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Will a monetized video game review blog be protected under fair use?

Santa Fe, NM |

Hi, I'm planning on starting a video game blog in which I would review, preview an post basic info on games, products, events and things like news in the gaming community.

Now my question is: since I am using this for review preview and comment, would this fall under the "fair use" doctrine even if I were to use google adsense and affiliate marketing?

As long as I only show images that are not in original size or are scanned from the actual product and write my own information, would this be protected under fair use or the "de minimis rule"?

Attorney Answers 2


Commentary, critiques, and news are generally protected types of speech, and since you can't comment or critiques something meaningfully without mentioning it and even using parts of it, the types of use you intend sounds like it would not infringe the copyrights of those that own the video games, products, etc.

The 4 fair use factors are:

1) the purpose and character of your use
2) the nature of the copyrighted work
3) the amount and substantiality of the portion taken, and
4) the effect of the use upon the potential market.

The factor you need to be most concerned about is probably the potential market. Because you plan to generate ad revenue, you need to be careful about allowing your use to overlap the market of those whose works you want to use. If, for example, you run ads for some of the products you want to review, or from some of the competitors, then you'd be seen as in the same market and perhaps not meet the fair use standard.

Without knowing more about the type of use you intend, it's difficult to analyze your situation, but bear in mind these factors and consult an intellectual property lawyer in your area to be on the safe side.

Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on, since each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship.

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I think there's some confusion over what body of law controls.

I read your question to mean that you will be writing reviews and providing other information about video games. The copyright to those writings is owned by you (as the author). As long as you're not publishing images of the packaging covers of the games there is no copyright issue here at all. If you are publishing images of the video game packages, then your publication of those copyrighted images does implicate the copyright fair use doctrine -- as already ably discussed.

The other body of law that is certainly implicated, however, is trademark law because the names of the games are protected trademarks. Trademark law has its own fair use defense (which is completely different from the copyright fair use defense already discussed). The trademark fair use defense that applies is the "nominative fair use" defense.

The "nominative fair use" defense applies when the trademark is being used to describe the trademark owner's product. To take advantage of the defense (1) the product in question (the video games) must not be readily identifiable without use of the trademark, (2) only so much of the trademark (the names of the games) may be used as is reasonably necessary to identify the product, and (3) the use must do nothing that would, in conjunction with the mark, suggest sponsorship or endorsement by the trademark holder.

So ... while the first two prongs are easy to satisfy, the third is often quite subjective. In short, do nothing that would lead visitors to your site that the video game manufactures endorse or sponsor your site. Play it safe and have a trademark attorney review the site before it goes live. That attorney can evaluate your use of video game packaging images as well (if you plan on using them).

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