The Rise of Machinima

Machinima is a burgeoning new film form where films are made using 3D real-time technology. To quote the machinima Academy of Arts and Sciences,[1] machinima is:

‘the convergence of filmmaking, animation and game development. Machinima is real-world filmmaking techniques applied within an interactive virtual space’

To further quote the Academy, in machinima films ‘characters and events can be either controlled by humans, scripts or artificial intelligence’.

Most machinima films are made within one of the following types of environments:

• multiplayer games – Halo and Unreal are commonly used
  
• virtual worlds, such as Second Life and World of Warcraft.

Unlike traditional film-making techniques, including those using computer generated imagery (CGI), machinima is quick and cheap to produce. This has resulted in the form becoming popular with amateur and independent film makers. Like traditional films, machinima films are often filmed using actors, although these actors are usually enthusiasts who will act for free.

Lights, cameras, action

There are a number of methods of ‘recording’ the films, going from very low-fi recording of the frames of the game as they are displayed on screen (although even this can involve recording the action from multiple different angles) to recording the pure data about actor locations and actions with the scenery and actors rendered afterwards. Both techniques allow for records of multiple takes of a particular scene, just like other types of films.

These recording methods are normally built into the game or virtual world; these types of environments allow participants to record the action as a matter of course. This means that recording machinima films is relatively cheap and easy compared with more traditional types of filming.

Characters and props

Films often use, without alteration, various aspects of the game or virtual world in which they are shot: location; scenery, characters, and other types of materials. However, a lot of the environments used – particularly the games – include official level editors. Originally intended by the game creators to allow players to create their own game levels, machinima creators use level editors to create the sets for their films.

Some machinima and game enthusiasts have created their own game/environment editors. These editors generally do not alter the game/environment, simply creating files compatible with the game/environment. However, some editors are patches or mods to the game/environment – a patch modifies the actual game/environment code itself; a mod is generally a modification to the game/environment in a way permitted by the game/environment itself.

Machinima and the law

For those familiar with copyright law, this article will have rung a few alarm bells. The legal issues arising from machinima film-making techniques are, from a copyright perspective, so numerous that they would probably make for a good dissertation. In addition, in any discussion of machinima legal issues, contract law will rear its head. At the core of these issues is the fact that film makers are using someone else’s IP-rich environment to make their films. I will briefly discuss the main points below.

Firstly, the use of materials in the game or environment. These materials are likely to be copyright works and owned by the business behind the game/environment in question. Therefore, using these materials in a film without permission is likely to be copyright infringement.

Next, the use of the game or environment to produce a film. This is an activity that may well be prohibited by the terms and conditions that the film makers will have accepted before being able to use the game or environment; typically through a click-wrap licence of the kind that Vanessa de Froberville discussed in the December 07/January 08 issue of this magazine.

For some game/environments, these problems have, to an extent, been resolved by open-mindedness and commercial pragmatism. For example, Microsoft’s Game Content Usage Rules,[2] issued in August 2007, sets out ways in which Microsoft content can be legitimately used in creative works such as machinima. Aspects of the Rules are ambiguous, the ‘non-offensive’ rule being one aspect. For some films, this ambiguity means that further permissions should be sought from content owners before a film is finalised. Also, in no event may a film be commercially released (as opposed to simply being posted on a Web site) without getting clearance from Microsoft. However, for makers of films of the ‘non-offensive’ variety that are not destined for commercial release, and where audio from the game is not used, the Rules provide a way to make lawful films. Overall, the Rules have been welcomed by machinima creators.

Another example of commercial pragmatism is the ‘Letter to Machinimators’ [3] issued by Blizzard Entertainment, creators of the popular game World of Warcraft. This states that Blizzard ‘strongly supports’ those that produce machimima, and sets out conditions of usage of World of Warcraft and in-game materials. Like the Microsoft Rules, Blizzard restricts usage to the non-commercial. That aside, the Letter’s conditions are much less restrictive than those from Microsoft, meaning that machinima makers don’t have to consider things like whether their film is ‘offensive’.

Gestures such as those from Microsoft and Blizzard do not resolve all legal issues associated with making machinima films. For one thing, there is still the issue of the film ‘actors’. The actors in machinima films have arguably given implied permission to be included in those films and for the films to be published on the Web; if you have volunteered to act in a machinima film, you are so far down the rabbit-hole that it’s implausible that you will be ignorant of how such films are made or where they are shown. Reliance on implied rights is not however a solid foundation, although a regular source of work for lawyers. Film makers are therefore best advised to get express permission from their actors, and certainly before any attempt to commercialise the film is made.

All of the above issues and question marks lead to the inescapable conclusion that the film maker who wants to release his film commercially is not going to be able to avoid undergoing a full rights clearance exercise; film funders insist on rights clearances as a matter of course. A number of machinima films have been commercially released to date, demonstrating that such clearance exercises can be successfully completed.

Whilst legal issues with machinima films are not going to disappear, machinima offers a cheap and high-tech way for film makers to learn their art, and a number of paths to making lawful films.

Alex Newson is a Senior Solicitor in the Intellectual Property and Technology team at Freeth Cartwright LLP: alex.newson@freethcartwright.co.uk