Tuesday, December 1, 2009

Fair Use of Videogame Screens

I'm showing my geek roots, here, but it's not like I've been hiding that.

I came across this article which pointed me to three recent paintings by Brock Davis (a/k/a Laser Bread), all of which are the painter's takes on some classic videogames.

I'll put the game names at the bottom, because it should take about half a second for gamers of a certain age to recognize these.

And for those of you think of gaming systems [obSnydeQuipMaskingJealousy], that's Dig Dug, Donkey Kong, and Missile Command.

The geek in me abso-lurves these, for aesthetic and nostalgic value. The lawyer in me went directly to the fair use analysis.

There's no question that the iconic videogame screens that these paintings are based on are subject to copyright. Actually, there is some question, as it can be argued that the Missile Command and Dig Dug screens were jointly created by the end user, but that's a question for another post. Let's just take that point as read.

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 (taking a more controversial reading of the fourth factor) the potential derivative market for the games. That's factors one and four in favor of fair use. Factor four used to be the "first among equals," more recently the question of "transformative use" is filling that role, but in this case both cut in favor of finding fair use.

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. But these are relatively weak and would bow in any event to the determination mandated by factors 1 and 4.

Another question would be the trademark implications. These images are, I would posit, fairly iconographic, and each of the screenshots then very likely identify a source (Namco, Nintendo, Atari respectively) The proof is in the pudding, in that (as noted) gamers of a certain age probably recognized the game identities from the paintings without any difficulty.

I don't have a link, but I recall seeing sites where you can submit a digital image and get a painting. Presumably to different levels of abstractness. In which case 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.

Fair use analysis in trademarks tends to concentrate on the whole "nominative use" question, but that won't do any work for us here. Trademark fair use as a doctrine is mainly concerned with trademarks that are also words in the language and limitations on the extent to which trademark rights can curtail the use of language. Which, sadly, also doesn't do much work for us here.

So on a purely doctrinal level, it seems that the game makers could make at least an objectively reasonable (not Rule 11 sanctionable) trademark infringement case against the artist, claiming that consumers might mistakenly believe that the game maker had sponsored the painting. And his defense would have to be "no they won't," which is a poor defense in that it doesn't do any work pre-trial, or at least pre-survey -- which is to say pre-expensive.

The saving grace for Mr. Davis 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.

I think that's the right answer on the law, but it disappoints me on the facts. There should be space in the law for exactly this kind of expression. I touch on this briefly in my post about the Carol Burnett - Family Guy dustup here. And this is another example of where the conversation of our world is being impeded by the very laws that were intended to protect that conversation (albeit a different facet of that conversation.)


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Blogger Joseph B. Hewitt IV said...

Not to long ago I created some images inspired by "Adventure" on the Atari 2600 that I wanted to put on t-shirts on Cafe Press. In the end I backed away precicly because I wasn't comfortable with my knowledge of how that would sit with IP law even with it being such and old product.

On one hand I thought if anything, it would serve to advertise the product in recalling nostalgia, but on the other hand I'm sure the IP owners' lawyers wouldn't care.

I'm also reminded of how the guys at Penny Arcade tried for awhile to pierce the corporate wall around Namco to see if they could produce a Pac-Mac t-shirt like Gabe wears in the comic strip, but failed to find anybody they could even talk to about it. I am sure they thought about just doing it, and then just dealing with the aftermath of whatever happened, but seeing at they have somehow managed to morph into a somewhat respectable and profitable entity, they wisely decided to ditch the idea. Shame, I'm sure it would have sold very well and been a hit for both them and Namco.

December 3, 2009 12:55 PM  
Blogger Deb Schiff said...

How cool are you?! I've just spent the fall semester dealing with copyrights and fair use regarding digital collections within libraries and other cultural institutions. Made me think I should have gone for copyright law instead.

December 14, 2009 3:53 PM  
Blogger Ben D. Manevitz said...

Joseph -- yeah, there's very little that gets up the hackles of an IP lawyer like the "I was doing you a favor! Free advertising!" argument.

('gets up the hackles of...' is that even English?)

But having said that, there *is* room - or at least I think there ought to be room - for the course of conduct where you try something, and if it ticks of the lawyers then you back away.

The fact that Gabe wears the Pac-Man T-shirt (see: http://is.gd/5wlXx) raises an issue almost identical with Penny Arcade actually making the t-shirt, but that's for another time.

Deb Schiff -- I am, in fact, that damn cool. But only a shadow of the cool that you are, apparently - 6 blogs and a info sciences/librarian! Beat that! (How come so many of the most excellent people I know go on to be MILS folk?)

December 21, 2009 12:40 PM  
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