Is this still Fair Use?

[JD]

A friend of mine is working on his mod project with a few other people, and he was rather suprised when he learned that it's being mentioned in the latest issue of Edge. The thing is - he's actually not that happy about it. First of all, he thinks they should have been credited properly, names and all that. There's a link to the project on ModDB, which is where they got the content from, but that's it. They're not happy about the context either. All people involved in it are working on the game industry, so it's not just a team of 'hobby developers'.

The artwork and the concepts they created were used extensively and fill up a whole page. (See here - and OMG, it's not like the complete mag got scanned). They do think their copyright was violated since they weren't asked for permission at all. It's not like the team intend to sue for millions now, or something along those lines, but they think it's questionable nevertheless.

1. What's your take?

2. If anybody knows someone (at the mag) they could get in touch with about this, send me a PM, please. Thanks. They used the standard contact address given on the website and fired off an email a few days a go, but given the fact that such addresses are bombarded with spam, it seems unlikely that they'll get a quick response.

-Julian

[Kael]

Publicity is good. The magazine is doing their project a favor by doing a writeup of it. Its hard to get coverage that is handled exactly as you want, but if you lay out your project on the internet then you cant be to surprised if others write about it.

Yes, it would have been nice if they would have contacted the team to get their input before publishing the article. But the magazine reports on what is going on in the game industry, your friend is developing in the game industry and posting publically about whats hes doing. The magazine hasn't done anything illegal (there is no copyright infringement) by covering it.

ps on a personal note what does "so its not just a team of 'hobby developers'" mean?

[Wheelkick]

Originally Posted by JD

A friend of mine is working on his mod project with a few other people, and he was rather suprised when he learned that it's being mentioned in the latest issue of Edge. The thing is - he's actually not that happy about it. First of all, he thinks they should have been credited properly, names and all that. There's a link to the project on ModDB, which is where they got the content from, but that's it. They're not happy about the context either. All people involved in it are working on the game industry, so it's not just a team of 'hobby developers'.

The artwork and the concepts they created were used extensively and fill up a whole page. (See here - and OMG, it's not like the complete mag got scanned). They do think their copyright was violated since they weren't asked for permission at all. It's not like the team intend to sue for millions now, or something along those lines, but they think it's questionable nevertheless.

1. What's your take?

2. If anybody knows someone (at the mag) they could get in touch with about this, send me a PM, please. Thanks. They used the standard contact address given on the website and fired off an email a few days a go, but given the fact that such addresses are bombarded with spam, it seems unlikely that they'll get a quick response.

-Julian

Don't know what local law (Germany?) says on this, but it is definitely not ok over here. Artist has full ownership of their work, unless it is contracted* or he/she is working as an employee. In that case the ownership is with the company (or whom ever gave the contract). To reproduce (internet or mag) their work without their consent is an infringement of their intellectual property.

* Actually, when contracted, ownership is dependent on what's stated in the actual contract.

[Wheelkick]

Originally Posted by Kael

Publicity is good. The magazine is doing their project a favor by doing a writeup of it. Its hard to get any coverage that is handled like you would like, you will always have preferences but if you lay out your project on the internet then you cant be to surprised if others write about it.

Yes, it would have been nice if they would have contacted the team to get their input before publishing the article. But the magazine reports on what is going on in the game industry, your friend is developing in the game industry and posting publically about whats hes doing. The magazine hasn't done anything illegal (there is no copyright infringement) by covering it.

ps on a personal note what does "so its not just a team of 'hobby developers'" mean?

Reporting on what's going on in the industry is fine, but using an artists images without consent is not.

[Kareem]

Originally Posted by Kael

ps on a personal note what does "so its not just a team of 'hobby developers'" mean?

I think he means the modders all have full-time positions in the industry, so they aren't hobbyists.

I doubt anyone will eventually remember the details of how the people working on the mod were credited, and you'll never get magazine coverage that you're entirely happy with unless they print out your press releases verbatim. Besides, the publicity gained from Edge referrals would probably outweigh any perceived negatives, especially since they didn't slag off the mod or anything and the coverage was positive.

[Kareem]

Originally Posted by Wheelkick

Reporting on what's going on in the industry is fine, but using an artists images without consent is not.

You'd rather all reporting on a game you're working on use bland words and stock images, and not give any potential audience any idea of what your game looks like?

[JD]

The magazine hasn't done anything illegal (there is no copyright infringement) by covering it.

As Wheelkick said - it being available online doesn't give you the right to simply publish it in your magazine. The question is: Where does Fair Use end?

ps on a personal note what does "so its not just a team of 'hobby developers'" mean?

They do what they do for a living and don't consider their project and output representative for the work of a normal mod-team.

Don't know what local law (Germany?) says on this, but it is definitely not ok over here.

Yeah, I think it's covered by EU law in general.

[Wheelkick]

Originally Posted by Kareem

You'd rather all reporting on a game you're working on use bland words and stock images, and not give any potential audience any idea of what your game looks like?

I rather not anything. That is the law.
The artist has full right to the use of his work. And for any newspaper or magazine it should be a fairly trivial task of emailing or calling the artist in question.
As for words, no need to use bland ones.

If this was my game I would contact the paper immediately to work out how this could be mitigated in the next issue or whatever. Of course an artist should get full credit for his/her work. And as part of marketing this would be an excellent opportunity to get some more for free.

[Kael]

Originally Posted by Wheelkick

Reporting on what's going on in the industry is fine, but using an artists images without consent is not.

Thats exactly what fair use was created for, to allow for a sample of a larger work to be used in various situations (including review) without copyright infringement. If you were reviewing a book and included a quote that would be covered by fair use, likewise if you are reviewing a game and you include screen shots.

There is a legal distinction between copying a work of art (selling t-shirts with Salvadore Dali's "Giant Skull Sodomizing a Grand Piano") and including artwork from a larger work as a sample. There isn't a hard rule on "you cant use artists images without consent".

At least thats my (limited) understanding of american law. No idea how that is covered in Germany.

[unbongwah]

I suspect it's skirting the edge of Fair Use. OTOH, if they weren't properly attributed, could it count as plagiarism instead / as well?

[Wheelkick]

Originally Posted by Kael

Thats exactly what fair use was created for, to allow for a sample of a larger work to be used in various situations (including review) without copyright infringement. If you were reviewing a book and included a quote that would be covered by fair use, likewise if you are reviewing a game and you include screen shots.

There is a legal distinction between copying a work of art (selling t-shirts with Salvadore Dali's "Giant Skull Sodomizing a Grand Piano") and including artwork from a larger work as a sample. There isn't a hard rule on "you cant use artists images without consent".

At least thats my (limited) understanding of american law. No idea how that is covered in Germany.

Yeah, note that I am speaking on how Swedish law works. I have no experience with US law (or German, though this might be covered by EU directives or similar).

[Wheelkick]

Originally Posted by unbongwah

I suspect it's skirting the edge of Fair Use. OTOH, if they weren't properly attributed, could it count as plagiarism instead / as well?

Yeah, that is a big point imo. If you don't mention the artist at all, can you really claim fair use in the US?

[rezaf]

If I'd post an ad in a magazine saying "I'm selling these fine leather jackets" with a couple of images depicting leather jackets from a manufacturer, could the manufacturer sue me because I violated his copyright?
I hope not - even though I'm not planning of actually doing so...
_____
rezaf

[Wheelkick]

Originally Posted by rezaf

If I'd post an ad in a magazine saying "I'm selling these fine leather jackets" with a couple of images depicting leather jackets from a manufacturer, could the manufacturer sue me because I violated his copyright?
I hope not - even though I'm not planning of actually doing so...
_____
rezaf

You could take your own pictures. Otherwise I'm inclined to advise against using other peoples work like that. I haven't looked at recent rulings in this area, so I don't have a better answer to your question.

[Hans Lauring]

Originally Posted by unbongwah

I suspect it's skirting the edge of Fair Use. OTOH, if they weren't properly attributed, could it count as plagiarism instead / as well?

I don't think Swedish law is as clearcut as Wheelkick seems to believe either - unless they're outside EU in that matter entirely.



The problem with fair use is defining the art in question. Is concept art as pictured in Edge individual artworks or part of a larger whole? If it's the latter, like actual in game screenshots, then Fair Use seems right.
Edge is clearly skirting the Edge and should have asked. But the concept of gamedesigners/modbuilders not wanting free publicity is probably very alien to them. And understandably so.

The Scan of the Edge article should fall within EU Fair Use because it's for documentation purposes and it's not possible to read the whole article, which is the part that Edge holds the copyright to. You can see the pictures, but Edge have no copyright of those - of course if Edge was sued and found guilty of copyright infringement for publishing that artwork then whoever scanned the article would be just as guilty ;)

[red guy]

Correct me if I'm wrong; but the scanned page looks as if the images are being used to illustrate an article about the ease/difficulty of UT3 engine modding, with the ModDB attribution only in the image caption.

In my opinion, and based on that assumption: using one picture juxtaposed with other modding projects, could have been fair - "look, we found this charming project at http://very long and untypable address" - but that entire page of pictures more or less screams "Edge has been too lazy if they haven't asked, and owes your friends an apology and an in-depth interview".

[Brian Seiler]

Well, I'll chime in with my own understanding, gathered from observing any number of Fair Use and copyright arguments on Wikipedia, where this is a big issue. First off, I'm not a lawyer of any stripe, so none of this is legal advice. We're good? Okay.

The first thing that I understand about Fair Use is that it isn't a status. It's a defense. If the question is whether this act was permissible from a legal perspective in the United States, that's up in the air, but if the question is whether it's copyright infringement, the answer is definitely yes. Any use of any part of any copyrighted work not released under an open license or placed in the public domain is copyright infringement. Fair Use is an affirmative defense that a defendant can make in a lawsuit over the issue. So, if copyright law works the same internationally with Edge's country of incorporation, then yeah - you could sue. That's one good reason why Edge should have called the guys involved before using the image - lawsuits are expensive and annoying, and you have to prove Fair Use, which isn't a cost-free thing to do. That's why Wikipedia won't use it if there's any way they can avoid it.

The second thing that I remember is that Fair Use requires some critical address of the material. You have to be using that image for a reason. I haven't read the original article in question, but the squiggles on the scan sound like a general story about how ordinary people can do development and that the pictures in question are included as general examples of ordinary people doing development. That's shaky ground, if they're not examining that work in particular.

If it was me, I'm not sure how I would feel, but I can say for sure that if I were the publisher, I might try to get in touch with the designers just to make sure everything is free and clear.

[Peter Frazier]

There is a certain irony of seeing a group of people piggy-backing off someone else's product getting snotty that someone else is getting a free ride from them.
Also, if they're not getting paid for it and aren't planning on making it a commercial release; why aren't they 'hobby developers'? Does making free content to put on your CV or get you up the ladder suddenly change your status? It's not like they were called 'talented amateurs' or anything.

[Kirian]

Originally Posted by red guy

Correct me if I'm wrong; but the scanned page looks as if the images are being used to illustrate an article about the ease/difficulty of UT3 engine modding, with the ModDB attribution only in the image caption.

In my opinion, and based on that assumption: using one picture juxtaposed with other modding projects, could have been fair - "look, we found this charming project at http://very long and untypable address" - but that entire page of pictures more or less screams "Edge has been too lazy if they haven't asked, and owes your friends an apology and an in-depth interview".

The article in question is actually about the modding scene in general. It concentrates on the ModDB (only site mentioned, most of the article mentions it), and they picked out a number of mods that they thought looked interesting. There are ten specifically chosen for depth by the ModDB team.

Then two mods (Warm Gun and this one) were given full-page art treatments and mentioned as particularly interesting mods.

I wonder if they asked ModDB for permission for the artwork, as they interviewed one of those chaps for the article.

Contact the editor, is my advice. I don't see why they should be credited individually, as other games don't get the same treatment. I do see why they might be miffed, but this is some pretty high-profile publicity for them. I'm sure Edge would publish an apology and maybe an interview no problem.

Not asking permission is a silly move, but I don't know how it lies legally.

[JD]

There is a certain irony of seeing a group of people piggy-backing off someone else's product

I'm not sure what the "piggy-backing" is in this case. They all bought UT3 and are now working with the mod tools provided by Epic. It's one of the selling points of the game. The artwork and the models were developed by them.

They chose to go with UE3 because some of then are familiar with the engine and the tool-set. Not because they wanted to get free publicity.

Also, if they're not getting paid for it and aren't planning on making it a commercial release; why aren't they 'hobby developers'?

Most mod teams do not completely consist of people working in the industry, that's what I meant. And again, that doesn't give Edge a free pass either way.

-Julian

[Rob Beschizza]

There's nothing you can do about them reporting your mod.

Their use of original artwork is copyright infringement, but there's little you can practically do about it apart from complain. If you sued them, it would cost you tens of thousands of dollars. And if you won, you'd be entitled to damages, which is a big fat zero because it's a mod.

But as others have said, you've just been given major free promotion by a top gaming mag. What is wrong with you? They like you! When it's ready, get in touch with them, remind them they ran it and liked you enough to devote a full page to your work, and offer an exclusive interview!

[Tim Partlett]

Also, if they're not getting paid for it and aren't planning on making it a commercial release; why aren't they 'hobby developers'?

If John Malkovich did some experimental theatre for no pay, would he suddenly become an "amateur actor"?

[Kareem]

I'm still just absolutely flummoxed that some mod creators are actually angry at the positive publicity, coverage and flaunting of their art assets and mod by a major industry magazine.

[JD]

Originally Posted by Kareem

I'm still just absolutely flummoxed that some mod creators are actually angry at the positive publicity, coverage and flaunting of their art assets and mod by a major industry magazine.

They're not dancing in the streets because no proper credit is given, because they had to learn about this from someone else, because it seems like a copyright infringement nevertheless -- and from what I heard, Future doesn't hesitate to have their lawyers send an email if they feel that their copyright got infringed.

It's that they're super-pissed or something, and surely, they had no intentions to sue. Still, they'd like to know how this happened and why nobody thought about getting in touch with them. And yes, credit where credit is due.

I'm not an artist myself, but I can totally see why they care.

-Julian

[jpinard]

Originally Posted by Peter Frazier

There is a certain irony of seeing a group of people piggy-backing off someone else's product getting snotty that someone else is getting a free ride from them.

That does seem awfully ironic to me as well... That's the crux so many modders had fought against for years (especially with EA and their fight to shut down Madden modder additions that had anything to do with the NFL). I haven't read the whole article, so obviously you should be credited the individuals who came up with the fantastic artwork... but crying about it when you're already utilizing Fair Rights yourself just seems a little weird.

But maybe I'm not seeing the whole picture...

[Peter Frazier]

Originally Posted by Tim Partlett

If John Malkovich did some experimental theatre for no pay, would he suddenly become an "amateur actor"?

If John Malkovich jumped in for no pay to help a friend's amateur theatre company, would it suddenly become a professional business?

[Dave47]

This is not meant to be legal advice. If you're at all serious about this, don't look to a forum. Talk to a real lawyer. That said:

As has been stated, fair use in the United States is very messy. However, "criticism, comment, [and] news reporting" are specifically mentioned in 17 U.S.C. § 106 as examples of fair use behaviors that are not an infringement of copyright. That doesn't mean news magazines have carte blanche, but journalists have traditionally been granted a wider leeway by courts than the "average" potential fair user.

It's impossible to predict how any particular instance will fair under the four factors test. Transformativeness and market impact (in that order) seem the two most important tests these days. Transformativeness is rather wishy-washy, but the 2nd Circuit has allowed the unauthorized reproduction of copyrighted images to illustrate the story of the Grateful Dead in a situation that seems somewhat analogous. (See Bill Graham Archives v. DK. )

Under a market impact test the free nature of your mod will weigh heavily against you. To the extent that the mod will ever make you wealthy, it will come from becoming popular enough to cause someone to buy you out (ala Counterstrike) which demands widespread public attention. I cannot come up with a convincing argument of how this publicity causes any negative market impacts.

[hong]

Some ppl are too stupid to recognise ego bucks when they see them.

[Lux]

Originally Posted by Peter Frazier

If John Malkovich jumped in for no pay to help a friend's amateur theatre company, would it suddenly become a professional business?

Quick definition time: A professional gets paid to do something. An Amatur does it for fun. Quality isn't really addressed by these terms in any way. Malkovich probably considers himself an Amateur, I mean, it's not like he needs the money. He acts because he likes acting at this point.

[Mordrak]

Originally Posted by Lux

Quick definition time: A professional gets paid to do something. An Amatur does it for fun. Quality isn't really addressed by these terms in any way. Malkovich probably considers himself an Amateur, I mean, it's not like he needs the money. He acts because he likes acting at this point.

In English, amateur can actually carry both meanings: poor quality and/or non-professional.