Yes, such a site can be created without infringing copyright
Facts about the game are facts.They are not protected by copyright. Criticism of, and comment about the game, is an activity protected by the US First Amendment. Making such comments is very likely to be fair use under US copyright law....
As an example: Minecraft Wiki had to change logos used on main page, because it is not official. Fallen London (a text-based browser game) wiki posts only small excerpts from descriptions for consequences of player actions (and only titles without narrative for paid content) to not infringe on copyright.
@justhalf If you're only stating facts and not distributing copyrighted materials, then it doesn't matter whether you're earning money. If you are using copyrighted materials on the grounds of "fair use", then the commercial nature of your site would be one of the factors weighed when evaluating your fair use defense, if push comes to shove.
"If a wiki uses excessive quotes from game dialog, or uses the game's logo without permission, that might be copyright infringement.", huh, practically all wikis in Fandom have ALL the in-game dialogs, images, and, in some cases, the sounds in the wiki. But given the ubiquity of this, I suppose this is acceptable?
@wizzwizz4 it was a semi-official wiki before Microsoft aquisition. The change in question came after Fandom merge. Probably because nobody trust the Fandom anymore.
@justhalf: Legally: There is no provision in title 17 of the US code that even vaguely suggests such extensive verbatim copying might be acceptable. Fair use only goes so far. In practice: Nobody is going to read the wiki as a substitute for buying the game, so developers see no value in trying to police this sort of thing.
@Kevin "Fair use only goes so far." That is not really correct. There is no fixed upper limit on the amount that can be copied under fair use. In the case of The Wind Done Gone (Suntrust) many entire scenes were copied verbatim, but fair use was found. There have been many cases where an entire work, such as a painting, or a film, was copied, and fair use was found, when the copying was done in connection with commentary. Extensive copying of gs\ame elements in connection with commentary on the game might (or might not) be found to be fair use. There is no telling without a court case.
@DavidSiegel: It's too bad the concept of "fair use" works out just well enough in practice that there's no perceived need for legislative clarification to distinguish between concepts of (1) usage, such as parody, to which the original creator would have no right to object; (2) usage to which the original creator might reasonably be presumed not to object, and for which the original creator would presumably prefer not to be bothered with a permission request. Someone who produces a work of the second form and takes it down promptly if the copyright holder does object...
...should not be subject to liability unless their presumption is found to be unreasonable. Such a scenario works out better for creators of original works than one in which everyone would have to request permission for everything, especially since a creator who neither grants nor refuses permission would have much more freedom to object to an undesired use, than someone who had issued any sort of permission to anyone would have to revoke it. Too bad there's no legal way of handling such concepts without abusing the notion of "fair use".
@supercat The flexibility of "fair use" is n intentional legislative choice, based on the case law under the old US copyright law of 1900. There is no presumption that a copyright owner will not object to some kinds of uses. Rather the law says that any use which qualifies as fair use ids a social benefit, and the owner has no right to object. A fair use is not infringement. Infringement liability is not avoided even if an infringer takes down an infringing copy promptly. Permission not granted must be deemed refused, ther is no middle ground. [...]
[...] @supercat This is not the place for discussing what changes to the law might be improvements. For the moment the law is as it is, and does not make the distinction between the types of works you seem to be suggesting. Owners may object where others find objections to uses reasonable or not, but a person making fair uses may do so regardless of any objections. This is not an abuse of the fair use concept, but an essential part of it.
@DavidSiegel: Is there anything in the wording of the laws that would allow something that would be "fair use" in the absence of objection, and cease to be fair use if the creator of the original content objects, but without any liability if the work is taken down once an objection is voiced? From a practical perspective, fan fiction authors and creators of the original works built upon thereby behave as though there is something in the law that says that, but does the law itself recognize such a thing?
@supercat No, there is not. The presence or absence of an objection by the copyright holder (who may or may not be the creator) is irrelevant in US law, except that if the holder does not object, there will be no suit and thus no occasion for a court to rule on whether a use is a fair use. So in discussing the law of fair use, an objection is always assumed. Except in the case of sculpture where special laws apply, the creator has no legal right to object if s/he is not the holder. That would be different in the EU and elsewhere. (Moral rights.)
@supercat Some creators or holders chose to ignore fan fiction when they might sue. Some even license it. Some issue takedowns in some cases, some in almost all. Few proceed to sue if a takedown is complied with, but they lawfully could. The choice is entirely that of the copyright holder whether to sue. In many cases a suit might cost more than plausible damages. In some cases a fair use finding is likely enough to make a suit risky.
Wouldn't it be almost impossible to show damages for a fan wiki, considering that it cannot be a substitute for the game and may in fact even increase sales by serving as advertising?
@Someone If the copyright was properly registered, as is highly likely for a commercial game, statutory damages would be available. These do not require any proof of actual financial damages. Statutory damages can be in any mount between $750 and $150,000 per work infringed, although willful infringement must be proved for damages over $30,000. Also, a creator/holder who claims the rep of the work has been damaged by a low-quality fan fiction work, might be able to establish sizable damages. But statutory damages would be the likely remedy in such cases.
@DavidSiegel: If the creator of a work posts a video in which he says that he enjoys reading fan fiction that people have posted on line, would such a video be regarded as granting a sufficiently strong free public license to others wishing to write and post such works that a holding company which later acquires rights to the original works would be unable to sue fan fiction authors for statutory damages?
@supercat I don't know of any case in which such a statement by an author was later claimed to be a license. My guess is that it would not be treated as a license without explicit words granting permission. Copyright transfers must be in writing, but licenses need not be. Moreover, a license may be revocable unless it is explicitly stated to be permanent, (or of fixed duration) and all licenses under US law are revocable during the 5-year period starting 35 year after creation (or in some cases after publication) of a work. An implied license would probably be revocable.
@DavidSiegel: The Wind Done Gone was a parody; it used those scenes to conjure up the image of the original for the purposes of criticism and commentary. Wikis are not (usually) parodies - they copy dialog not to criticize or analyze the original, but merely to save the reader the trouble of (re)playing the game (which would otherwise take hours in some cases). I have never seen a wiki with substantive commentary or analysis beyond simply describing the events of the game. While this is a useful public service, it is pretty obviously not transformative in any meaningful sense.
@Kevin No. wikis of the sort described in the question are not parodies. But the are, or at least can be tools of commentary and criticism, and are no less entitled to extensive quotation in service of those purposes than TWDG was. If quotes are merely descriptive, then the case for fair use may be weaker, but that is on a case-by-case basis.
Discussion on answer by David Siegel:…
Discussion on answer by David Siegel:…