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.”

5 comments

In Congress, DMCA Reformer Lands Key Subcommittee Chair

January 9, 2009 -

Rep. Rick Boucher (D-VA) has been picked to lead an important Congressional subcommittee, and that's good news for game consumers.

As MediaPost reports, Boucher will chair the House Energy and Commerce Subcommittee on Telecommunications and the Internet. From MediaPost:

As a longtime proponent of consumers' rights to lawfully copy films, books and other material, Boucher is considered a likely opponent of any entertainment industry efforts to restrict the Web. Among other measures, he is likely to oppose attempts to require Internet service providers to filter networks for pirated material.

Boucher also has tried to revamp the Digital Millennium Copyright Act to make it more consumer-friendly... Boucher's bill would have specified that the anti-circumvention rules do not apply in certain situations, such as when the purpose of getting around the restrictions was to access a work in order to criticize it or report about it...

In 2002, Boucher authored a strident column extolling the benefits of fair use... Boucher also supports net neutrality initiatives, as does President-elect Barack Obama.

In 2007 the Entertainment Consumers Association endorsed Rep. Boucher's fair use legislation, although the bill ultimately failed to pass.

Full Disclosure Dept: The ECA is the parent company of GamePolitics

3 comments

Spore + Porn = Sporn

July 31, 2008 -

Will Wright's Spore, due for a September 7th release, is one of most anticipated PC titles ever.

But, as CNN reports, some users of the Creature Creator utility, released last month, have built animals which are apparently intent on breeding. Or, at least coupling.

...Buried among the more wholesome attempts [at Spore creature creation] were two-legged dancing testicles, a "giant breast monster" and a four-legged, "phallic fornication machine," for starters...

 

For EA, the developer of "Spore," it's the downside to tapping into the booming user-generated content arena, which has made sites like YouTube, Flickr, MySpace, Facebook and Second Life so popular... Many of the popular user-generated content sites have faced similar challenges in trying to control obscene material...

 

The creatures are not just static. Users can create animated scenarios for the characters to engage in, some of which include sexually graphic acts.

When EA got word of the "Sporn" creations, it began working with YouTube to pull them down. Spore executive producer Lucy Bradshaw told CNN:

Whether it's modeling clay, dolls or crayons, a small number of people can be counted on to use it for something vulgar.

CNN also spoke to the "Spornmaster," a 37-year-old man who has created a number of reproductively equipped Sporn creatures:

I admit it is silly and juvenile, but I don't think there's anything perverted, vile or awful about it. If people find it offensive, they can simply not search for it online. No one is forcing anyone to see this content.

One Spore fan told CNN:

I consider this very similar to child pornography, at least to the extent of distributing the material to children.

GP: Buzzfeed has additional NSFW links...

71 comments

ESA Annual Report: Game Industry Policy to "Push Back" Against Fair Use

July 31, 2008 -

The ESA's 2008 Annual Report indicates that the video game industry hopes to uphold the controversial Digital Millenium Copyright Act (DMCA) against critics who claim that it restricts Fair Use of copyrighted material.

Based on the following passage from the report, the industry's position seems to be that gamers can create user-generated content only to the extent that in-game tools allow them to do so:

The interplay Between Fair Use and Digital Rights Management User generated content (UGC) is a high-profile policy issue in the copyright community, sparked by the phenomenal success of social networking sites like YouTube.

 

Influential policy papers from the U.K. IP Office and the Organisation for Economic Cooperation and Development (OECD) cite UGC as a tremendous social benefit of the Internet and call upon policymakers to tweak current legal regimes to better accommodate UGC. This issue has captured the imagination of critics of the current U.S. copyright system, who argue that Digital Rights Management restrictions confound legitimate fair use.

 

ESA IP Policy staff is bolstering its ability to push back against this assertion. In discussions with domestic and foreign IP officials and the OECD, ESA emphasized the rich and varied UGC-features currently incorporated into DRM-protected games.
 

 

 
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MaskedPixelantehttp://www.joystiq.com/2014/08/27/rockstar-lohans-gta-5-lawsuit-just-jonas-ing-for-publicity/ Rockstar releases the biggest "no duh" statement in the universe.08/27/2014 - 8:07am
MaskedPixelanteI'm just saying, they're giving us an F-Zero kart and an F-Zero track, but their crossover representative is Link?08/27/2014 - 8:00am
ZenMasked, not really sure what your are talking about lol. They will be giving a total of 6 characters, 8 vehicles, and 16 tracks...plus the Yoshi and Shy Guy sets if you get both packs. Not bad for about the price of a single CoD map pack lol.08/27/2014 - 7:02am
MaskedPixelanteSee the flaw here. Blue Falcon car, F-Zero themed track, and Link as a playable character.08/27/2014 - 6:46am
IanCNext Level Games would like to say hi.08/27/2014 - 6:32am
Uncharted NEShttp://kotaku.com/zelda-f-zero-coming-to-mario-kart-8-162715073008/26/2014 - 11:17pm
Uncharted NESAlso $8 for each or $12 for both.08/26/2014 - 11:16pm
Uncharted NESZelda, Animal Crossing Coming To Mario Kart 8.08/26/2014 - 11:15pm
Andrew EisenNintendo has worked with plenty of western or non-Japan devs. It partners more often with devs in its own country but I wouldn't say it doesn't like western devs.08/26/2014 - 7:36pm
Matthew WilsonOr... give it to the studio that just formed from the old Darksiders guys. yeah I know outside of Retro they do not like working with western devs.08/26/2014 - 6:46pm
MechaTama31They should have just handed the Zelda reins to the team responsible for Okami, because they out-Zelda-ed Zelda.08/26/2014 - 6:08pm
Uncharted NESI miss Nintendo-Capcom Zelda games. ALTTP on the GBA was my first real time really playing through that game. And you know what, it was fun. :P08/26/2014 - 5:42pm
IanC3 and a half amazing games, since Capcom did the A Link to the Past port, and the Four Swords game that was on the cart. So thats 4 games then, id guess.08/26/2014 - 5:03pm
MaskedPixelanteDepends on who's teaming up with what. Zelda plus Capcom gave us three amazing games. Zelda plus Phillips gave us Youtube Poop.08/26/2014 - 3:25pm
E. Zachary KnightNintendo has had a fairly decent track record with teaming up with external development houses to make games based on their IP, at least recently. I hope they keep it up.08/26/2014 - 3:14pm
IanCThe idea of the Tekken team making a Pokémon fighting game is A: funny and B: clever.08/26/2014 - 2:39pm
IanCBlizzard took the Act 4 ending cut scene out of Diablo 3 Ultimate Evil Edition. So if you want to see the final cut scene from the base game better go look on youtube or something.08/26/2014 - 2:38pm
Andrew EisenI hope Magikarp is playable!08/26/2014 - 11:14am
MaskedPixelantehttp://www.joystiq.com/2014/08/26/psa-psn-gets-knocked-down-again/ Hey, guess what happened again.08/26/2014 - 9:51am
MaskedPixelantehttp://www.joystiq.com/2014/08/26/tekken-style-pokemon-fighter-unveiled-for-arcades-in-2015/ Continuing Nintendo's plan of letting other devs take a stab at their IPs, NB is doing a Pokemon fighting game based on Tekken.08/26/2014 - 9:41am
 

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