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.)

--B

Art Galleries and Catalog Images

If you've ever received an art gallery catalog, I'm sure the same question has occurred to you that occurs to me every time. To wit, "on what basis do these galleries and auction houses
publish on-line or electronic catalogs of this visual art without permission from the copyright holder? Or even the print catalogs, really?" (For an example, go to the Christie's site and find your way to a catalog; I don't want to permalink anything, because they change.)

What, that's never occurred to you? Honestly? Yeah, me neither. But it did come up on a mailing list in which I'm involved. For a group of lawyers with IP backgrounds, I'll be honest, I was a little disappointed by some of the analysis. (Except for mine, of course. My analysis was brilliant!)

The various ideas that were floated included fair use and "public display." Fair use is relatively well known, and comes up on the internet a lot. Public display is what you might think, though it comes at it backward. That is, there is a right [under Section 106(5)] ostensibly exclusive to the copyright holder to display a work publicly, where both display and publicly are terms of art, subsuming everything you might normally think falls into those definitions and then a little bit extra. However, that right is limited by Section 109(c), which allows the owner of a lawful copy of a given work to display that work publicly, "either directly or by the projection of no more than one image at a time, to viewers present at the place where the copy is located."

In other words, that really funny New Yorker cartoon you have on your office door? Section 106(5) would prevent you from putting it up there, except that 109(c) comes to your rescue.

Public display gets a little trickier when it comes to certain works of visual art that require some element of reproduction in the display. The way it's taught is in terms of some of the more modern art pieces that involve a video display element or the like; in such a situation, the public display right entitles the owner of the work (not the copyright, mind you) to engage the video display element even though there might be some otherwise-verboten reproduction involved. Public display doesn't generally include the broadcast of audiovisual media.

A more salient (and possibly more controversial) application would be where a piece of art requires, for security or conservation purposes, that it be displayed (for instance) via audiovisual reproduction. So some artist makes a painting on... I dunno, dry ice. The only way to see (for more than however long it might take to otherwise sublimate) it is to put it in some special freezer and point a camera at it and look at on a monitor. It's fairly uncontroversial, though not entirely uncontested, to say that the display of the work on that monitor by the owner is allowed under Section 109(c), even though that might involve a sort of reproduction.

All of which is by way of a tangent, really, just to explain the possibility raised by some that the electronic and/or paper catalogs were permitted under 109(c).

Which proposition, I should say, I think is a bit daft. First off, 109(c) is explicit in its limitation to "no more than one image at a time, to viewers present at the place where the copy is located." Second, if you think about it, that would be an exception that swallows the rule. On that understanding, pretty much any time someone made copies of something that other people wanted to see and distributed same, online or in print, the claim would be that it was distribution of the originally purchased copy of the work. Which is sort of one of the paradigm cases of infringement, isn't it?

So it's not Public Display. Fair Use, then? Again, I don't think so. Running through the four-factor test shouldn't be too difficult.

We just need to more clearly define the possible infringement.

(1) It's not at all transformative. You might argue that the catalog information on the page adds some sort of value or information, but that's a bit specious. (2) Except in rare instances, we're probably talking about something "fictional," which is to say that art is more fanciful than the reporting of facts (even photography). (2a) There is the mitigating factor that it's 'published,' but I don't think that really does too much work here. (3) The taking is of the whole of the creative/infringed work, and certainly the "heart" of it - if the catalog photo wasn't sufficient to reproduce at least the core of the painting in question, it wouldn't be much good as a catalog photo.

The only thing working in favor of Fair Use would be (arguably) the fourth factor. It's the one time an alleged infringer could make that "I'm doing you a favor" argument with a straight face. The purpose of a catalog is, ostensibly, to *assist* the copyright owner in gaining income and to *support* (or create) the market for the copyrighted work.

But the fourth factor is no longer the first among equals that it used to be, and even if it were, I think the other three win.

So, if it's not Public Display and it's not Fair Use, why aren't artists suing the various galleries left and right for copyright infringement?

I think there are two factors in play, one practical and one legal. The practical concern is on the lines of biting the hand that feeds you. The artists with a claim have that claim because there's a gallery (or auction house) out there trying to sell their work; It would be ungrateful, and more importantly unwise for the artist to turn around and sue the gallery for the catalog that represents that effort.

The legal doctrine on which these galleries and auction houses rely, I think, must be implied license. That is, once the artist or copyright holder gives the piece over to the gallery or auction house, then there is implied in that act the copyright holder's license to the gallery or auction house to make what reproductions might be standard in the industry, including reproduction in catalogs, etc.

It becomes a little more complicated when we consider that very often it's not going to be the original artist who's commissioning the gallery or auction house to make the sale. I don't really have a convincing argument for why the erstwhile buyer (now reseller) can grant the kind of license we've been talking about. You could make an argument if pressed - it would be what we in the trade call "not sanctionable" - to the effect that the original copyright-holder's implied license extended to include those reproductions necessary for resale.

That last argument is the best I can come up with, weak though it is. Either way. I'm confident that what's at work is not the 109(c) public display and not fair use. The implied license works well when the grant is from the original copyright holder. And then that last... But there it is.

Have a good one.

--B