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.”


Comments

Re: IP Litigator Scrutinizes Videogame Art

SO basically this article is saying that the game art is bad in some way or what? B/c digg dugg is a kid game!!!! Lol & a remake & Donkey Kong!?!?!? OMG!!!! Again this lawyer is narrow-minded & misinformed. Yeah lets hate against a fun loving money & ape that have been around since the arcade days!!!!! He is sooooo retarded.

 

 

"It's better to be hated for who you are, then be loved for who you are not." - Montgomery Gentry

"It's better to be hated for who you are, then be loved for who you are not." - Montgomery Gentry

Re: IP Litigator Scrutinizes Videogame Art

You're standing here. The boat, on the other hand, is waaaaaay over there.

Re: IP Litigator Scrutinizes Videogame Art

Giving that the video game parody section of Newgrounds is still up, I'd say things are o kright now.

Re: IP Litigator Scrutinizes Videogame Art

Ok...........so is this saying that games are copyrighted images and can be easily controled under the DMCA,ect or that games can easily use copyrighted images in them without fear of ambulance chasers ?


Until lobbying is a hanging offense I choose anarchy! Stop supporting big media and furthering the criminalization of consumers!! http://zippydsmlee.wordpress.com/


Copyright infringement is nothing more than civil disobedience to a bad set of laws. Let's renegotiate them.

---

http://zippydsm.deviantart.com/

Re: IP Litigator Scrutinizes Videogame Art

Neither, but you have too much tunnel-vision to see what he's on about.

--------------------------------------------------

I LIKE the fence. I get 2 groups to laugh at then.

-------------------------------------------------- I LIKE the fence. I get 2 groups to laugh at then.
 
Forgot your password?
Username :
Password :

Poll

Will we ever get Half-Life 3?:

Shout box

You're not permitted to post shouts.
Sleakeropinion to a company on where they run ads.10/02/2014 - 12:36pm
Sleaker@Papa Midnight - Suggesting that requesting ads get pulled from a site due to not agreeing with their message is not censorship. Funding and voicing your opinion are two completely separate topics. It's completely reasonable for people to voice their10/02/2014 - 12:35pm
Papa MidnightSame here, prh99.10/02/2014 - 12:31pm
prh99I played the first Half Life, haven't bothered with any of two. I like Portal more than Half Life anyway.10/02/2014 - 12:31pm
NeenekoI only got a short way into HL-1, but enjoyed HL-2. Probably because I do not like PC FPS games and HL-2 I got on console.10/02/2014 - 12:28pm
Andrew EisenI have a confession to make: I didn't really care for Half-Life.10/02/2014 - 12:27pm
Papa MidnightI don't think I've used the forums since the Wordpress days.10/02/2014 - 12:13pm
NeenekoI keep forgetting we even have forums.10/02/2014 - 11:48am
ZippyDSMleeA shame we can't have good convos in the forums, seems to me its time to nuke and restart fresh on them.10/02/2014 - 11:45am
Papa MidnightOh, no problem! Just wanted to let you know that it's what we're discussing. By all means, join in!10/02/2014 - 11:36am
E. Zachary KnightNeeneko, No problem. In juicy conversations, key points of discussion get pushed off quickly.10/02/2014 - 11:36am
NeenekoA rather scary censorship. I have known too many people and small companies destroyed by such pressure, so this unnerves me at a pretty personal level.10/02/2014 - 11:36am
NeenekoMy bad, I always have trouble working out what is going on in shoutbox10/02/2014 - 11:34am
Papa MidnightTo a point stated earlier, it very much is a form of indirect censorship. Rather than engage in rhetoric and debate, one side has instead chosen to cut-off opposing viewpoints at the knees and silence them via destroying their means of income.10/02/2014 - 11:28am
Papa MidnightNeeneko: the topic of Intel's dropping of Gamasutra is indeed part of this very ongoing conversation.10/02/2014 - 11:26am
NeenekoThis can't be good... http://games.slashdot.org/story/14/10/02/1558213/intel-drops-gamasutra-sponsorship-over-controversial-editorials10/02/2014 - 11:25am
Andrew EisenAnd there's also the consideration that the fact that a former IGN editor was one of the people who worked on the game's localization may be unknown (although in this specific case, probably not. Drakes been very visible at events IGN covers).10/02/2014 - 11:24am
Papa MidnightAlso, let's face it: people seem to believe that a conflict of interest can yield only positive coverage. Who is to say that Audrey Drake did not leave on bad terms with IGN (with several bridges burned in their wake)? That could yield negative coverage.10/02/2014 - 11:23am
Papa MidnightThat's a fair question, and it's where things get difficult. While Jose Otero may not have any cause to show favor, Jose's editor may, as may the senior editor (and anyone else involved in the process before it reaches publication).10/02/2014 - 11:21am
Andrew EisenWould such disclosure still be required if Fantasy Life were reviewed by Jose Otero, who wasn't hired by IGN until sometime after Drake left?10/02/2014 - 11:19am
 

Be Heard - Contact Your Politician