are making a transformative use of the material in turning it into a film - which covers you under Fair Use.

Now, as lawyers say, “Fair Use is a defence, not an exemption”. If you actually end up in court, it’s going to be sticky and unpleasant. But the point here is that it’s going to be sticky and unpleasant for both sides!

The Rules are like an ablative shield against legal attack. You don’t “use” them when making your film, and if you accidentally or deliberately put yourself outside them, you don’t lose any of your other rights - the same rights that were the only thing protecting you before the Rules came out. All they do is carve out a big area in which Microsoft can’t claim you’re infringing at all - they actually limit MS and don’t limit you.

The 99% of you who aren’t working on “Red vs Blue: The Al-Quaida Propaganda Edition” should just keep going. If you can make easy changes to get within these rules, great - because then you’re Definitely Not Illegal. If you’re planning something absolutely massive, then you might want to get in touch with MS to check that you’re OK (or you could call me, and I’ll check with MS on your behalf).

But under most circumstances, even if the first six words of your new film are more offensive than an entire season of South Park, then these Rules shouldn’t stop you.

The Summary

The biggest problem that Machinima groups like AMAS have always had is that games developers don’t think Machinima is important enough to waste executive time on. Microsoft has made a huge step here in actually considering Machinima. That alone is fantastic for us. Where one major company has led, others are much more likely to follow. And that goes double if these rules are followed by a boom in MS-based Machinima creation.

At the same time, these rules aren’t perfect. So don’t stay silent about that. Write to MS. Comment on blogs. Hell, make Machinima films about the problem and how to fix it. Be polite, be reasonable, but speak up.

We can, and should, also now challenge other developers to beat the freedom of this contract. Come on, Epic, Blizzard, all you guys. You can make a better Machinima agreement than this one, right? If it was worth it for MS, it’s gotta be worth it for you too.

Some Legal Bollocks

I’m not a lawyer. I don’t play one on TV. This column should not be construed as legal advice. If you have any doubts, TALK TO A LAWYER. Really. They’re not that scary, and many of them - like the guys at the EFF, for example - even offer basic advice for free.

Also, this column is my opinion and mine alone. It doesn’t represent the opinion of the Electronic Frontier Foundation, Wiley Publishing, Johnnie Ingram, Fred von Lohmann or anyone other than me.

Thanks to

Huge thanks to the various people at Microsoft (whom I’m not specifically naming at their request, but they know who they are, and they’re very cool for doing this), and equally huge thanks to Fred von Lohmann, without whose connections and calming influence this entire deal would have gone down very differently.

Questions?

If you want more clarifications, ask, and I shall answer. I already have a few questions in based on yesterday’s comments, and I’ll hopefully have answers for you over the weekend.