I have a game I would like to create based on an existing copyrighted property.  That's normally not a wise idea, but if I obtain an official licence to produce a derivative work on that property, will the game be acceptable as a XNA Community game?

I'm guessing if you are, you should somehow show that in your game. Not just some note but something like how games show what engine they are using. I only say this because if you do have permission and peer reviewers don't know that, then it will damage your ability to be accepted. That' s my opinion. There are probably other methods (actually I know there are) but that's the only way for you to let peers easily know that you have permission. Hopefully if you do use a copyrighted material and you have it in credits...I hope that peers be wary of that.

Yes, any content that you are authorized to use, and that passes the content rules (no hate speech, etc), is acceptable.

You may want to add text to your initial credits screen saying something like "Bananas in Pyjamas likenesses used by permission from ABC Australia" to make it clear you have such permission.

Also it would be wise to place a link to a scanned copy of the agreement in the description text on your game's page so that reviewers can click it and view the actual agreement that grants rights. Anyone can say "Content XYZ used with permission from Company ABC" in their game, so in my mind you have to actually show the reviewers your license/contract.

Thank you for the thoughtful responses.

Nick Gravelyn:

Also it would be wise to place a link to a scanned copy of the agreement in the description text on your game's page so that reviewers can click it and view the actual agreement that grants rights. Anyone can say "Content XYZ used with permission from Company ABC" in their game, so in my mind you have to actually show the reviewers your license/contract.

I don't know, but I don't think this advice really works. I see several issues with this:

• This would mean that you are asking reviewers to also be lawyers, i.e. to interpret the licensing agreement (and those tend to be very wordy!)
• The license agreement may not even be in English. Or the other way round, the reviewer may not be a native English speaker and the license is in English. So are you asking reviewers to also translate it to verify its validity?
• The submitter of the game may not even be allowed to publish the agreement (could be a non-disclosure clause in it).
• And last but not least: If anyone really is so gutsy (or rather: stupid) and uses obviously copyrighted material, and adds a fake "Used by permission" message to the game screen (i.e. lies about this), then what would be stopping that person to also make up a faked license text, print it out, then scan it and post a link to it, so that it looks nicely legit?

Or from a different point of view: What you are saying is, that if a game contains copyrighted material, and the submitter says "used by permission", that reviewers should then "research" if that is really true, i.e. if that statement is not a lie. The "research" in this case would require the reviewers to actually read the license agreement and make a decision if all the legal language in it really grants the right to use the material, or if it all is just a fake smoke screen.
But if this is something that you think reviewers should do, then why stop there? Why not also require them to follow up and check if the license is not maybe faked alltogether? I.e. research a bit deeper, like call the copyright holder and ask if the license is legit?
And what about games that do not use any obviously copyrighted material (without a "used by permission" attribution)? Couldn't it be that they are still using such material, but that it is only from a more obscure source so that the average reviewer doesn't recognize it as copyrighted on the spot? So the submitter would equally be "lying" about this, by not mentioning that the game includes copyrighted material at all. Should the reviewer then also "research" this, to see if anything that is used in the game may be copyrighted? Does this mean that as a reviewer we have to do a Google picture search on every sprite, image and texture in a submitted game? Is this enough? Couldn't the picture be stolen from a source that Google doesn't know about? And what about music? Or sound samples? Story text? Character names?

OK, maybe I'm getting a bit carried away here ;-) as I'm illustrating my point: At some point the reviewers simply have to start trusting the submitters: If the submitter says "You might notice some copyrighted material in my game, but be aware that this is used by permission of the copyright holder", then who am I (or any other reviewer, if it comes to that) to call this submitter a liar?

If it later turns out that this actually was a lie, then the submitter will be the one who will get the problems (in a legal sense). The reviewer, who was deliberatly lied to, can not be faulted.

There are a myriad methods of how a submitter can knowingly go against the submission rules (or even break applicable law) without there ever being a chance for the reviewers to catch him at it, i.e. by outrightly lying to the reviewers and/or hiding forbidden content in a game in such a way that the reviewers can't find it, even if they play through the whole game, but still make it appear once the game is available on XBLCG.

But I guess the lawyers at Microsoft (or at the copyright holder) are only waiting for the poor sod who tries this. He could just as well sell his home and car and all other belongings right away and wire the money to Microsoft/the copyright holder...

Doc

Spyn Doctor:

[well written, but wordy post removed for brevity :)]

I understand that reviewers are not lawyers nor am I implying they should be. At the core, all my idea does is add another layer onto things. My main point being that anyone can, in five lines or less code, put a piece of text up claiming they have permission. It's a lot harder to fake a legal document what with it requiring signatures and all. Posting a link to a scanned version of a signed document between parties gives a much better proof that you have permission.

I'm also not implying that reviewers should read the agreement completely and determine if the game is within bounds of the agreement. As far as I'm concerned if you went through the trouble of getting a legal agreement drawn up, you are likely going to follow it. If not, then the original copyright holders can deal with it at a later point.

Also keep in mind that this is just to pass peer review. Copyright holders can, at any time, request that Microsoft remove a game violating their property. Therefore if the license was faked or the content was used inappropriately, the owners can still rectify the situation. All this is for is to make sure that peer reviewers don't reject the game for any obvious copyright violation.

Nick Gravelyn:

All this is for is to make sure that peer reviewers don't reject the game for any obvious copyright violation.

Well, what I meant was, that it shouldn't be necessary to show a scanned version of the contract to reviewers, just so that they believe you. If someone uses copyrighted material in a game but also states clearly (and at a location where a reviewer can't miss it), that he has permission to do so, then there should be no need to give further proof for this statement. A reviewer should simply accept this statement and move on.

If a reviewer rejects a game as "using copyrighted material" in spite of the fact that there was a clear note that says it was used by permission, then in my eyes that reviewer is misusing his "reviewing power". This would be a rejection without grounds in my eyes (and wasn't it so, that a reviewer who does a rejection without grounds would be penalized for it?).

Doc

I tend to agree with a Due Dilligence intepretation of the situation.  The developer should give credit where credit is due, state that the property is used under licence, and make the licence as available as possible to reviewers.  If that is the case, the reviewer can't be asked to do much more and would be free of any liability.  Microsoft may want to do the full checkout, which makes sense since one employee would check it out once for the entire corp.  And finally, the game is always one cease and desist away from getting pulled.

If we wish to keep talking on this subject, I might want to refocus on a different question:  How would paid royalties be handled in the payout process?  How configurable is the cash flow routing scheme?  Can a percentage be applied to one account and the remainder sent to Microsoft?

If that is the case, I would be very clear in the licencing contract that your portion is a percentage of the amount either before or after Microsoft takes it's cut.

Microsoft pay the game author and noone else. Right now this must be a single person which means that if you have a team then its up to you to make the legal arrangements for distribution. So for copyright/licensed stuff its also up to you to have a legal agreement with the person you licensed the content from and tis up to you how to pay and prove things like sales - MS isn't going to have any part of it.

anyone can, in five lines or less code, put a piece of text up claiming they have permission

Yes, and if they do, they commit fraud and misrepresentation in addition to copyright infringement. Three felonies in five lines of code is not bad :-)

Really, community review is not  about keeping Microsoft's legal ass covered. They have highly paid (and highly skilled) lawyers to do that. The content review should call out clear cases of copyright infringement where it's obviously because of ignorance or stupidity -- using ripped sprites, trademarked names without permission, etc. If there is a disclaimer that trademarks and copyrights are used by permission, that's enough to pass that part of the review.