IP Litigator Scrutinizes Videogame Art

December 3, 2009 -

Where does art inspired by videogames fall under the fair use doctrine? A U.S. Intellectual Property lawyer takes a look at just such a topic in an interesting entry on his blog.

Ben Manevitz centers his article on three pieces of art from Brock Davis, which show interpreted scenes from Dig Dug, Donkey Kong and Missile Command.

The four factors (for the U.S.) for determining fair use are:

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 workas a whole;
4. the effect of the use upon the potential market for or value of the copyrighted work.

Manevitz argues that the art in question meets the criteria of points 1 and 4:

The fair use analysis is actually fairly straightforward. You've got a transformative use that will have no impact on the market for the games, or even the potential derivative market for the games. That's factors one and four in favor of fair use.

The author claims that the works do not meet the second factor however:

Admittedly, the game screen is a creative work, which puts factor 2 in the not-fair-use column and it could be argued that the amount taken is substantial - it would depend on the determination of what, exactly, constituted the work; is it the game overall or individual screens.

Manevitz goes on to examine possible trademark implications:

… Atari might be able to argue that a consumer seeing the paintings might be confused as to the source or - in this case the stronger argument - sponsorship of the paintings.

He concludes that game makers might be able to make an “objectively reasonable trademark infringement case against the artist,” before noting that the “saving grace” for the artist might be “the practical factors militating against the manufacturer's bringing suit, to wit, the negative publicity, the paucity of available damages, the relative age (value) of the marks allegedly infringed, etc.”


Comments

Re: IP Litigator Scrutinizes Videogame Art

SO basically this article is saying that the game art is bad in some way or what? B/c digg dugg is a kid game!!!! Lol & a remake & Donkey Kong!?!?!? OMG!!!! Again this lawyer is narrow-minded & misinformed. Yeah lets hate against a fun loving money & ape that have been around since the arcade days!!!!! He is sooooo retarded.

 

 

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Re: IP Litigator Scrutinizes Videogame Art

You're standing here. The boat, on the other hand, is waaaaaay over there.

Re: IP Litigator Scrutinizes Videogame Art

Giving that the video game parody section of Newgrounds is still up, I'd say things are o kright now.

Re: IP Litigator Scrutinizes Videogame Art

Ok...........so is this saying that games are copyrighted images and can be easily controled under the DMCA,ect or that games can easily use copyrighted images in them without fear of ambulance chasers ?


Until lobbying is a hanging offense I choose anarchy! Stop supporting big media and furthering the criminalization of consumers!! http://zippydsmlee.wordpress.com/


Copyright infringement is nothing more than civil disobedience to a bad set of laws. Let's renegotiate them.

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Re: IP Litigator Scrutinizes Videogame Art

Neither, but you have too much tunnel-vision to see what he's on about.

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WymorenceOh sweet god, Kung Fury is freaking awesome...05/28/2015 - 10:03pm
E. Zachary KnightWonder, I know you can revise content and resubmit it, but I can't findany information about a formal appeals process.05/28/2015 - 7:27pm
Wonderkarpever wonder if there's an appeals process for AO?05/28/2015 - 6:55pm
Matthew WilsonDanny and Andy play the first couple of levels of the upcoming Hatred http://www.gamespot.com/videos/hatred-gamespot-plays/2300-6425016/ imho it does not look like it should be AO.05/28/2015 - 5:57pm
Andrew EisenHey, remember Kung Fury? That short film that was funded via Kickstarter a few years ago? You can watch it now. I suggest you do. It's fun! https://www.youtube.com/watch?v=bS5P_LAqiVg05/28/2015 - 5:14pm
Goth_SkunkOriginally, yes. Some content was cut out in order to reduce its ratign from AO down to M, but PC users could work around that an unlock the full content by means of a patch. Which is what I did. :D05/28/2015 - 3:56pm
Andrew EisenKarp - Yes, for strong sexual content. Although the recent remaster contains all that content and was rated M.05/28/2015 - 3:54pm
Andrew EisenDepends on if you consider Hatred misrated. I haven't played the game or seen the ESRB's rating summary so I'm undecided.05/28/2015 - 3:53pm
WonderkarpDidnt Fahrenheit have an AO?05/28/2015 - 3:52pm
Matthew Wilson@AE that is why I said it seems more moral panic to me.05/28/2015 - 3:51pm
Andrew EisenMatthew - From what I've seen (just the trailers) the game is nowhere near as gory as many, many other games. But again, I'm guessing the AO rating comes from theme and tone rather than outright gore.05/28/2015 - 3:50pm
Andrew EisenKarp - It didn't show penetration or nudity.05/28/2015 - 3:50pm
WonderkarpI'd say Mortal Kombat X has more Gore and Violence than Hatred.05/28/2015 - 3:50pm
Matthew Wilsonwhat I mean by worse in this case its not more gory/violent than others.05/28/2015 - 3:48pm
WonderkarpI forget....did Hot Coffee actually show Penetration?05/28/2015 - 3:48pm
Andrew EisenKarp - The Skyrim mods are external mods. The Hot Coffee mod unlocked content on the disc. Big difference. Still, the content that was unlocked was still perfectly in line with an M rating in my opinion.05/28/2015 - 3:47pm
Andrew EisenThemes are factored into ratings, not just mechanics. Still waiting for ESRB's rating summary. Very curious to see what it has to say.05/28/2015 - 3:46pm
Matthew WilsonHatred is a top down shooter though, and isnt any worse than other top down shooters?05/28/2015 - 3:45pm
Wonderkarpyeah, San Andreases rerating was ridiculous. Why not rerate Skyrim with all its crazy sex mods out there? But yeah, ESRB is good as policing itself. 05/28/2015 - 3:45pm
Andrew EisenManhunt 2 and Hatred though? Eh, there's an argument to be made for the higher rating.05/28/2015 - 3:43pm
 

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