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"Fair use doctrine" advice needed


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#1 Sollum   GDNet+   -  Reputation: 759

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Posted 14 October 2012 - 08:28 AM

Good afternoon.

I've stumbled upon one little issue. I wanted to use art and background "world" in my little project from another game. Tried emailing that company, but got no response (for like two months), wanted to make a call (as FAQ states), but... calling to America from a little post-soviet country is A BIT expensive.

So now i stand upon a crossroad... go on, and use what i need i pray for no law suit.
...or spend year or so learning pixel art and do my own stuff.

Either way, project is made for study purposes and no financial income is expected.

Could somebody give me an advice? Or any guidance...

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#2 Tom Sloper   Moderators   -  Reputation: 10148

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Posted 14 October 2012 - 11:10 AM

Could somebody give me an advice? Or any guidance...


It's not "fair use." Don't do it.
-- Tom Sloper
Sloperama Productions
Making games fun and getting them done.
www.sloperama.com

Please do not PM me. My email address is easy to find, but note that I do not give private advice.

#3 samoth   Crossbones+   -  Reputation: 5031

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Posted 14 October 2012 - 12:25 PM

Neither "for study" nor "no profit" nor the fact that you got no reply on your email is an excuse, using art from another game (without license/permission) is a copyright violation.

If "for study use" means that you do it for learning how to write a game, privately in your dark cellar, and never show it to anyone else, you are probably OK, because nobody will know. However, it's of course still illegal.
It's problematic even more so as you've already asked about it and thus factually admitted that you know what you're about to do is against the law, which makes it impossible to talk yourself out of it, if it ever comes to the worst. In many places, the penalties are considerably higher too, in this case.

#4 Sollum   GDNet+   -  Reputation: 759

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Posted 14 October 2012 - 03:09 PM

Thanks for your responses.

Since i work in partially law company (we rarely have any cases of IP at all), I wonder how the law suit would look like and where court would take place. Would they buy me a 1st class plane ticket in order to come to America or bother coming to my place? IP is very unpopular problem in my country, i saw like 4 or 5 cases at all, and USA law does not work here.

I bothered checking Curia database with simple request "Intellectual Property", yet nothing worth attention rose up.
http://curia.europa....for=&cid=223995

It's not like i'll go any further with this, i'll have to do my own art, but i wonder how would procedure look like.

Edited by Sollum, 14 October 2012 - 03:17 PM.


#5 Tom Sloper   Moderators   -  Reputation: 10148

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Posted 14 October 2012 - 04:11 PM

i work in partially law company

Then why don't you ask the partially lawyers at your company for their advice -- and their definitions of "fair use."
-- Tom Sloper
Sloperama Productions
Making games fun and getting them done.
www.sloperama.com

Please do not PM me. My email address is easy to find, but note that I do not give private advice.

#6 samoth   Crossbones+   -  Reputation: 5031

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Posted 14 October 2012 - 06:28 PM

Read Mr. Gerhard's comment in paragraph 8 here. No, they won't buy you a ticket. Basically nobody cares whether you defend yourself at the court or not, this is your problem. They don't care that you're not in the US either.

And no, the above article is not an april fool's prank :-)

Edited by samoth, 14 October 2012 - 06:29 PM.


#7 Sollum   GDNet+   -  Reputation: 759

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Posted 15 October 2012 - 07:51 AM


i work in partially law company

Then why don't you ask the partially lawyers at your company for their advice -- and their definitions of "fair use."


As i said, sir, - "IP is very unpopular problem in my country, i saw like 4 or 5 cases at all, and USA law does not work here.". Our lawyers are not partially lawyers, we are just partially law company.

Read Mr. Gerhard's comment in paragraph 8 here. No, they won't buy you a ticket. Basically nobody cares whether you defend yourself at the court or not, this is your problem. They don't care that you're not in the US either.
And no, the above article is not an april fool's prank :-)


Thanks for that interview!

What i got from my sources

"Often, famous foreign companies have their representatives - lawyers, experts of patenting, in other countries. And its their duty to bring bad guys to justice. Furthermore, court happens in the country, where crime took place."

But as i said, we don't have such cases here, so we don't have practice with it. It would be quite interesting hearing from professional lawyers from countries that are out of USA influence, how such matters are taken care of.

It's just a matter of curiosity.

Edited by Sollum, 15 October 2012 - 07:52 AM.


#8 samoth   Crossbones+   -  Reputation: 5031

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Posted 15 October 2012 - 09:24 AM

Furthermore, court happens in the country, where crime took place.

Criminal court happens in the country where the crime took place.

Civil action happens where the guy sueing you chooses to go to court. Which is usually a) a place in "comfortable" reach for his attorney, but not for yours and b) a place where the complainer expects the best possible outcome.

For US patent and copyright lawsuits, that usually means "Texas" because judges in Texas have a bad reputation for being biased against foreign people and/or companies.

Again, they don't care if it's difficult for you to show. That's your problem, and if you don't show, they'll just rule without hearing you. Don't you think Mr. Gerhard would have said "Huh... what? Who gives a fark... we don't do business in the USA." otherwise, instead of spending millions on a lawsuit in a far away country that he doesn't need to bother about?

Edited by samoth, 15 October 2012 - 09:24 AM.


#9 Sollum   GDNet+   -  Reputation: 759

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Posted 15 October 2012 - 09:47 AM


Furthermore, court happens in the country, where crime took place.

Criminal court happens in the country where the crime took place.

Civil action happens where the guy sueing you chooses to go to court. Which is usually a) a place in "comfortable" reach for his attorney, but not for yours and b) a place where the complainer expects the best possible outcome.

For US patent and copyright lawsuits, that usually means "Texas" because judges in Texas have a bad reputation for being biased against foreign people and/or companies.

Again, they don't care if it's difficult for you to show. That's your problem, and if you don't show, they'll just rule without hearing you. Don't you think Mr. Gerhard would have said "Huh... what? Who gives a fark... we don't do business in the USA." otherwise, instead of spending millions on a lawsuit in a far away country that he doesn't need to bother about?


Quite interesting, ill try to gather some information on this matter tomorrow :)

What makes me wonder is:
A) Why should i be obligated to pay the bill to some foreign company, that has no jurisdiction here whatsoever.
B) So... i can go to my local court and TRY to sue... lets say Relic Studio, because they have similar artwork to what i made when i was 5. And then they are obligated to come to my place...

I kinda see it as Aprils fools joke :D

#10 samoth   Crossbones+   -  Reputation: 5031

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Posted 15 October 2012 - 11:41 AM

See... there is this Austrian parachuter who broke the world record for the highest jump a day or two ago. You may have heard of that Mr. Hogan who actually sued Baumgartner's sponsor for stealing the idea of breaking the world record in skydiving... and then remember about 10 years ago when that guy sued McDonalds for serving hot coffee (which he clenched between his legs while driving, with a foreseeable result at the next traffic light). And don't forget that Korean company being sued for selling a black phone with a touch display.

There are very few things that are too absurd to sue someone for in the USA, and sadly it's no joke. I'd laugh if it couldn't possibly affect me as well.

Either way, copyright infringment as in "using some other game's artwork for my own stuff" is not something that's solely actionable in the USA. There are very few countries where this is seen as a trifle (China might be such a place, the government seem to be quite relaxed on that field). In the vast majority of places on this planet, you'll be getting yourself into serious trouble with that.

#11 Sollum   GDNet+   -  Reputation: 759

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Posted 15 October 2012 - 11:48 AM

See... there is this Austrian parachuter who broke the world record for the highest jump a day or two ago. You may have heard of that Mr. Hogan who actually sued Baumgartner's sponsor for stealing the idea of breaking the world record in skydiving... and then remember about 10 years ago when that guy sued McDonalds for serving hot coffee (which he clenched between his legs while driving, with a foreseeable result at the next traffic light). And don't forget that Korean company being sued for selling a black phone with a touch display.

There are very few things that are too absurd to sue someone for in the USA, and sadly it's no joke. I'd laugh if it couldn't possibly affect me as well.

Either way, copyright infringment as in "using some other game's artwork for my own stuff" is not something that's solely actionable in the USA. There are very few countries where this is seen as a trifle (China might be such a place, the government seem to be quite relaxed on that field). In the vast majority of places on this planet, you'll be getting yourself into serious trouble with that.


Yeah, i totally agree on bold part and it's not like i will do it, but this patent thing is just ridiculous. I wonder how come no one patented Dice and Cards, or even Thinking for that matter.

Anyways, thanks for your responses! I'll dig into Pixel Art myself :)

#12 mdwh   Members   -  Reputation: 901

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Posted 16 October 2012 - 10:03 AM

Don't release/distribute if it's only for study?

Get someone else to do it?

Find some open source/Free assets that will also do (e.g., try places like Open Game Art)?

If "for study use" means that you do it for learning how to write a game, privately in your dark cellar, and never show it to anyone else, you are probably OK, because nobody will know. However, it's of course still illegal.

I'm not sure that's an "of course" - this would depend on the specific countries laws.

Yes for example in the UK up until recently, any copy, even without distribution, was a violation, though then again, this made it illegal in the same way that anyone copying a CD they bought to their computer or mp3 player was also technically breaking the law. I believe the law has been changed now (or will be).

In the US, I would have thought fair use would be the thing to be looking at - though as you say, it's academic anyway if it's never released.
http://erebusrpg.sourceforge.net/ - Erebus, Open Source RPG for Windows/Linux/Android
http://homepage.ntlworld.com/mark.harman/conquests.html - Conquests, Open Source Civ-like Game for Windows/Linux

#13 bschmidt1962   Crossbones+   -  Reputation: 1879

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Posted 16 October 2012 - 10:12 AM

B) So... i can go to my local court and TRY to sue... lets say Relic Studio, because they have similar artwork to what i made when i was 5. And then they are obligated to come to my place...


You could of course do that. However suing someone costs money: court fees, filing fees, legal fees..... So unless you were pretty sure you'd win, that would be an expensive undertaking to do properly. And of course, you run the risk of the suit getting thrown out if it's particularly bogus.
But what you were describing (directly taking copyrighted artwork and using it) won't be thrown out as a bogus suit.

Now to be fair--once in a while someone does something interesting that is also blatantly a copyright violation. Something interesting enough that the company owing the property takes notice and things sort of work out.
One example of this was the original iPhone "lightsabre" app, that used clearly copyrighted sounds, owned by Lucas. Rather than take the app off the store, Lucas made them change it into a promotion for an upcoming star wars game.

But to be clear, Lucasfilm was holding all the cards in that one. They could have just as easily said "take it down, and by the way, here's a bill for using our IP"

Brian Schmidt

Executive Director, GameSoundCon:

GameSoundCon 2014:October 7-8, Los Angeles, CA

 

Founder, EarGames

Founder, Brian Schmidt Studios, LLC

Music Composition & Sound Design

Audio Technology Consultant


#14 DaveTroyer   Members   -  Reputation: 1052

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Posted 16 October 2012 - 02:20 PM

You might feel like reading this article: International Copyright

Now, you may be able to do it and think you've gotten away with it, but as the internet grows, the world becomes a much smaller place. If you think you're protected from prosecution due to being in a different country, you're wrong.

As the article states, many countries have agreements to pursue copyright infractions from other countries.

All that really means that even if your country isn't that big on enforcing copyright law, they may be forced to pursue a debt from outside the country or allow a company from outside the country to pursue the debt within their country. This would not be limited to just sending bills and effecting credit; it could come with garnishing pay, freezing accounts, and taking possession of personal property to be sold to pay the debt.

Its a slippery slope you're trying to ice-skate up.
All I suggest is don't chance it. Besides, people won't take your game seriously if you steal assets from other people rather than making something of your own.

Didn't mean to be a downer, but come on guy! Its not that tough to just take some time and do it yourself! Posted Image

Edited by DaveTroyer, 16 October 2012 - 02:21 PM.

Check out my game blog - Dave's Game Blog


#15 Silvanis   Members   -  Reputation: 343

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Posted 21 October 2012 - 08:49 PM

Using another game's artwork in your game is copyright infringement in the United States. Frankly, what it is in your country is irrelevant. Apple is a US company, so if you want to make your game for iPhone or iPad, that people you infringe can force Apple to block it. Valve (Steam) is a US company, so any PC games you sell through them will also get blocked. If your company's website is a .com, .net, or .org, that can also be considered a way for the infringed company to recoup their costs.

Bottom line is that even in the best case scenario (living in a country that does not respect copyright laws and doesn't allow international attempts to collect debt), you will still get cut off at the knees when you try to distrube your game. In the worst case, as Dave Troyer mentions, you would be subject to garnished pay, frozen accounts, and reposession.

#16 Dan Lee Rogers   Members   -  Reputation: 123

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Posted 29 October 2012 - 09:17 AM

As Tom suggested earlier, your use is called "copyright infringement" not "fair use". In the context you've described, there's nothing fair about stealing someone's artwork, simply because you haven't been able to contact them.

Under US Copyright law, infringement carries a statutory fine of $750-$30,000 per instance. Where there is willful infringement, at the court's discretion, the award of damages can be as much as $150,000 per work.

What you've described is willful infringement, so as Tom has suggested, "don't do it."

BTW: Please do not consider this legal advice. Your circumstances, etc. may be more complex than what you've described, and the purpose of my response is editorial only.

Dan




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