THE COPYKAT

A Grand Theft Auto V 'cheat maker' has been ordered to pay $150,000 in copyright damages: Rockstar Games' parent company Take-Two Interactive has won a default judgment against the developer of the GTA V cheat maker "Elusive". The Florida-based defendant has been ordered to pay the defendant company $150,000 - the maximum that could be awarded as copyright infringement damages. Take-Two Interactive Software, the company behind ‘Grand Theft Auto V’ (GTA V) has filed several lawsuits in the US and abroad, targeting alleged cheat software. It was last August the company filed a case against Jhonny Perez, accusing him of copyright infringement by creating and distributing a cheating tool. Elusive could be used to cheat and allegedly interfere with other game players. With the defendant apparently ignoring offers of a setlement, Take-Two filed for a default judgment. Take Two say that the software represents both direct and contributory copyright infringement. “Take-Two has been irreparably harmed by Mr. Perez’s infringing conduct and will continue to be harmed unless enjoined” US District Court Judge Kevin Castel wrote, adding “Mr. Perez’s Elusive program creates new features and elements in Grand Theft Auto which can be used to harm legitimate players, causing Take-Two to lose control over its carefully balanced plan for how its video game is designed to be played,” he writes. In addition, the Judge noted that the cheat discouraged users from future purchases and gameplay and that the unlimited currency cheat undermined Take-Two’s pricing and sales of legitimate virtual currency and found the cheat maker guilty of both wilful direct and wilful contributory copyright infringement, as well as breaching Take-Two’s user agreement. The Court ordered Perez to may the maximumstatutory damages of $150,000 and an additional $66,868 in attorney’s fees. 

The US Olympic Committee  (USOC) is being sued copyright infringement. Kevin Downs, a professional photographer, has filed his lawsuit against against the USOC in the U.S. District Court for the District of Colorado, alleging that a photo he captured at an outside table tennis match in New York City has been used without his permission. The photo, attached to Downs’ Complaint as an exhibit, was previously registered by Downs with the U.S. Copyright Office. Downs complains that the USOC ran an article on the TeamUSA.org website featuring the copyrighted photo without Downs’ consentbut with a credit that reads, “Daily News/Kevin C. Downs.” Does that give USOC the right to republish the image: it is a sign of good faith? But what is the right to good faith in the US? Whilst Downs may have missed out on a potential licensing fee in this case, the image does not seem to be so important for the purpose of the article that it was a necessary element that the publisher benefited from to any great extent. Downs’ photograph was a public work that was used as part of an article that disseminated facts and information to benefit the public. The article was informing the public that the streets in Midtown New York City were car-free in order to provide for outdoor festivities, including ping pong. The picture demonstrates the performance of ping pong on the streets. While Downs may have a perfectly viable copyright on his photograph, it does not necessarily mean he has the best case against the USOC in this instance - does it?

 A Las Vegas artist has accused pop star Ariana Grande of using imagery from his paintings, without his permission, in the singer's "God is a Woman" music video. The artist, Vladimir Kush, filed a federal lawsuit forcopyright infringement in Nevada. In the lawsuit, Kush asserts Grande's imagery in her music video was "nearly identical" to his paintings and the minor differences Grande has made "does not change the viewers' impression." The scene in Grande's music video that Kush has claimed copyright for depicts the singer as a candle wick while a bright flame surrounds her. Light from the candle flame radiates out against a blue, cloudy sky. The scene appears a little over a minute into the music video. Both of Kush's paintings, "The Candle" and "The Candle 2," portray a woman's silhouette as the wick of a large candle. Kush obtained copyright for the paintings in 1999 and 2000 and according to the lawsuit. "While there are many ways to depict a woman dancing in the wick of a candle – even with a heavenly background – Defendants clearly copied Mr. Kush’s expression of this idea," the lawsuit said. Kush's attorneys said in the lawsuit the video director and production team for "God is a Woman" have faced at least two previous copyright infringement lawsuits from other artists. The lawsuit has asked that Grande remove the video from the Internet. Kush was also seeking damages and attorney's fees.

A 70-year-old UDS man accused of downloading the Hitman movie through torrent not only denied the charges but he then took legal action to fight back. Perhaps unsurprisingly, the plaintiffs dropped the case, and the court dismissed it, BUT the court promised to re-evaluate the way it handles such cases. Whilst the defendant and his lawyer were disheartened with the dismissal, is there still a chance to push things further?

Kodak is in the photography news - but for all the wrong reasons: Kodak launched an on-demand photography service called Kodakit back in January 2017 that aims to connect photographers to brands looking for photography. But there’s something all photographers need to know about this “Uber of photography,” as it’s been called: it demands that the snapper signs over the “entire copyright” to the photos they shoot. - they even need permission to use them for their own portfolios!

Wild Wild Country directors Chapman and Maclain Way, Duplass Brothers Productions, and Netflix have been sued by the Osho International Foundation, a group that promotes the teachings of the documentary’s subject, controversial Indian guru Bhagwan Shree Rajneesh (aka Osho). Osho International claims a number of their copyrighted videos were used without permission. Filmmaker Michael Hilow, another plaintiff in the lawsuit, says footage from his 1993 documentary Rajneeshpuram an Experiment to Provoke God was also used without his permission. Osho is described in the complaint as a Swiss company that publishes, licenses and archives the work of Bhagwan Shree Rajneesh, the controversial guru at the centre of the Netflix series. Hilow directed a 1993 documentary Rajneeshpuram an Experiment to Provoke God. It seems scenes from that film, along with three works controlled by Osho International, are shown in Wild Wild Country and it is alleged that the first episode alone contains 88 separate "instances of appropriation," totaling more than 12 minutes. Wild Wild Country tells tells the story of a controversial guru who builds a utopian city in the Oregon desert, it causes a massive conflict with local ranchers. Osho International and Hilow are asking the court to grant an injunction barring Netflix from further infringing their copyrights and are seeking damages and disgorgement of the streamer's profits. It is asking the court to grant an injunction “permanently restraining and enjoining [Netflix], their officers, agents [sic] employees, and attorneys, and all those persons or entities in active concert or participation with them, or any of them, from further infringing” the foundation’s copyrighted works.” The company is seeking damages and disgorgement of Netflix’s profits. Its suit is just the latest alleged charge of copyright infringement to hit the streaming service in recent months.

Has a UK company copyrighted Kenya’s national anthem? A YouTuber has reignited discussion on the Kenya national anthem’s ownership rights after revealing how a UK based company has claimed copyright. De Wolfe has published an orchestral arrangement of Kenya’s national anthem that it states was created in 1990. Kenya Copyright Board (Kecobo) has responded, explaining  that Kenya’s national anthem had copyright that lasted for 50 years. This lapsed in 2013. Further, the Copyright Act has not been amended clarify the right to juse the work -  but that the use of such works IS subject to authorization as required under the National Flags, Emblems and Names Act. “Kecobo is at the moment studying the terms and conditions in YouTube platform with a view of requesting for a take-down of all content offending the National Anthem by the said Company and others as well,” the board added.

“Agreementreached on copyright" ! Europeans will finally have modern copyright rules fit for digital age with real benefits for everyone: guaranteed rights for users, fair remuneration for creators, clarity of rules for platforms” EU digital chief Andrus Ansip has said in a tweet - although not everyone agrees! 

Under the planned new rules, Google and other online platforms may well have to engage with rights holders to use their work online, and Google's YouTube and Facebook’s Instagram and other sharing platforms will be required to install upload filters to prevent users from uploading copyrighted materials.Google, which has lobbied intensively against the planned legislation has said it may pull Google News from operating in Europe, but said it would study the text before deciding on its next steps. “Copyright reform needs to benefit everyone - including European creators and consumers, small publishers and platforms ... The details will matter,” the company said in a tweet. Spain and Germany had in recent years tried to force Google to pay publishers for taking snippets of their news articles, but that backfired after Google News pulled out from Spain and traffic of German publisher Axel Springer plunged after it sought to block the search engine. EU lawmaker Axel Voss said it was time internet giants pay their dues to rights holders: “This deal is an important step toward correcting a situation which has allowed a few companies to earn huge sums of money without properly remunerating the thousands of creatives and journalists whose work they depend on,” he said. However, MEP Julia Reda from the Pirate Party again voiced concerns, saying that algorithms in upload filters cannot tell the difference between copyright infringements and legal parodies. “Requiring platforms to use upload filters would not just lead to more frequent blocking of legal uploads, it would also make life difficult for smaller platforms that cannot afford filtering software,” she said. Online platforms in existence for less than three years and with less than 10 million euros in revenue and fewer than 5 million monthly users are exempted from installing upload filter. Nonprofit bodies, online encyclopedias such as Wikipedia, and open source software platforms such as GitHub will be able to use potentially valuable data for research and educational purposes without being subjected to the copyright rules. “It will become much harder for users to share their own, non-commercial music, video or photo creations online. This reform is not based on the reality of how people use the internet,” its deputy director general, Ursula Pachl, said. The agreement needs approval from the European Parliament and EU countries before it can become law. The European Parliament's legal affairs committee has voted through the final draft of the European Copyright Directive, with sixteen votes in favour and nine against. The JURI committee was expected to  back the final draft of the copyright reforms, which now face a vote the full Parliament - and whilst this is expected to be a formality, it is still not guaranteed to pass the draft Directive.

With many thanks to  Akshat Agrawal for all of his work on this CopyKat

I thought I saw a COPYKAT ..........

Can Embedding a Tweet Result in Infringing Copyright?

The US Federal Court in New York ruled that it is possible to infringe the copyright by a simple action of embedding a tweet on a website. The case concerned a photo of Tom Brady (New England Patriots quarterback) with Boston Celtics’ General Manager Danny Ainge, which was taken by Justin Goldman and posted on his Snapchat. Shortly thereafter, the photo went viral and was uploaded by a number of users on Twitter. Since the story was newsworthy, a number of news organisations have embedded the link to these tweets on their websites. Goldman has filed a lawsuit against a number of online publications including Yahoo, Time and the Boston Globe for violating his exclusive right to display.

Following the 9^th Circuit case Perfect 10 v Amazon, the general position of the US courts has been that the copyright liability rests with the entity that hosts the content that is infringing copyright on its server (the so-called ‘Server Test’), and not the party who links to that material.  According to 17 U.S. Code § 106(5) the author has the exclusive right to ‘display the copyright work publicly’.  Judge Forrest in her summary judgment has rejected the Server Test by saying that “when defendants caused the embedded Tweets to appear on their websites, their actions violated plaintiff’s exclusive display right; the fact that the image was hosted on a server owned and operated by an unrelated third party (Twitter) does not shield them from this result”. Additionally, she noted that the Copyright Act does not suggest that “possession of an image is necessary in order to display it. Indeed, the purpose and language of the Act support the opposite view”.

This decision, together with the potential appeal, is important for all producers of digital content. According to Defendants the Court’s ruling may “cause a tremendous chilling effect on the core functionality of the web”. On the other hand, the judge has observed that there are some questions whether publication of a photo on Snapchat means that the copyrighted work is effectively released into the public domain.

The US Copyright Office is Considering Exemption for Online Games

Following the last year’s petition the US Copyright Office is looking at the introduction of the exemption that would ease current Digital Millennium Copyright Act (DMCA) anti-circumvention provisions (renewed every 3 years) in relation to preservation of abandoned video games. Previously, museums, libraries and archives were able to preserve abandoned games by having a right to use emulators and other circumvention tools to make old games playable and keep them accessible. Now, several organisations, including non-profit Museum of Art and Digital Entertainment (MADE) requested for an additional exemption that will allow preservation of online video games. There is a big number of MMPORGs (Massively multiplayer online role-playing games) such as Star Wars Galaxies or City of Heroes, where copyright owners have decided shut down their servers and games cannot be played online anymore.  

On the other hand, major game publishers such as Electronic Arts, Nintendo and Ubisoft have asked the US Copyright Office not to create such exemption. The companies, represented by Entertainment Software Association (ESA), have opposed the proposed changes with a view that such exemption will allow other users to “recreate online game environments using server code that was never published in public”. This may allow ‘affiliates’ to replicate the game and allow everyone in the public to play them, activity for which the companies were previously charging their users. Additionally, as observed by ESA, MADE already charges the general public for the access to the museum, where the users can play the games for the whole day for a fee of $10. The Association says that “public performance and display of copyrighted works to generate entrance fee revenue is a commercial use”, within the meaning of Section 107 “even if undertaken by a non-profit museum”. With a growing market and popularity of retro video games, the US Copyright Office will have to consider arguments of both sides and decide whether to introduce this exemption.

Council of the European Union Authorised Ratification of the Marrakesh Treaty

The Council of the European Union, 12 months after the decision of CJEU that the European Commission had an exclusive competence to conclude agreements which affect common rules already in place (here European Copyright legislation), has adopted a decision to approve the ratification of the Marrakesh Treaty.

The Marrakesh Treaty to facilitate access to published works for persons who are blind, visually impaired, or otherwise print disabled, administered by WIPO, entered into force in September 2016. The agreement provides for set of international rules that ensure exceptions in the copyright law so that “blind and visually-impaired people (VIPs) can access cultural materials like books without hindrance” and governs cross-border exchanges. As an effect the publishers can lawfully reproduce materials in a format accessible for VIPs without the fear of being sued for copyright infringement. Following the ratification of the Treaty by the EU later this year, the Member States will be required to introduce adequate exception into their own national laws.

Legislative Amendments in Sweden Can Lead to Six Years Imprisonment For Online Pirates

Since the Pirate Bay saga (more on it here) the prosecutors in Sweden have called for a tougher approach towards serious breaches of copyright law. The Swedish penalties comparing to those on the international level were considered to be low. Therefore, the Council of Justice in its report has proposed legislative changes that would create new criminal classification and crime divided into two levels, depending on its seriousness.

At the first level “[a] person who has been found guilty of copyright infringement or trademark infringement of a normal grade may be sentenced to fines or imprisonment up to a maximum of two years.” Whereas, in the case of large-scale infringement “a person may be convicted of gross copyright infringement or gross trademark infringement and sent to prison for at least six months and not more than six years”. To assess whether the crime was of ‘gross’ degree, under the new proposal the courts will take into account the amount of damage caused to the rightsholders, as well as any monetary gain made by the defendants.

The proposal also envisages the possibility of seizing property, either physical or intangible, such as domain names. As reported by TorrentFreak “’[t]his proposal is a clear nod towards the Pirate Bay case which dragged on for several years before the state was able to take over its thepiratebay.se domain”.

The proposed date for the amendments to enter into force is 1 July 2019.

Debate in New Zealand Over Achieving Modern Balance of Copyright Law

Having recently observed a number of calls in Australia to reform its current copyright law framework and make it more suitable in the age of digital technologies, our attention turns now to New Zealand. Here, in June 2017 the Government has launched a review of Copyright Act 1994 to ensure that the “copyright regime is fit for purpose in today’s rapidly changing technological environment”. Recently, InternetNZ (a non-profit organisation) has launched a position paper, in which it seeks to update the copyright law framework and achieve a modern balance. As noted by the organisation, each new technology for copying that was introduced in the past years with the use of the internet (such as data and text mining, cloud computing), has been blocked due to lack of technology neutral exceptions to the copyright. InternetNZ CEO, Jordan Carter says that “the Internet has opened up new opportunities for creative New Zealanders”. Nevertheless, at the same time, uses of technology like cloud back-ups are likely to infringe copyright. Hence, in the view of InternetNZ, the new reform should introduce a more flexible open-ended ‘fair use’ style exceptions that will enable predictability in the use of copying technologies based on the ‘fairness’ test. The authors of the report suggest that the reform of copyright framework should aim to find a modern balance that will allow “the full benefits of both modern technology and local creativity”.

US Judge Dismissed the Copyright Lawsuit Against Taylor Swift

The US District Judge Michael Fitzgerald dismissed the action in the lawsuit brought by 3LW against Taylor Swift for stealing lyrics for the chorus of her song ‘Shake It Off’. The songwriters in their copyright infringement action claimed that the Taylor Swift’s song was based on the phrase "players, they gonna play, and haters, they gonna hate”, which was used in the song "Playas Gon' Play" by R&B girl group 3LW in 2001, and that combining those two ideas was original enough for the protection.

According to the Judge the lyrics in order to be protected by copyright must be more creative. He wrote that “the allegedly infringed lyrics are short phrases that lack the modicum of originality and creativity required for copyright protection”. In his view “combining two truisms about playas and haters, both well-worn notions as of 2001, is simply not enough”. He added that “the lyrics at issue (...) are too brief, unoriginal, and uncreative to warrant protection under the Copyright Act”. The songwriters were given the opportunity to file an amended lawsuit, however, as reported by CNBC, the attorney for songwriters would appeal Fitzgerald’s ruling to the 9th US Circuit Court of Appeals.

Claims Against ‘The Shape of Water’ Before the Oscars Ceremony

With only few days left before the 90^th Academy Awards ceremony, amid the voting of the Academy, authors of ‘The Shape of Water’, Guillermo del Toro and Fox Searchlight were sued for allegedly copying the idea for their film.  According to the family of the late Pulitzer Prize-winning author Paul Zindel, the story of inter-species love has copied a number of copyright protectable literary elements from the plot of ‘Let Me Hear You Whisper’ play. The play as described by Daniel Zindel “also depicted a lonely cleaning woman who works at a lab, bonds with an aquatic creature and breaks him out after learning authorities planned to kill him”. 

Del Toro explained that the story of the film “and the layers are completely and entirely complex, interwoven with Russian spies, the Cold War, female friendships that are so complex and more important than that, which are completely original”. The lawsuit for copyright infringement came after the film has received 2 Golden Globe Awards and 13 nominations for the Academy Awards. Fox Searchlight in its statement said that the claims brought against them are “baseless, wholly without merit” and with a view to pressure the studio to quickly settle.  

The 13th Annual International Intellectual Property Lecture: Copyright and Property-Think

Professor Jessica Litman

On 13^th March 2018, the Centre for Intellectual Property and Information Law (CIPIL) is holding its Annual International Intellectual Property Lecture at Emmanuel College, Cambridge. In this year’s lecture Professor Jessica Litman, John F. Nickoll Professor of Law at University of Michigan Law School, will argue that when we think about the copyright system, our assumptions about legal property rights shape what we see and what we don’t. We assume that broadening or narrowing the scope of copyright will redound to the benefit or detriment of creators. Three hundred years of evidence, though, belie that supposition. We need to think more concretely about copyright law's actual effect on creators, and their ability to communicate and profit from their works.

This is an invitation-only event which will take place on Tuesday 13^th March 2018 at 5:30pm. If you would like an invitation, or for further information, please contact CIPIL Administrator, Mr. James Parish [email protected]

This CopyKat by Matt  Rachubka

Law Professors Amicus Brief Filed in Support of Take-Two Interactive

Professor Eugene Volokh and his Scott & Cyan Banister First Amendment Clinic at UCLA School of Law recently filed an amicus brief on behalf of several law professors in the Lindsay Lohan v. Take-Two Interactive case currently pending at the New York Court of Appeals.

Lindsay Lohan sued in 2014 Take-Two Interactive, the maker of the “Grand Theft Auto V” video game, claiming that it had used her image when creating the character Lacey Jonas, see here and here, and thus violated her right to privacy under New York Civil Rights Law § 51 by misappropriating her likeness.

Reality show star Karen Gravano filed a similar suit, claiming that the character Andrea Bottino was modeled after her.

Both of these actions failed, as Take-Two did not use Plaintiffs’ names, portraits or pictures. The game did not refer to Plaintiffs by name, did not use their actual names in the video game, did not use them as actors, and did not use their photographs either, see here. Plaintiffs have appealed.

Characters are protected by the First Amendment

The brief concentrates on the free speech issue, arguing that video games are expressive works and thus protected by the First Amendment.

The authors of the brief argue that “[c]elebrities like Gravano and Lohan are significant parts of that “popular culture,” and Take-Two must be free to use even their literal names

and likenesses (as was done in Forrest Gump, for example) to capture the essence of that culture.”

The brief cites  the Comedy III Productions, Inc. v Gary Saderup, Inc., where the California Court of Appeals found that the right of publicity “has the potential of censoring significant expression by suppressing alternative versions of celebrity images that are iconoclastic, irreverent, or otherwise attempt to redefine the celebrity’s meaning.”

New York law only protects against unauthorized use of likeness in trade

Authors of the brief also argued that the New York right of privacy is generally limited to commercial advertising, and does not extend to creative works.  Indeed, New York state does not recognize a common law right of privacy, only a statutory right of publicity, and New York right of publicity statute only forbids the use without consent of a person’s name, portrait, picture or voice “for advertising purposes or for the purposes of trade.”

The New York courts have consistently interpreted the law narrowly and the Appellate Division held in September 2016 that the Grand Theft Auto V video game, “does not fall under the statutory definitions of ‘advertising’ or ‘trade.’”

The authors of the brief also argue that only explicit use of a person’s name or likeness is protected by New York right of publicity statute. A mere suggestion is not enough.

A recent attempt to expand the scope of New York right of publicity law

The New York Legislature is trying to expand the scope of New York right of privacy by enacting Assembly Bill A08155. The bill would make the likeness of an individual a personal property, freely transferable.

It defines the “likeness” of an individual as “an image, digital replica, photograph, painting, sketching, model, diagram, or other recognizable representation of an individual's face or body, and includes a characteristic.” A “characteristic” is defined as “a distinctive appearance, gesture or mannerism recognized as an identifying attribute of an individual.”

Is a video game protected by the First Amendment?

The bill has not been enacted. Plaintiffs’ claims may prosper under this law, or may not, as it provides a First Amendment defense. The main issue would then no longer be whether the creators of the game indeed used Plaintiffs’ likenesses, but whether a video game is worthy of the protection of the First Amendment.

Plaintiff Gravano seems to have anticipated this hypothesis, as she argues that “a video game that is primarily a commercial product [is] not afforded absolute protection as a creative work.”

However, authors of the brief cite the Supreme Court City of Lakewood v Plain Dealer Publ’g Co where the court explained that “the degree of First Amendment protection” of speech “is not diminished merely because the . . . speech is sold rather than given away.”

Stay tuned…

Image courtesy of Flickr user Fred Miller under a CC BY-SA 2.0 license.

Hoops, Tattoos, and Video Games

Football season ended in the U.S. last Sunday with the Super Bowl (Denver won), and baseball season (alas!) has not started yet. Basketball season is in full bloom (go Knicks!), but will end in the Spring.

But basketball fans may assuage their end-of-season blues by playing basketball video games all year long. These games features digital versions of the current players, and thus are regularly updated. Last fall, video game company 2K Games, Inc. (2K) released the 2016 version of its annual basketball video game, NBA 2K16. Four million copies were sold its first week on the market.

The game reproduces the likeness of basketball players. Some of them, LeBron James, Kobe Bryant, Eric Bledsoe, DeAndre Jordan, and Kenyon Martin sport tattoos in real life, and their digital representation sport the same tattoos in the NBA 2K16 game, as they already did in the NBA 2K14 and the NBA 2K15 games.

The design of these tattoos had been created by several artists who later signed licensing agreements with Solid Oaks Sketches, LLC. (Solid Oaks). Following the release of the NBA 2K14 and NB 2K15, Solid Oaks engaged in a negotiation with 2K in July 2015, in anticipation of the September release of NBA 2K16, as it believes that, by reproducing the tattoos in its video games, 2K infringed Solid Oaks ’copyright.  

The negotiation fell through and, on February 1, 2016, Solid Oaks filed a copyright infringement suit in the Southern District of New York (SDNY) against 2K, game publisher Take Two, and game developer Visual. The case is Solid Oaks Sketches, LLC. V. Visual Concept, LLC and 2K Games, Inc., and Take Two Interactive Software, Inc., 1:16-cv-00724.

Are Tattoos Protected by Copyright?

The designs at stake are all registered with the Copyright Office, as tattoo artworks. What about the real tattoos?

Plaintiff argues that tattoos are protected by copyright, as they are “pictorial, graphic, and sculptural works” under 17 U.S.C. §102(a) (5). Plaintiff also argues that tattoos are fixed in a tangible medium of expression, noting that “the tattoos designs are imprinted permanently upon the skin of humans, clearly stable and able to be perceived for much more than a transitory duration” (at 28). Tattoos also satisfy the “minimal degree of creativity” requirement set by the Supreme Court in Feist Publications, Inc. v.  Rural Tel. Serv. Co.

Plaintiff cites an article by Yolanda M. King, The Challenges Facing Copyright Protection for Tattoos to support its claim but notes, however, that “[t]he issue of tattoo copyrightability has yet to be decided upon in court due to numerous settlements preventing a final judicial opinion.”

It seems that tattoos may be  protected by copyright. Is there a defense available to the Defendants?

Possible Defenses: Fair Use and De Minimis

Fair use is a defense to a copyright infringement claim, and the SDNY would look at the four fair use factors, (1) purpose and character of the use, (2) nature of the copyrighted work, (3) amount and substantiality of the portion used in relation to the copyrighted work as a whole and (4) effect of the use upon the potential market for or value of the copyrighted work to find whether the use of the tattoos was fair.

Defendants in this case could certainly claim that the amount taken in relation to the video game was small enough to be fair. They could even claim that the use of original work was so little that it does not even warrant a review by the court, as de minimis non curat praetor, the court does not concern itself with trifles.

However, plaintiff took care to note in the complaint that “On social media, 2K has promoted the improved tattoo customization as a major feature in the game” (at 15) and that “Game reviewers praised NBA 2K16’s improved visuals, which included smoother looking character models and more individualized tattoos” (at 16), and so probably stands ready to argue that the use was significant, both quantitatively and qualitatively.

A Possible Defense: Terms of Players’ Contracts with Their Tattoo Artists

Did the players themselves have a licensing contract with the tattoo artists who applied the designs at stake on their bodies?

Indeed, sports agents should be well advised to explain to their clients that sporting one or more tattoos may impede their ability to monetize their image. While his tattoos make LeBron James an even more interesting player, having a court find out that their reproduction infringes the right of a third party would rather complicate the drafting of a (lucrative) agreement to license his image.

Should players be advised to secure the exclusive right of their tattoos before going under the inky needles? An author has argued for the need of an implied license.

It has been reported in 2013 that the National Football Association Players Association advised agents to recommend that their clients secure a release from the tattoo artist, and even to track down the artists who have done their previous tattoos to secure such release as well. This advice was given following the Whitmill vs. Warner Bros. Entertainment Inc., 11-cv-00752 (E.D. Mo.) case, where the tattoo artist who had created the highly original tattoo sported by Mike Tyson filed a copyright infringement suit to prevent the release of The Hangover 2, where actor Ed Helms sports a similar tattoo.

The National Basketball Players Association will probably issue similar advice following the 2K Games copyright infringement complaint, if it has not done it already. Meanwhile, many IP attorneys are hoping the 2K16 case will not settle, so that the SDNY will have an opportunity to rule on whether tattoos in general, and tattoos reproduced in video games in particular, are indeed protected by copyright. It should not be a slam dunk case (sorry).

Photo is courtesy of Flickr user Chili Head under a CC BY 2.0 license.

Video games and IP: The intricate relationship between Interactivity and Creativity

On the 2nd of December The City Law School are hosting a seminar with Dr Gaetano Dimita (Queen Mary University of London).

The seminar will provide an analysis of the legal status of video games  as complex IP products and will provide an overview of some of the core  IP issues in video games and virtual worlds, including copyright  protection of creative elements beyond the code, game design patents,  in-game use of third party trade marks and personality.

WHEN
Wednesday, 2 December 2015 from 12:30 to 14:30 (GMT) - Add to Calendar

WHERE
Room DLG03, Rhind Building, - City University London. Northampton Square. London EC1V 0HB GB - View Map

It's free, but you need to REGISTER HERE

Tax relief for TV and video games

Apologies for starting the new year by talking about tax, however I thought that draft legislation (see page 385 onwards) published by HMRC last December might be of interest to readers, as it sets out the proposed tax reliefs for high-end television, animation production and video game development for inclusion in the Finance Bill 2013. HM Treasury has also published a response to the consultation on creative sector tax reliefs. Comments on the draft legislation are invited by 6 February 2013.

In HM Treasury's response to the consultation, David Gauke, the Exchequer Secretary, said that these new targeted incentives support the Government's ambition to make the UK the technology centre of Europe, and that the new reliefs looked to build on the success of the film tax relief, which has supported over £5 billion of investment into British films.

HM Treasury also noted that responses to the consultation set out a clear case for the need to support skills development within these creative industries. David Gauke confirmed that, as announced at the Autumn Statement, the Government will introduce additional support for skills and talent development within the film, television and video games sectors, to come into effect alongside the new creative sector tax reliefs in April 2013.

Both the additional support of skills development and the increased tax relief will be welcomed by the television, animation and video games industries.

A summary of the proposed high-end television tax relief can be found here and of the video games tax relief can be found here.

The idea/expression dichotomy in the virtual world

Last Friday, Electronic Arts (EA) sued Zynga in the US District Court for the Northern District of California, alleging that Zynga's new game, The Ville infringes copyright in EA's The Sims Social. The online games, which are both played on Facebook, involve players creating characters who live, work and interact with each other in the virtual world.
EA has said that The Ville is "unmistakably" similar to The Sims Social and that the games are "largely indistinguishable" to the casual observer, but that the similarities go beyond the superficial. EA have said that Zynga's "design choices, animations, visual arrangements and character motions and actions have been directly lifted from The Sims Social".

Zynga was quick to respond, saying that EA doesn't understand copyright and that it plans to defend its rights. Further, Zynga points out that EA's recently launched SimCity Social is very similar to Zynga's CityVille game.

The question of how much can be copied turns on the idea/expression dichotomy, which says that ideas are not protected by copyright, only expressions of ideas are protected. This is a concept that has been analysed in the world of literature, film and photographs however there is little case law in relation to video games, where the complexity of the games combined with the fact that players have direct input on what the game looks like and how it plays out make the analysis more difficult.

An early case in this area was Atari v Phillips. Atari made Pac-Man, a game that many readers will surely remember. Phillips released a similar game called Munchkin, and were subsequently sued by Atari. In 1982, the court held that Phillips had copied Pac-Man and that it had made alterations that "only tend to emphasize the extent to which it deliberately copied the Plaintiff's work."

The ruling was one of the first to establish how copyright law should apply to video games.

In 1994, the courts found in favour of the copier when Capcom sued Data East alleging its game Fighter's History infringed copyright in Capcom's Street Fighter II. In this case the court held that since Capcom’s characters were themselves based on previously existing stereotypes and martial arts disciplines there was no infringement.

Most recently in Tetris v Xio Interactive (which Eleonora reported on here) the district court of New Jersey said that: "The doctrine is simple to state - copyright will not protect an idea, only its expression - but difficult to apply, especially in the context of computer programs."

The court went on to say that "The style, design, shape, and movement of the pieces are expression; they are not part of the ideas, rules, or functions of the game".

EA has made a very detailed claim, which specifies for instance that The Ville uses the same skin tone colours as Sims Social and that the refrigerators in the virtual houses are so similarly drawn that they overlap nearly perfectly. On that basis it seems likely that Zynga is infringing the expression of EA's game as well as the idea. If the case does make it to court without settling the judgment will offer much needed clarity in this area of the law, and could have a huge impact on the masses of lookalike games on the market.