I personally don't think that is enforceable.

Resources? Absolutely. Complete duplication of an ESP/ESM? Yeah, definitely.

A patch to make two mods work together that is literally useless on its own? I find that very hard to defend. I mean, if an author specifically prohibits it, I'd respect that. There are literally hundreds, if not thousands of Oblivion and Skyrim patches that I can guarantee did not consult both authors ahead of time. Especially ones for landscape conflicts.

I just feel this is not where the line should be drawn, but it is a debatable point.

Really? That seems odd to me. Why would you need permission, and what grounds would anyone have to deny permission, if you aren't using any resources from either mod? What am I missing here?

It seems to fall under a "I can say if people can mod my mod" argument. Which while true has always felt like a shaky argument in this context.

I mean, I've seen mod authors say that no one has permission at all to even modify their mod for their own personal, non-distributed, use. Which is completely unenforceable and absurd. Saying you won't provide support for modified versions of your mod is completely valid, of course.

Personally, I would tend to agree with you, or at least I used to, but there have been a few threads on the issue over the years here and in the Oblivion/Morrowind mods forum and the majority view in the threads I have seen has always been that permissions are needed for patches that use mods as masters. The issue is that copywrite protects use and derivative use, and in order to make a patch that uses another mod as a master, you are copying a portion of that mod into your patch, which is a derivative use and hence requires permission.

So, the only way such a patch would be allowed without permission would be if it falls within the "fair use" exception, which is somewhat of a gray area. Under fair use, you can quote small portions of a written work in a review and you copy large portions if you are doing a parody (e.g., Spaceballs copied large portions of Star Wars but Mel Brooks didn't need permission because it was parody). Does "fair use" extend all the way to allowing patches without permission? I don't think there have been any court cases on it, so who knows.

Keep in mind that in virtually any such case, you would not need permission to make or to use such a patch. You would need permission to distribute it, and there's numerous reasons why a mod author might not want to vet patches associated with their mod (that they did not themselves make)

Derivative works under copyright won't qualify as Fair Use.

Yes, patches which modify the contents of other mods require permission from both mod authors as they constitute derived works of both mods.

It's not about using resources. It's about altering the work as presented. It's not a moral or community thing. It's a legal thing.

Technically speaking, you need that permission even for personal use. Nobody in their right mind will ever try to press that though and that's why Bashed Patches are popular instruments for dealing with things like this.

Distribution is where you'll run into problems and every respectable mod hosting site out there will abide by the wishes of all the involved authors.

The mere fact that a use is derivative is not necessarily determinative of whether it's a "fair use". The collage containing a copywrited commercial photograph at issue in Blanch v. Koons, 467 F.3d 244 (2d Cir. 2006-10-26) was a derivative use that qualified as a fair use because it was sufficiently transformative.


There is no bright line test whether a particular use qualifies as a fair use. Courts examine four factors in determining whether a use is a fair use:


1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

2. the nature of the copyrighted work;

3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

4. the effect of the use upon the potential market for or value of the copyrighted work.


These factors leave a lot of room for interpretation in any given case. Given these ambiguities surrounding the doctrine of fair use, and the lack of any court cases involving patches for mods, most reputable mod sites are going to err on the side of caution and require permissions for patches.