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Copyright and Custom Content in the Sims 2

Important!
Who owns your custom content?
So if I create new content and share it on my free site, I retain the copyright?
If I create new content and share it on the exchange, do I retain the copyright?
If I create new content and share it on my free site, but then someone downloads it and puts it on the exchange, do I retain copyright?
If I create new content and share it on my pay site, do I retain the copyright?
If someone has broken the EULA, can I redistribute their work without their permission?
How new does the new content need to be for me to claim copyright?
If I take my content off the exchange again, can I reclaim my copyright?
Can EA take my work and sell it without my permission?
Can another site owner take my content and redistribute it without permission?
Can another person recolour/remesh my content without permission?


Important!

I am not a lawyer. I've never studied any law, let alone the specifics of international copyright law. I'm just providing my interpretation of the various documents produced by EA, and my understanding of how those documents fit in with copyright laws. This should not be used in place of specific legal counsel. It aims only to provide information and a particular interpretation of the laws involved. I am open to hearing from people with alternative interpretations, so long as such interpretations have some sort of textual or legal backing. In other words, if your argument can be summed up as "it's this way because [I said so|Someone else said so|That's what I want it to be|I smell like a wet yak]" then I don't want to hear it.

With that said, hopefully this will be of some use to those people who are thoroughly confused by all the different points of view that are expressed with very little evidence to support them. If you believe a correction is needed, please feel free to email me directly at echo_eternity84@yahoo.com.

Who owns my custom content?

The short answer is "you do". Of course, it's not really quite as simple as that, so here's a bit of background.

EA owns the rights to everything that comes on any of the TS2 disks. Normally, if you were to take their content, modify it without their express permission, then redistribute it, then you would be breaking the law. That is because what you have created is a "derivative work". A derivative work is a piece of work based on someone else's work, which has enough original material in it to differentiate it from the original while still clearly being not being completely new. However, the EA toole EULA states that users are permitted to create derivative works, providing certain conditions are met. If your work meets these conditions then your item is an authorized derivative work, and so you retain copyright over all original content in your item. The conditions you have to meet are as follows:

If your item does not meet these conditions, then it is no longer authorized by the EULA and so you must either gain direct and specific authorization from EA or the copyright for the item will revert to EA.

So if I create new content and share it on my free site, I retain the copyright?

Yes, assuming that it meets all the criteria for authorization in the EULA.

If I create new content and share it on the exchange, do I retain the copyright?

One of the conditions of use in the EA.com Terms and Conditions is that if you upload any content to the site, you grant EA the non-exclusive rights to do pretty much anything they want with it. You still own the copyright on your original content, but you have also given EA those same rights and so you do not have as much control over your creation. EA has made it clear that anything on the exchange can be shared and altered in any way for the exchange, so if you object to this then do not post your work on the exchange.

If I create new content and share it on my free site, but then someone downloads it and puts it on the exchange, do I retain copyright?

Yes you do. It is against EA's terms of use for a user to post content that they do not have copyright for, because if the poster does not hold copyright then they are not permitted to sign that copyright over to EA. Consequently, the above point about placing your items on the exchange does not hold true if someone else places your items on the exchange. Legally you could request that EA remove this content, however it is unlikely you will get the response you want from them on these matters.

If I create new content and share it on my pay site, do I retain the copyright?

Maybe. The EULA states that authorization requires that distribution only takes place on personal, non-commercial sites. If your site is making a profit, then it is not meeting this criterion. The key word there though, is "profit". EA made it clear in the days of the Sims 1 that accepting payment to cover costs associated with sharing content is acceptable, because it does not constitute "profit". (For those unfamiliar with the terminology, profit is whatever remains when you take all the money you have received for something and take away all the costs that were associated with earning that money). That basically means that you may only charge up to the point where you break even. As soon as you start to make a profit, you break the EULA and the work becomes unauthorized. At this point copyright reverts to EA, and can be distributed according to EA's requirements. What constitutes a cost is a bit vague though. As a rule of thumb, if it could be claimed as a work related tax deduction, then it probably counts towards the cost of doing business. Your time does not contribute, but your web hosting does.

If someone has broken the EULA, can I redistribute their work without their permission?

Only if you can legally and conclusively prove that the EULA has been broken. If you plan to use this as a defence for distributing other people's works, then you must be able to prove, legally and conclusively, that the work was not approved by EA. That means that you need to haveat least one of:

In addition to at least one of the above, you would need to provide proof that no other agreement exists between the creator/site owner and EA (ie - a statement from one of these parties stating that no such agreement exists). In all of these cases, if you want to claim a legal grounding, you will need evidence sufficient to constitute proof.

There is a side note to this issue. EA links to many sites which function purely as pay sites, and this could be seen as tacit approval of these sites and their content. This would not stand on its own as legally binding proof of authorization, however it would certainly be strong contributing evidence in favour of pay sites.

How new does the new content need to be for me to claim copyright?

This is a really complicated issue, because no one has ever defined a rule which differentiates a copy from a derivative work. As a vague rule of thumb though, consider if the new work sufficiently is different from the original to justify calling them different items? If you take a Maxis t-shirt and hue shift it by 10%, then that's not really a new or different item, but a hacked and remeshed object doing something completely unlike anything in game is clearly quite a bit different. Unfortunately though, that is a value judgement on my behalf, and value judgements do not hold a lot of water legally. Suffice it to say that the less in common your item has with the item(s) it was based on, the stronger your claim of copyright would be.

If I take my content off the exchange again, can I reclaim my copyright?

Not on that content. Placing something on the exchange signs your copyright to EA for that content. Once you place your content on the exchange, you've given permission to EA and you can't take it back again.

Can EA take my work and sell it without my permission?

Only if you have uploaded to the exchange. Remember, if you've created an authorized derivative, you hold the copyright on it. However, if you've placed it on the exchange then you've given EA permission to do what they want with it, including sell it to someone else.

Can another site owner take my content and redistribute it without permission?

Generally, no. If you hold the copyright then anyone who attempts to make copies of this content without your permission are in breach of copyright. However, once again this only holds true so long as you have not released your content on the exchange. EA has granted users permission to share any custom content on their site. If you put work on the exchange and someone else downloads it and shares it around without asking you, that's perfectly legal. It's just not very nice.

Can another person recolour/remesh my content without permission?

If the content being created is for private use only, then that would almost certainly fall under the requirements of "fair use". As long as the person isn't sharing the content with anyone and is just using it in their own game, then getting permission is not really necessary. However, fair use is going to be a bit of a stretch if the new work is being shared. Under these conditions, the new work would probably constitute a derivative of your work, which means that they would need your authorization for it, just as you require EA's authorization for your derivative works.


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