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olsm

Using illustrated characters/celebs to hit/shoot

14 posts in this topic

Hello,

[first: i have read the faq and articles like this one:[url="http://www.sloperama.com/advice/faq61.htm"]http://www.sloperama...dvice/faq61.htm[/url], however they do not clearly answer my question]

So here's the thing: I was wondering if I could display Illustrations of popular persons or popular movie-/game-characters in my game to then hit or shoot them?
For example here are 3 illustrations, those were made by myself and everyone can clearly see who these characters are supposed to be(i guess):
[attachment=6260:borarnold.png]

What I want to do with them is hitting/shooting them and then they disappear - would this still cause a copyright infringement?!
I'm asking this because I've seen Apps on the Apple-Store like this one: [url="http://itunes.apple.com/us/app/bustin-jieber/id404956571?mt=8"]http://itunes.apple....d404956571?mt=8[/url], 'Bustin Jieber' - where they
display an ACTUAL photograph of Justin Bieber, that you have to hit - and since Apple is pretty strict with aprooving apps with copyright infringements,
I was wondering if I could do this without getting in [seriouse] trouble.


Edit: I'm guessing this could only work under the circumstance if it is seen as a "parody" - am I correct? But this brings me to my next question: Where is the line to a
parody? Is there one?! For example if I gave Mario breasts or another skin-color - would that count as a "parody"?


Thanks for your replys!
Kind regards,
olsn
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Olsn,
I think my article did cover this. But let's pass over that and get to the two central questions back to you:
1. [b]Why[/b] does your game need to shoot Harry Potter, The Terminator, and Mario the Plumber, [i]without a lawyer's counsel?[/i]
2. If you really need to shoot parodies of famous characters, don't you think you deserve the best legal grounds before going public with your game?
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Hi,

Thank you for that reply, I can see what point you'er trying to make, but I was rather refering to that iPhone-app i posted than "just
using movie-/game-characters"
The "shooting" was just as an example, but let's put that aside and modify the example to that "justin-bieber-wack-a-mole-app"-link I posted.
Would this be possible for me to do something like this app, but instead of having a photograph of Justin Bieber appear, I have
another illustrated game- or movie-character appear - when i tab on it, it disappears and I get some kind of score...ect.?
OR might this be one of those cases where Apple did not pay attention to a possible infringement? I don't think so, since there are several
of there "Celebrity-wack-a-mole-apps" to find on the Appstore.

Also another question: Are there guidelines or EXAMPLE-CASES to what is/was considered a parody and what not?
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[quote name='olsn' timestamp='1322420548' post='4888169']
1. let's put that aside and modify the example to that "justin-bieber-wack-a-mole-app"-link I posted.
Would this be possible for me to do something like this app, but instead of having a photograph of Justin Bieber appear, I have
another illustrated game- or movie-character appear - when i tab on it, it disappears and I get some kind of score...ect.?
2. OR might this be one of those cases where Apple did not pay attention to a possible infringement?
3. Are there guidelines or EXAMPLE-CASES to what is/was considered a parody and what not?
[/quote]
1. Anything is possible. It's about risk tolerance. How much are you willing to risk being sued?
2. We cannot tell you exactly where the "Apple will / Apple won't" line is. There is no hard and fast line.
3. A good IP attorney could help you identify some of those.
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So here is the problem. Although IANAL, you are almost certainly within the letter of the law. HOWEVER we live in a lawyer's world and a corporation's world, and if someone wants to sue you they can. Doesn't matter if what you're doing is 'okay' or not! Now as a practical matter if someone is upset they will probably issue a cease and desist letter, which is a not so friendly warning to respond 'or else'. If you get one, you can make the requested changes and move on with your life.

Still, you always, [i]always[/i] do these things at your own risk.
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Apple might reject your app/game for whatever reason, but yes - they are more likely to do so if they infer that you [i]might [/i]be skimming the line towards breaching copyright. So, yes, they [i]could[/i] approve it - but more likely they'll throw a big fat "rejected" note with a return-to-sender sticker.
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Okay, thank you for your replys, they did make things clearer a little bit, even though I worry more about getting into trouble with copyright infringement than Apple rejecting an app :-)
I know that Apple's pretty strict with that, but that was the initial reason for my post because they approved an App with a Game based on a photograph of Justin Bieber, but i guess
they seen that(and all the other celeb-wack-a-moles) as a "harmless parody".

But basicly what you're saying is: Even IF I get a lawyers consent, that I'm "save" - Celebs/Corporations. might still sue me and it will be very expensive for me after all?

Also: Are there any records of when a corporation sent out a C&D first or directly sued someone?
I mean...I know if I make an app like this, it probably won't get any "big" anyways and corporations probably won't find out about it either - still I want to know about the possible risks beforhand.
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[quote name='olsn' timestamp='1322474014' post='4888373']
1. But basicly what you're saying is: Even IF I get a lawyers consent, that I'm "save" - Celebs/Corporations. might still sue me and it will be very expensive for me after all?
2. Also: Are there any records of when a corporation sent out a C&D first or directly sued someone?
3. I mean...I know if I make an app like this, it probably won't get any "big" anyways and corporations probably won't find out about it either - still I want to know about the possible risks beforhand.
[/quote]
1. Yes. My FAQ, which you started off saying you'd read, does say this.
2. Yes. There are court records of such things. Matters that did not go to court are not recorded in a way that the public can discover, unless one party went online and whined about the C&D he received.
3. Yes. My FAQ discusses this. And the best way to know and mitigate your risks is to have a good attorney.
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It occurs to me that a photograph of a real person is not the same kind of thing as characters. The latter are covered by copyright and potentially trademark. But if I take a photograph of a real person, I'm the one who owns the copyright of that photograph (though there may be other issues in some countries such as model rights).

I'd also add that I had no idea the left most character was meant to be Harry Potter :) Sticking an "M" on the right most guys hat probably makes things a lot worse in terms of being associated with a copyrighted or trademarked character...
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According to my knowlege it makes no difference if the person is being photographed or illustrated - in any case you have the to ask a person for permission for certain types of publishing(not just celebrities)
There are some exceptions for example if you write an article about a celeb attending a PUBLIC event ect... then you can print his/her picture, I doubt that a game or an app could be
be justified with exeptions like this :) (but IANAL).

For that justin Bieber app there are 2 (3) possibilities:
1) The app is just so unimportant and noone cares.
2) It is seen as a parody and therefore everything is correct.
3) (the MOST unlikely case) - The App-author knows Justin Bieber and has his written permission to use his photograph.

But I guess I know what you are trying to say: For celebs it won't be as easy to have "them" removed from some game/app as for other game-/movie-character? - Still I'm not so sure about that.
But I guess I will go with some other plan anyways :-) - Thanks for all the replies btw. they did help me indeed :-).

cheers,
olsn
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[quote name='olsn' timestamp='1322671777' post='4889124']
According to my knowlege it makes no difference if the person is being photographed or illustrated - in any case you have the to ask a person for permission for certain types of publishing(not just celebrities)[/quote]Any issues on this to do with photographing people are not covered by copyright law.

As I say, "there may be other issues in some countries such as model rights", but this isn't copyright law. The point I was making is that the laws on model rights, or how one random application store decides to enforce them, doesn't tell us specifically about how things might work for copyright law.

Also when you say "the person" being illustrated. In your example, we're not talking about an illustration of a real person, but also that you are copying a fictional character, which is where the copyright problems come in.
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I'm not sure if i got this right now:
Are you saying that illustrating a celebrity(und using it in an app ofc) is not as "dangerouse" as illustrating a fictional character, because model-rights are less "strict" than copyrights?
or
Are you saying that model-rights and copyrights are just to different things?

Tom Sloper's FAQ states this issue with the following: '[font=Georgia][size=2]Just as bad. Celebrities make a living from their faces, and they'll sic their lawyers on you real quick if you try that. Celebrities are not fair game like public figures are.'[/size][/font]
So that sounds to me like is doesn't matter in this case if there are copyrights or modelrights involved, one can get trouble from either end, if doing so.
So it's either "getting into trouble for violating some rights" OR "getting into trouble for violating some other rights" ...
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[quote name='olsn' timestamp='1322764426' post='4889500']
So it's either "getting into trouble for violating some rights" OR "getting into trouble for violating some other rights" ...
[/quote]
Or how about "getting a lawyer's advice before deciding how much trouble I'm willing to get myself into." None of the advice you've gotten here is from a lawyer.
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[quote name='Tom Sloper' timestamp='1322778006' post='4889605']
Or how about "getting a lawyer's advice before deciding how much trouble I'm willing to get myself into." None of the advice you've gotten here is from a lawyer.
[/quote]

Sure that would be the best solution, but I don't have the money to ask a lawyer these kind of questions, if I had, I would not have to do this kind of research online ony my own :-)
But I probably won't be using other characters and celebs now.
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[quote name='olsn' timestamp='1322764426' post='4889500']
I'm not sure if i got this right now:
Are you saying that illustrating a celebrity(und using it in an app ofc) is not as "dangerouse" as illustrating a fictional character, because model-rights are less "strict" than copyrights?
or
Are you saying that model-rights and copyrights are just to different things?[/quote]I'm saying they're different things. I'm also saying that one random app store might treat one different to the other. Or maybe it's just pot luck what slipped through the review system that day. I wouldn't endorse doing either.
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