from the copyrighting-history dept
When you let ownership and copyright culture fester, breed, and expand, eventually it gets out of control. While that might sound like an obvious sort of thing to say, allowing it to happen produces unexpected but also obvious results. For instance, allowing this to happen creates a culture of fear around what those creating new content can do with existing content. While readers here will be familiar with the importance and practical usage of fair use, caution often causes creators to shy away from that affirmative defense.
For instance, Konami recently announced that the second and third iterations of its Metal Gear Solid franchise are being temporarily pulled down from digital storefronts, as are any digital collections that include those games. Why? Well, it appears that Konami had originally licensed a bunch of historical war footage to use as snippets in those games and those licenses lapsed without being renewed.
The company’s full statement reads:
*** [Important Notification] Temporary removal of METAL GEAR SOLID 2 and METAL GEAR SOLID 3 from digial storefronts (PlayStation®3, Xbox 360, Nintendo 3DS, etc.)
Thank you for playing the METAL GEAR series.
We are currently working on renewing the licenses for select historical archive footage used in-game, therefore, we have made the temporary decision to begin suspending the sale of METAL GEAR SOLID 2, METAL GEAR SOLID 3 and all products that include these games from digital storefronts globally starting from November 8th, 2021.
We sincerely ask for your patience and understanding as we work towards making these products available for purchase once again.
Thank you for your continued support of the METAL GEAR series.
As news of this has gotten around, there are a great many people taking a great deal of pleasure giving Konami a great deal of shit for forgetting to re-license this footage. In fact, it seems many people are looking at this as an example of Konami being careless and disorganized. And to that extent, yeah, it was! But I have a vastly different question.
Why was this historical footage licensed in the first place? Because all of this could have been a non-issue if Konami did what it should have done in the first place: use the footage and rely on fair use in order to do so. Applying the four factors test for fair use — the purpose of use in the new work, the nature of the work used, the amount of the copyrighted work used, and the effect on the market for the work used — seem to lead to one obviously conclusion, which is that this would fall under fair use.
We’re talking about relatively short clips of historical war footage in order to bolster a new artistic work in the form of a video wargame, which is protected speech, with nothing to suggest that someone would view the footage in the video game rather than going and paying to see it elsewhere. That this was ever licensed in the first place is absolute nonsense…
…unless you are steeped in permission culture, of course. Then it makes perfect sense. We’re afraid and so we’ll license this instead of relying on the protections the law actually allows. And if that doesn’t suck, I don’t know what does.