Photography / Arts / Design

Fair Use in Gaming Content – FAQS For Creators

By Simon Pulman and Mikaela Gross

Fair use is one of the most important – and most misunderstood – concepts in the area of copyright law. It is an important concept for anyone who is using content owned by third parties – which includes anyone who livestreams gaming, creates “let’s play” videos or otherwise uses gaming assets and branding. Unfortunately, there is a lot of misinformation on the internet and thus creators are often unclear about their rights and responsibilities.

With that said, here are answers to some frequently asked questions for creators:

What is Fair Use?

Fair use is an exception to the general principle that unauthorized use of a copyrighted work is copyright infringement. Simply put, if a claim of copyright infringement is brought against a defendant, the “defendant” can try to demonstrate they made a fair use of the allegedly infringed work in order to prevail in the case.

Because fair use is a defense, only a court can say whether a particular use of copyrighted material is a “fair use.” However, experienced attorneys can provide an opinion, based on their evaluation of the use using the four-factor test (see below) and their knowledge of case law.

What are the Four Factors?

Courts look at four factors when making a fair use determination

  • the purpose and character of your use
  • the nature of the copyrighted work
  • the amount and substantiality of the portion taken, and
  • the effect of the use upon the potential market.

The application of these four factors is nuanced and often complicated, but in short, the use of a copyrighted work is not likely to be fair use if it is used for the same or a similar purpose for which it was originally intended or in advertising/marketing materials, uses a lot of the original work including its most important parts (what the courts have called “the heart of the work”), and/or is used in a manner that competes with the market for the original work. It is more likely to be fair use if the new use is “transformative” in that it comments on, critiques, or otherwise adds new meaning to the original work in some way, if only a small portion of the original work is used (i.e., only enough for the user to make their point), and if the original work is not being used to advertise or otherwise promote the new work or use. So, if a video talks about, for example, loot box mechanics or the historical treatment of race in gaming by using game clips as examples, commenting on and analyzing those clips, it is probably more likely from a legal perspective to be fair use than straight game footage.

Note, however, that there is no bright line amount of use that constitutes fair use. For example, you can never assume that “if you use less than 5%, that’s fair use” – courts have found using only a line or two of text or music to be infringing. If you are in doubt, you should speak to a lawyer.

Is Crediting Important?

It’s nice, and may be considered best practices or industry custom, but it’s generally not relevant for a legal determination of fair use.

Can’t I Use a Disclaimer?

In short, no. Those disclaimers that you see on YouTube stating “This is a fair use. No copyright infringement intended” are generally not legally relevant. There is a small chance that they could be helpful to you in determining the damages that you owe in the event that you are found to be infringing, however, because they may bear on whether your intent was “innocent” or “willful.”

What if I get a DMCA takedown notice? And if a website removes my video, do I have any recourse?

The DMCA notice and takedown process provides copyright owners with a way to request removal of their copyrighted work from a website or other internet service if they believe the use infringes their copyright. To benefit from the “safe harbor” from copyright infringement the DMCA provides ISPs, the website or platform must designate a registered agent to receive and process DMCA takedown notices.  DMCA notices must include certain specific information to comply with the law, and the registered agent of the ISP has the job of reviewing and determining whether to comply with the takedown request.

An ISP, such as a platform that hosts gaming content, does not have to comply with a DMCA notice if the notice does not fully comply with the legal requirements for a takedown notice. However, if an ISP does remove content following receipt of a DMCA notice, it must also promptly notify the party that posted the video. That party then can file a counternotice if it believes the content was wrongfully taken down, for instance if the use of the copyrighted work is likely to be a fair use.

Whether you’re a platform looking to benefit from the protections of the DMCA safe harbor, or a content creator looking to correct an improper takedown of your video content, you should consult with an attorney to make sure you’re in compliance with the DMCA’s requirements, and are not taking any actions that could potentially subject you to liability down the line.

Will I Be Sued For My Videogame Videos?

This is where we have good news. Because video game publishers largely view streaming and game-related media to be helpful to their business (under the theory that exposing more people to the game will increase sales), publishers rarely bring copyright infringement lawsuits against gamers. The exceptions where publishers do bring legal action tend to arise in instances where users create new installments of games (what lawyers and courts would call “derivative works”) without authorization, insert other infringing material into games via mods, create and sell software “cheats,” or do something that is offensive in addition to being infringing (e.g., adding explicit or hateful material). In recent years, major players such as Take-Two Interactive and Epic Games have actively policed these types of infringements of their copyrighted games.

This means that it isn’t always necessary to apply the fair use analysis outlined above. However, those creators who are seeking to make heavy commercial use of game assets (other than solely streaming/YouTube video revenue) should consult with an attorney before embarking on their plans to ensure compliance with copyright law.

One of the greatest challenges in defending claims of copyright infringement in the gaming space seems to be the wildcard of the judge’s expertise and understanding of the emerging fields of gaming and streaming. A key defense strategy will inevitably involve a careful framing of the discussion, including describing how the game works, what the purpose of the video is, explaining the meaning of common terms, and the context and communities in which these activities exist online.

Moreover, everyone should keep an eye on the risk factors listed below.

What Red Flags should I be aware of?

While the use of gaming footage in the form of livestreaming and “let’s play” type videos rarely results in a claim, there are a number of uses that creators should be particularly cautious about:

  • Licensed music: Any game video that features licensed popular music is more likely to cause an issue with the game creators and/or the owners of the rights in the music being used. Creators are generally fine with exhibiting those videos on YouTube (which has a blanket license with multiple labels), but uses of music in other contexts or on other sites could trigger a DMCA takedown or a copyright infringement claim.
  • Choreography: Any videos that use choreography or dance moves tend to pose a higher risk. There has been a spate of recent choreography-related claims alleging that games have made unauthorized use of protected dance moves, in particular against Epic Games for the use of short animations in its game Fortnite. Choreography is probably an overlooked area (versus other areas of copyright risk) and thus it is not a fait accompli that the game publisher will have secured the rights, so a video creator could be pulled into a potential lawsuit. Obviously dance-focused games are highest risk, but other games that include “celebration dances” are also a risk. While many recent choreography-related claims have failed because copyright law does not protect simple routines or common social dances, they are nonetheless costly to defend and could become increasingly risky as the law develops in this area.
  • Street Art and Tags:  Videos that include any kind of pre-existing graffiti or tags, or even original designs that closely resemble a pre-existing artwork, are similarly susceptible to a copyright infringement claim. Street artists have become notorious copyright infringement plaintiffs in recent years, and like choreography, game creators may not have cleared the rights to these works. The unauthorized use of graffiti may also raise trademark and right of publicity claims, depending on the context in which the tag is used.  
  • Athletes and other Identifiable Real People: Any gaming footage that includes the recognizable likenesses of real people (e.g., sports games) is susceptible to a claim. This is not actually a copyright issue, but rather falls under what lawyers call “right of publicity” (i.e., a person’s exclusive right to make commercial use of their name [or alias], likeness and other identifiable features). User-generated content that inserts a real person into a game via a mod could also trigger a claim of this type, particularly from celebrities who regularly monetize their names and likenesses.

Chambers USA 2018 Ranks Partners Lackman and Wolff as Top IP Attorneys; Recognizes Two Cowan, DeBaets, Abrahams & Sheppard LLP (CDAS) Practice Groups

Cowan, DeBaets, Abrahams & Sheppard LLP is delighted to announce that partners Eleanor M. Lackman and Nancy E. Wolff and both CDAS’s Entertainment and IP, Copyright and Litigation Practices have been recognized by Chambers and Partners in the Chambers USA 2018: America’s Leading Lawyers for Business guide.

Eleanor M. Lackman

Nancy E. Wolff

This is the fifth consecutive year Ms. Lackman and the second consecutive year Ms. Wolff have been ranked in the Chambers USA guide. They are both among just 41 New York lawyers ranked in the field of “Intellectual Property: Trademark, Copyright & Trade Secrets – New York.”

“Impressed sources” told Chambers that Ms. Lackman is “an absolutely incredible trademark litigator” and added: “She is very practical and always seems to make the right call.” She also has notable experience handling copyright matters, often advising clients across the media and entertainment industries.

Chambers describes Ms. Wolff as “very well-known and well-respected.” She receives plaudits for her expertise in a range of complex copyright matters and is highlighted for her particular skill across the photography and visual art industry.

CDAS’s Entertainment Practice was awarded a regional designation of “Noted Firm” in “Media & Entertainment: Film, Music, Television & Theater – New York” for the third consecutive year, while the Firm’s IP, Copyright and Litigation Practice received a  “Noted Firm” designation in “Intellectual Property: Trademark, Copyright & Trade Secrets – New York” for the second consecutive year.

The annual guide ranks law firms and lawyers based on in-depth interviews with clients and lawyers, technical legal ability, professional conduct, client service, commercial astuteness, diligence, commitment, and other qualities most valued by the client.

A Coming Change: KodakOne Attempts to Prevent Unlicensed Use of Pictures

On January 9th, Kodak announced its intention to enter the cryptocurrency craze by developing a blockchain-based service that presumably allow participating photographers to get paid each time their licensed work is used on the Internet without their prior consent. As described on the company’s website, the digital platform, currently referred to as KODAKOne, will “provide continual web crawling to monitor and protect the [intellectual property] of images registered in the KODAKOne system.” Upon detection of an unlicensed use, Kodak will manage the post-licensing process and (i) have the picture removed, or (ii) compensate the participating photographer in the company’s own currency, referred to as KodakCoin. By December 11th, the company’s stock had more than tripled. Continue reading

Appellate Victory for “The Neighbors” Photographer against Right of Privacy Claim

Arne Svenson, a New York-based fine art photographer, prevailed on an appeal before the New York Supreme Court Appellate Division, First Department, filed by plaintiffs Martha and Matthew Foster, who had unsuccessfully sought to prevent the display, promotion, or sale of certain photographs from Svenson’s popular series “The Neighbors” by invoking New York’s right of privacy statute.  A unanimous panel of the court held that Svenson’s photographs – taken with a telephoto camera lens without his subjects’ knowledge – “is not actionable as a statutory tort of invasion of privacy” because “the images in question constituted art work and, thus [are] not deemed ‘use for advertising or trade purposes,’ within the meaning of the [privacy] statute.”  The court noted that the plaintiffs’ complaints were “best addressed to the Legislature” given the narrow scope of New York’s privacy law. Continue reading

Copyright Trumps Right of Publicity – Permitting Display and Download of Basketball Photographs (Maloney v. T3Media, Inc.)

The U.S. District Court for the Central District of California in Maloney v. T3Media, Inc. recently held that state right-of-publicity claims brought by former college basketball players complaining of photographs licensed of their likenesses without consent warranted dismissal with prejudice pursuant to California’s anti-SLAPP statute, which prohibits suits aimed at inhibiting free expression.  Members of the 2001 NCAA Division III champion Catholic University basketball team sued T3Media, a cloud storage, hosting, and digital licensing service, alleging violations of their rights of publicity when photographs of the players from the NCAA championship were displayed and made available for licensing on T3Media’s website.

Continue reading

CDAS Partner Nancy Wolff’s Webinar Available Online

Recently, CDAS Partner Nancy Wolff hosted a webinar for the Digital Media Licensing Association which answered common questions about when you need releases when using visual images. The webinar is now available online for free, and is a useful resource for anyone publishing or displaying still or motion images and wondering whether permissions are needed from the subjects or property owners depicted in the content. The webinar footage can be found here.

Seventh Circuit Affirms Fair Use of Mayor’s Photograph, and Criticizes Second Circuit’s Approach in Cariou v. Prince

Note: This blog is cross-posted with permission from CopyrightAlliance.org.

Photographer Michael Kienitz (“Kienitz”) appealed the Western District Court of Wisconsin’s decision to grant summary judgment in favor of Sconnie Nation LLC and its vendor, Underground Printing-Wisconsin LLC (collectively, “defendants” or “Sconnie Nation”), contending defendants were liable for copyright infringement in connection with their unauthorized use of plaintiff’s photograph. Michael Kienitz v. Sconnie Nation LLC and Underground Printing-Wisconsin LLC, No. 13-3004 (7th Cir. Sept. 15, 2014). The Seventh Circuit affirmed the district court’s decision, agreeing that defendants’ use of the photograph constituted a fair use. The central issue in this appeal was whether the Sconnie Nation had a valid fair use defense for its modified version of Kienitz’s copyrighted photograph. Continue reading

Copyright on the Wild Side

With a Push of a Button, Monkey Raises New Question About Copyright Authorship and Ownership of Photographs

It’s been theorized that if you give a million monkeys a million typewriters, they will eventually produce the entire collected works of William Shakespeare. It’s been proven, however, that if a troupe of monkeys steals a camera, one will eventually take a really good selfie. By now you’ve probably heard this story, but just in case, the facts are as follows.

In 2011, British wildlife photographer David Slater traveled to the forests of Indonesia, equipment in tow, to follow and photograph the endangered crested black macaque species of monkey. According to news reports, during his trip, Slater set up his camera and tripod and briefly stepped away, and when he came back, a group of macaques had, in the words of The Telegraph, “hijacked” his camera, ultimately taking hundreds of shots. Many of the shots were, as expected, blurry or otherwise unusable, but several actually came out quite well, including a crystal-clear selfie of a female macaque showing off her large amber eyes and huge toothy grin. Slater sold the image to several publications, and soon the story – and the selfie – caught fire in the media, filling inches in the Guardian, the Telegraph, and the Washington Post, among other media outlets. The selfie soon ended up on Wikimedia Commons (owned by the parent company of Wikipedia), which is advertised as a repository of over 22.3 million free public domain images. Continue reading

Registration of Collective Work Registers Component Works, Says Ninth Circuit

Appellate Court Finds that Stock Agency Can Proceed with Lawsuit Involving Registered Works

On March 14, the U.S. Court of Appeals for the Ninth Circuit, in Alaska Stock, LLC v. Houghton Mifflin Harcourt Pub. Co., 110 U.S.P.Q. 2d 1062 (9th Cir. 2014), determined that registration of a database of stock photographs as a collective work registered the component photographs within. Continue reading

Photo of Glass Sculpture Integrated in Ceiling a Fair Use

In Neri v. Monroe, 11-CV-429-SLC, 2014 WL 793336 (W.D. Wis. Feb. 26, 2014), the Western District of Washington smashed the hopes of a glass artist by sharply dismissing a pro se copyright action she brought against a design firm, among others, who displayed photos of an entrance hall of a private residence which incorporated her artwork.  The court found the photo display to be fair use.  The judge made his low opinion of the case abundantly clear, saying, “The bottom line is that, after the court has culled out plaintiff’s unfounded legal conclusions, rank speculation and unsupported assertions, the few material facts that remain fall far short of establishing their claim of copyright infringement.” Continue reading

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