On Thu, 21 Sep 2000, Alec A. Burkhardt wrote:
> On Thu, 21 Sep 2000, Lizard wrote:
> > The law allows me to put "Compatible with Bludgeons&Flagons(tm), Trademark
> > used without permission" on the cover of my game. The OGL specifically
> > denies me that right, without a separate agreement with the publishers of
> > Bludgeons&Flagons.
>
> Nothing in the OGL does away with "fair use" as permitted under copyright
> law. Of course, the "fair use" exception to copyright would not permit
> anyone to use material for the activity being discussed here anyway.
> Fair use refers to using portions of copyrighted material for things such
> as commentary, criticism, news reporting, and scholarly reports. It
> doesn't simply mean that you can use a small portion of a work -- you must
> be using it for one of the accepted exceptions.
Well, section 7 of the OGL prevents any use of Product Identity.
Since this is a license unrelated to general copyright law, this does
not allow "fair use" of Product Identity. It also prevent saying
"compatible with" a trademark, which is allowed under trademark law.
Fair Use is designated as "for purposes *such as* criticism,
comment, news reporting, teaching (including multiple copies for classroom
use), scholarship, or research". [from Chapter 1, Sec 107 of US
Copyright law] Note my emphasis on "such as". Fair Use is not limited
at all to the purposes listed there. When it can be applied is determined
by a mix of the 4 criteria given in that section:
(1) the purpose and character of the use, including whether
such use is of a commercial nature or is for nonprofit
educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in
relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value
of the copyrighted work.
Note that commercial use *is* allowed, as shown by cases like
2LiveCrew's version of _Pretty Woman_ and many other cases.
- John Kim
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