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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Mattsworknameanother07/28/2015 - 9:16pm
Mattsworknameyou HAVE TO click on it. So they get the click revenue weather you like what it says or not. as such, the targeting of advertisers most likely seemed like a good course of action to those who wanted to hold those media groups accountable for one reason07/28/2015 - 9:16pm
MattsworknameBut, when you look at online media, it's completely different, with far more options, but far few ways to address issues that the consumers may have. In tv, you don't like what they show, you don't watch. But in order to see if you like something online07/28/2015 - 9:12pm
MattsworknameIn tv, and radio, ratings are how it works. your ratings determine how well you do and how much money you an charge.07/28/2015 - 9:02pm
Mattsworknameexpect to do so without someone wanting to hold you to task for it07/28/2015 - 9:00pm
MattsworknameMecha: I don't think anyone was asking for Editoral changes, what they wanted was to show those media groups that if they were gonna bash there own audiance, the audiance was not gonna take it sitting down. you can write what you want, but you can't07/28/2015 - 8:56pm
MattsworknameAndrew, Im asking as a practical question, Have gamers, as a group, ever asked for a game, or other item, to be banned. Im trying to see if theres any cases anyone else remembers cause I cant find or remember any.07/28/2015 - 8:55pm
Andrew EisenAs mentioned, Gamasutra isn't a gaming site, it's a game industry site. I don't feel it's changed its focus at all. Also, I don't get the sense that the majority of the people who took issue with that one opinion piece were regular readers anyway.07/28/2015 - 8:43pm
MattsworknameDitto kotaku, Gawker, VOX, Polygon, ETC07/28/2015 - 8:41pm
MechaTama31So, between pulling a game from one chain of stores, and forcing editorial changes to a media source, only one of them strikes you as being on the edge of censorship, and it's the game one?07/28/2015 - 8:41pm
Andrew EisenHave gamers ever tried to ban a product? Can you be more specific? I'm not clear what you're getting at.07/28/2015 - 8:41pm
Mattsworknamethey should have expected some kind of blow back. But I didn't participate in that specific action07/28/2015 - 8:41pm
MattsworknameAndrew Youd have to ask others about that, I actualyl didn't have much beef with them till last year, so I can't speak to there history. I simply feel that gamesutra chose politics over gaming and chose to make enimies of it's prime audiance. For that,07/28/2015 - 8:40pm
Andrew EisenI'm still not clear on how Gamasutra was lacking in accountability or what it was lacking in accountability for.07/28/2015 - 8:38pm
MattsworknameAndrew: You and I agree on most of that. I don't diagree that there should ahve been other actions taken. Now, I do want to point something out, casue Im not sure if it's happened. Have gamers ever tried to have a product banned?07/28/2015 - 8:37pm
Mattsworknameimproperly. Neither is good, but one is on the edge of censorship to me, while the other is demanding some level of accountability from public media provider. but thats just my view point07/28/2015 - 8:36pm
MattsworknameEZK: You can treat it as bullying or what not, As I've pointed out, I didn't like either practice, I made that clear. But I do hold some different between trying to pull a product from the shelves, and calling out a media outlet that you feel has acted07/28/2015 - 8:35pm
E. Zachary KnightMatt, So you feel confident enough to make the call that petitioning target to remove GTAV is "bullying and threatening" but not confident enough to make the call on Intel/Gamasutra. Finding it hard to take your gripes seriously.07/28/2015 - 8:27pm
Andrew EisenAs for gamers holding media sites accountable? If you mean, how to respond to opinion pieces you disagree with, yes, there are tons of more appropriate means.07/28/2015 - 8:27pm
Andrew EisenAgain, no one likes being lumped in with the bad apples. Gamers or feminists so lets all strive not to do that, yes? Could the petitioners gone about it a better way? Yes, it could have been more factual in its petition, for starters.07/28/2015 - 8:25pm
 

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