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well im actually not selling anything, the games are all available to embed freely to myspace, blogs or your website.
so i feel comfortable about that bit, since im sure the most popular gaming sites arent offering any money to anyone to use them themselves, also there is a fair use defence that can be used, and that is that you honestly believe that what your doing doesnt violate fair use, i searched up the content i displaed in wikipedia that described the use of video game images and screenshots and placed it in the legal section of my site, i feel that section defines defines fair use clear enough that i would be ok, considering what ive done doesnt impede the original copyright owners ability to generate money in anyway, there is more in that secion on website.
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Ok, I wasn't sure if you were selling or not, but it really doesn't matter. For screenshots of the games themselves, you would generally be OK, provided that you are posting the games with the permission of the creator of the game. As a marketer/reseller/whatever, you do get some latitude under fair use.
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as for the screenshots in the banner, they are definately not reuseable for anyone interested in selling them, i think the resolution of them has been reduced at least 30 percent..
also the use of them is very limited taking only a small portion of the screen and are used in a descriptive sense to display what content maybe found within, ie, the characters displayed inform the user that free flash games with those characters are with the site
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This is like saying that you sell Pepsi, but putting the Coke logo in all your ads because it looks nicer and sells better, and anyway, you reduced the size by 30%. In order to qualify as "fair use", the first requirement you must meet is that the image is being used for descriptive purposes. All other considerations such as size, resolution, resellability, etc are secondary.
Your site does not have any of the games depicted in your logo. Therefore, you can not claim "fair use" regardless of any changes you have made to the actual image. You are using the copyrighted image to associate yourself with the copyright holder, when no such relationship exists. The exceptions of fair use can be demonstrated by a few examples: You are writing a review, so you include screenshots or images of the characters; You are selling the game, so you include promotional or in game images to attract attention to your selling of the game; You are writing an article about an older game for an encyclopedia or other publication, so you include images of the game and characters in the article. I can't see how your site would pass this test.
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most of the top flash game sites supply the embed code to these games freely, so whats the go?
are they all in violation, should they all be sued, for every gif banner and game screenshot, let alone their games
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take it all down ?
lol, im just saying that my site does nothing that others do, accept try to address the consideration of fair use itself, seamingly no others even bother, i hope that i can feel more comfortable with my site if it gets more visitors and attention,
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Just because everyone else is doing something wrong (many such sites are outside the US jurisdiction) does not mean you should too.
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do you think if it came to it, that screenshot images of the popular characters found in the FREE flash games would be considered more appropriate in terms of free use,
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Yes. The images you show must reflect the nature of the products you are actually providing.
And again, there is another problem that you may encounter with the games themselves. For example, there is a console game called Asteroids. This game is very well known. You have a Flash game on your site which has the same name, same art style, and same gameplay. The only difference is the background programming. This is considered an emulation, and is a violation of copyright as the gameplay and graphic style, as well as the name, are considered copyrights and intellectual property. There were numerous cases in the late nineties where video game companies went after developers that made emulations of games for PDAs, and were successful in quashing those applications.