Recreating graphics from example work.

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I have some graphics from a graphic designer of full screen gameplay mock-ups. Unfortunately he is no longer available to work on the project but I still like his concept. Would there be any problem with myself or another graphic designer using his design mock-ups as the basis to create the actual graphics for a game? Essentially it would mean copying / recreating the individual graphical elements to use in game.

My instinct is that it should be fine but I don't want to step on any legal toes.

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Sounds like you're planning to use his overall visual design but not his actual art pieces. You should check the wording in the contract (by which I mean the employment agreement or consulting agreement you and your graphic designer had in place when he was working with you) and see what it says. If he was compensated for the visual design, then (as long as your lawyer agrees) you might be okay.

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Thanks Tom. Unfortunately, no contracts were in place when this was done (just a lot of enthusiasm) and I don't have a lawyer available. Things are still at the spare time / hobby development stage.

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See the trouble you make for yourself when you don't execute agreements in writing? Maybe the guy is not able to work on your project anymore, but did you ask him if it's okay to proceed with his visual design? Get his okey-dokey in an email at least.

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That's what happens when you start working on things with friends but a couple of years roll by and lives move on.

I guess it's also one of those lessons learnt from experience. Like most amateur game devs my experience is in programming, so all the other facets of the process are being picked up as I go.

So far my last few messages over a month have gone unanswered. I suppose he could have lost his phone, so I'll try emailing him today.

Is there a point where you can say "all reasonable attempts to contact him have failed", or something similar?

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4 hours ago, Rancorb said:

Is there a point where you can say "all reasonable attempts to contact him have failed", or something similar?

Sure. There's also a point where he can say "Hey, I never gave you permission to use that, so I'm suing you." It's probably okay to use it, if you're using it as he originally intended, but I'm not a lawyer and this is not legal advice.

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Understood, and thanks for the advice. It's not until you find yourself in one of these potential situations that you realise why they're almost a cliche of beginners mistakes. I've sent an email to check for certain if he's interested in doing the work or not. I'll give it a couple of weeks for a reply before deciding what to do next.

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On 15/09/2017 at 10:47 PM, Rancorb said:

Would there be any problem with myself or another graphic designer using his design mock-ups as the basis to create the actual graphics for a game?

Did you pay for the original work to be done? If yes, no problem (paying someone to do work creates a implicit contract, that while vague, almost certainly grants you permission to use that work). If no, you're potentially violating the copyright of the original artist.

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Thanks Hodgman, good point. There was no contract or payment made for the mock-up, it was more of an ad-hoc "I've got a great idea for how to skin that game, here's a mock-up I put together." You've just reminded me that I did agree to pay him cash and a % of income generated for creating the actual graphics back in February, but things subsequently went silent. Hence my concern and questions.

I suppose an alternative question might be along the lines of: He designed a space styled skin for the game (star fields, cloudy overlay, spheres for obstacles), can I now make a space styled skin of my own along similar lines or is that whole style effectively locked without explicit permission now?

I'd still prefer him to do the work (or another graphic designer) because my developer art is pretty rubbish and the game would definitely benefit from some simple but professional artwork.

Edited by Rancorb
Spelling and improved clarity.

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48 minutes ago, Rancorb said:

I've sent an email to check for certain if he's interested in doing the work or not.

Doing more work? That's not what I understood you were asking about. I thought you wanted his permission to use his original concept art as the basis for someone else to create your game art.

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To be clear, ideally I'd still like to pay him for doing the work (he's very good and familiar with the project), though having his permission to use his design would also let me move forward myself or with another graphic designer.

If I hear nothing then I'm still in the same situation I am now and wondering about my options.

I hope that makes sense, apologies for confusing things.

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3 hours ago, Rancorb said:

If I hear nothing then I'm still in the same situation I am now and wondering about my options.

Your options should be obvious:

1. Proceed (use his concept art) but know you're taking a risk.

2. Don't proceed with his concept art.

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In general, what you're looking at is a question about whether a particular use counts as "fair use" under copyright in your jurisdiction. (The US?) Perhaps you're also wondering whether there is an implied contract from the original teamwork. (If there is, it's probably one that the original artist would expect an equal share of profits, so it's unlikely you'd want to rely on that, even if there was one, which there probably isn't.)

In copyright, "fair use" is totally a thing, as is "transformative work." You might want to read up on those, and talk to a copyright lawyer in your jurisdiction how those terms have actually been applied in cases that matter.

In brief, here is how I think about it, for my own cases:

I can go to a museum, and be inspired by the art, and make my own thing that looks like the museum art.

But, I cannot "clone" the art in a museum (unless the artist is dead for long enough that copyright has expired.)

If I'm using the concept art as inspiration, but my own creation is reasonably clearly my own, then being inspired by the original concept art is totally fine. Artists get inspired by other artists all the time.

If my in-game art is an almost pixel-perfect replica of the original art, except I re-drew it painstakingly in Photoshop because I didn't have the source files, then that's probably less fair use, and I'd probably be taking a real risk. (One possible defense might be "transformative use" where a live game is different from a static concept sketch -- no idea how that would fly if someone actually went to court. Again, ask a professional in your area!)

To avoid that risk, get the guy's OK, or make sure that the actual art used in the game is somewhat obviously something you created, just inspired by the other art, rather than a clone of it.

 

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Thanks hplus0603, I'll read up on those (UK based but hopefully similar). If I create graphics 'inspired' by his work it definitely won't look the same, that's part of the problem...

Thanks everyone, appreciate the feedback. You've definitely helped me decide what approach to take.

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