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

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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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WonderkarpAndrew Yoon Died http://www.gamerevolution.com/news/rip-andrew-yoon-3096901/31/2015 - 10:26pm
Matthew Wilson@ea so much happened this week its not funny. fcc broadband, Nintendo, sega, and sevral other big stories. was not a slow week lol01/31/2015 - 8:50pm
Andrew EisenWasn't on the list but we can certainly talk about it.01/31/2015 - 8:45pm
Matthew WilsonI know its not directly related to games, but are you going to tak about the fcc raising the definition of broadband to 25/3?01/31/2015 - 8:33pm
Wonderkarpwell we had to christen it some way01/31/2015 - 7:13pm
Andrew EisenThank goodness the Shout box now goes back 100 shouts, eh folks?01/31/2015 - 7:10pm
Wonderkarpyouve said youre stuff. I gave you a point on one thing.01/31/2015 - 7:04pm
Andrew EisenNo, they're facts. Not beliefs. Not opinions. Facts. Do I need to list them all for you again? I'm happy to oblige.01/31/2015 - 7:02pm
Andrew EisenAnd I have seen no evidence (and would find it very hard to believe) that her fans and funders, even the most radical, would be the ones perpetuating that nonsense.01/31/2015 - 7:01pm
Wonderkarpabout as right as Glenn Beck is about the gays, man. Its all your beliefs and opinions.01/31/2015 - 7:01pm
Andrew EisenI didn't say you did. And this talking head is still right about everything he's said so far.01/31/2015 - 6:58pm
Andrew EisenAlso, considering the number of non profits that merchandise, I'm going to guess you're wrong on that one too but I don't really know as it's not my area of expertise.01/31/2015 - 6:58pm
WonderkarpYou can keep saying that all you want. Its just a talking head, man. there's all the proof in the pudding. I never said she was trying to take away games, or get rid of male protagonists, or any of the BS thats perpetraited by her more radicalfans/funders01/31/2015 - 6:56pm
Andrew EisenNo, as I've spelled out throughout this discussion, you're wrong.01/31/2015 - 6:53pm
Wonderkarpok. that one I am wrong. I'll give you that one. That was one I didnt research properly. BUT I'm right on the others.01/31/2015 - 6:53pm
Andrew EisenFact: It makes no difference whether she recorded the footage or not. Fact: yes she does have a Section 107 'fair use' disclaimer at the end of every video and in the video description.01/31/2015 - 6:47pm
Wonderkarpsaying otherwise. I've presented a video with cited sources combined with opinion. Youre presenting just your opinion. 01/31/2015 - 6:43pm
Wonderkarpits still important information brought up on the original video. and by not saying anything, the casual observer thinks its her footage. there's no "section 107 Fair use" disclaimer. Its as if she's showing star wars and saying "look what I made" without01/31/2015 - 6:43pm
Andrew EisenIf that's true, maybe she's willing to lose her tax exempt status by merchandising. So? Also not a problem with her Kickstarter. And no, I don't have to be a rep of FemFreq to point out how nonsensical, irrelevant and untrue all this nonsense is.01/31/2015 - 6:43pm
Andrew EisenShe doesn't say it's not her footage and she never said she'd record all her own footage. So this isn't a problem. I doubt she's said anything like "no women or non white people are critics of mine." Regardless, nothing to do with her Kickstarter.01/31/2015 - 6:41pm
 

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