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.

 

 

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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.

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NeenekoI have met some real jerks and slimeballs in gender activism, but when I hear the idea that there are many 'not nice' people it comes across as code for 'uppity people who do not know their place'.09/19/2014 - 12:10pm
Andrew EisenKrono - Many of the people pushing gender issues aren't nice people? I'm sure not everyone's a sweatheart but so far, everyone I've seen with such a critique had absolutely nothing to back them up.09/19/2014 - 10:46am
InfophileI think there's a qualitative difference between a site and a hashtag though. GP can ban anyone from commenting, so they can have the image they want. But anyone can use any hashtag and try to poison it. Granted, that hasn't happened to the other one yet09/19/2014 - 10:13am
E. Zachary KnightKrono, your comparison to GP does not work. We do not need to get rid of GP, because no one associates GP with trolls and abuse. The same can't be said for gamergate.09/19/2014 - 10:09am
Krono@Michael You don't remember the "other hashtag" because no one actually uses it. We're talking 836,983 uses of #gamergate over it's lifetime, and 8,119 for the "alternative". 47,129 uses on the 18th vs 41. With #notyourshield at 140,133 uses & 5,209 uses09/19/2014 - 9:48am
Kronoresearch it. Changing tags to get away from trolls would be like wiping GamePolitics and restarting under a new name to get away from people calling Jack Thompson a filthy names in the comments section.09/19/2014 - 9:35am
Sleaker@quiknkold - seems like all that page is is a bunch of random developer opinions and rumors that we're supposedto do what with?09/19/2014 - 9:31am
Kronoas an opportunity to push back against them. It's one of the things muddling the issue. @conster A new hashtag would do nothing to improve anything. Trolls will simply follow to the new hashtag, and it will confuse the issue for anyone attempting to09/19/2014 - 9:25am
Krono@Andrew aaah. Yes, I'm sure there's some of that. Part of the problem is many of the people pushing gender issues are not very nice people. Basically the latest incarnation of moralists we've seen in the past couple decades. Naturually some will take this09/19/2014 - 9:23am
quiknkoldhttp://www.nichegamer.net/2014/09/real-gamedevs-sound-off-regarding-the-gamergate-controversy/09/19/2014 - 8:35am
MaskedPixelanteMeanwhile, in news that actually DOES matter, Scotland voted "NO" to Scottish independance.09/19/2014 - 8:20am
ConsterSeriously? "We shouldn't make a new hashtag - it's better to associate ourselves with psychos than to decrease our visibility"?09/19/2014 - 7:54am
Michael ChandraI forget what it is exactly, but there already is another hashtag that some use, exactly to separate themselves from the abusive behaviour. So don't bother lying to me.09/19/2014 - 7:06am
quiknkold2 to 3 or more09/19/2014 - 6:53am
quiknkoldMichael Chandra : I'll say this. The only reason they havent used another hashtag is because it would look like a form of dividing the arguement. Using another Hashtag has come up, and they feel like if they made a new hashtag, it'll split the debate from09/19/2014 - 6:53am
Michael ChandraYou want a debate? Build a wall between you and the poisoned well. Make clear you despise it, despise the behaviour. Then get into the other issues you are troubled with, and don't say a single word again about the poisoned well.09/19/2014 - 3:46am
Michael ChandraAnd someone claiming #notyourshield was to be taken serious, when chatlogs show they wanted it going to hide even more harassment behind? Yeah, not buying a word you're saying. You poisoned your own well.09/19/2014 - 3:45am
Michael Chandraallegedly fired over giving a game a mediocre review and the company threatened to pull ads? Sorry but I ain't buying this.09/19/2014 - 3:45am
Michael ChandraBut people arguing this is horrible and just about ethics, even though there's very little support that journalistic integrity was actually violated here, while they never spoke up when a journalist was09/19/2014 - 3:43am
Michael ChandraIf people start with condemning the way GamersGate was used as a misdirection, then use a better hashtag, that would work in convincing me they mean it.09/19/2014 - 3:43am
 

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