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.

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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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WonderkarpFudge, for some reason sometimes when I access Gamepolitics on my phone, it shoots me over too my app store. I think its the Ads05/28/2015 - 9:58am
WonderkarpI'm not perpetually offended. I'm an regular viewer of South Park. I have a problem with people saying gamergaters are school shooters. That and lets be honest. I dont like MechaRash05/28/2015 - 9:55am
Ivresse@MechaCrash: I'd like to refer you to the words of Stephen Fry: https://pbs.twimg.com/media/CGA3QGHW8AARsax.jpg05/28/2015 - 9:43am
Wonderkarpalright Fudge05/28/2015 - 9:27am
MechaCrashWhat good is being one of the perpetually offended if you don't make sure everybody sees just how offended you are?05/28/2015 - 9:02am
james_fudgeYou two can reasonably slug it out in the article in question if you want :)05/28/2015 - 8:59am
MechaCrashI wasn't expecting you to drag it into the shoutbox, either. Just when I think I have you pegged, you prove me only MOSTLY right.05/28/2015 - 8:55am
MechaCrashWhat argument? You made a joke in bad taste. I made a response joke in similar bad taste. And you are going berserk with...okay, not the flavor of HOW DARE YOU I was expecting (I thought you'd No True Scotsman, instead you dodged it entirely).05/28/2015 - 8:52am
Wonderkarpfyi, thats a self made "REDACTED" to make Mr Fudges life a little easier.05/28/2015 - 8:50am
Wonderkarphow is calling somebody out for being a [REDACTED] throwing a Tantrum? Is it cause you cant dispute my argument?05/28/2015 - 8:46am
MechaCrash"Grow a thicker skin," says the person throwing a tantrum that's filling the shoutbox.05/28/2015 - 8:40am
Wonderkarpbeen a bombing had Sarkeesian spoke, because there would be an increase police presence and nobody is THAT STUPID to make a threat like that and follow through. This isnt the movies05/28/2015 - 8:35am
WonderkarpIts what you make of them. GamerGate in DC had a bomb threat. Police were there, but GG continued to enjoy themselves and have a good time. Bomb Threats in general, you give them to the police and continue your business. I guarantee there wouldnt have05/28/2015 - 8:34am
MechaCrashhttp://www.sltrib.com/sltrib/news/58521856-78/sarkeesian-usu-video-feminist.html.csp Remember the talk Sarkeesian had to cancel because of death threats? Yeah. That's the thing I'm talking about.05/28/2015 - 8:30am
WonderkarpI'm not defending Bomb Threats. They are idiotic and have no place in society, but as somebody who lived through several bomb threats I can tell you they are weak05/28/2015 - 8:29am
WonderkarpSchool Shootings on the other hand are violent events that end the lives of children and come without proper warning due to mental illness and gun laws.05/28/2015 - 8:28am
Wonderkarpcause Bomb Threats are what you make of them. No successful bombing in the US has had a threat posted about it beforehand. Boston Marathon? Okahoma City? You either handle it with caution or dont handle it at all. most of the time ar done as stupid pranks05/28/2015 - 8:27am
Infophile@MechaCrash: One difference is that there's actual evidence linking GGers (or their ideological allies) to bomb threats, and no link to school shootings. For instance, we hate Jack Thompson here, but let's not accuse him of eg. committing grand theft auto05/28/2015 - 8:26am
james_fudgeGo to your corners and let the cutman do his work.05/28/2015 - 8:21am
MechaCrashHm, yes, "lol aGGs make bomb threats" is vastly different from "lol gaters threaten school shootings." Yes, I see the error of my ways! ...wait, no I don't, I see that you're still a hypocrite who can dish it out but not take it.05/28/2015 - 8:21am
 

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