April 07, 2006

• I should say the photographs contained watermarks for my friend's site, but otherwise were freely available to view on his site.
• What kind of watermarks? Were there any copyright notices? If it was freely available on his site and you didn't have some kind of disclaimer or copyright notice, you can do nothiing. Fair use. In that situation, best you can do is make a nice website about it and get a few hits.
• You should get a few T-shirts, at the least, which say "I appeared in an X-box game & all I got was..." etc.
• I have to disagree with Chyren on this one. Copyright is not like a patent or trademark -- you don't have to overtly protect it. You don't even have to label it as copyrighted material in any way. As a matter of fact, in the US, you have to overtly RELEASE it to the public domain (or overtly release it under a CC license). Also, fair use is about excerpts for academic, critical, and parody use. Putting your picture in a cut scene of a sold product by a for-profit company is certainly not fair use. Your friend still holds the rightful copyright of this, and he should contact the publisher of the game (whether himself or a lawyer, I don't know), notifying them of the copyright breach, and offering to negotiate retroactive licensing terms. But your friend really is holding the cards on this one, and is entitled at least to some payment for its use -- and you are entitled to payment as a model, depending on whatever agreement you and your friend may have. I'm not saying it's worth a lot, but this may be worth a few hundred to a few thousand dollars (probably closer to the former, unless it's a major scene and used in promotional material, and the like), and I'd say it's definitely worth pursuing.
• BTW, I am not a lawyer, but being a writer and musician, I have done some research into US copyright protection, what constitutes fair use, and the like. If your friend is very assertive, he can probably negotiate a royalty rate rather than just a royalty-free license, which would be connected to quantity of units sold. Again, this may be a penny (or less?) per unit, but again, it's worth something that the game publisher didn't do their due diligence in making sure that what was in their game had the proper clearances.
• Oh, and it's an EA game. You have my condolences...
• Hmm, I am sure, although I could be wrong, that posting material to the internet invalidates any claims of automatic copyright.
• You can submit a copyright to whatever legal office handles that, and that makes it very easy to protect, but even without submitting copyright you still have some level of ownership of the images. Based on that you and/or the photographer should be able to claim some remuneration for the use of the photos. What that amount would be, I don't know. Whether it's worth fighting for, I don't know. Maybe the t-shirt idea is a good one.

• Use of a copyright notice was generally the result of previous United States statutory requirements, but since 1989 in the U.S., the use of copyright notices has become optional.

  From Wikipedia
• HARUMPH
• I did a fair bit of research specifically about posting on the internet before I posted a great deal of my writing online (and a fair bit of music, too), and posting on the internet is definitely protected. There are, however, certain limitations, such as if you were to post an image on a message board, you have given pretty much an irrevocable license for the owner of that board to display your image in the context in which it was first posted. Changing it or putting it to commercial use is still prohibited. As for posting on the internet and some random person taking it and using it for gain, you retain your copyright regardless of whether you put it online or not. Just happens that usually, you'd never find out it was used. But that doesn't invalidate your ownership. Here's a decent page that I dug up from my bookmarks on this, Copyright on the Internet. The most relevant piece, I think is this:

  Notice. For several years, copyright notice has not been required in the U.S. Until then, however, that was not true; notice may be needed to rebut lingering notions that works published without notice can be used by others without restriction. ** Web pages. Again, web pages are simpler. Although a formal notice is not required, it is best to provide a notice such as appears at the bottom of this page.

  (emphasis mine)
• Dude, it's EA. Take 'em down. Please.
• Wow... how weird... I just bought this game earlier today... I'll be lookin' for ya f8x!
• But... but... if you take down EA, Spore will never be released, and I will have to commit suicide, rather than face a life without Spore! In all seriousness, though, I would definitely start by sending EA's lawyers a polite inquiry. I assume that EA (like most other companies) gets its images through a stock photography service like Getty Images, Corbis, etc. If this turns out to be the case, your friend needs to track it down and quash it fast, for a lot of reasons. (The least of which being that the next time you see it, it could be in an ad for herpes medicine or something.)
• As an aside, a friend of mine went through something similar a few years ago (newspaper ad, rather than a computer game, but anyway)....and they found that the company at fault pushed back HARD, insisting that they had the right to use the image etc etc. Eventually a lawyer for them won the day, but it took time and there was a lot of aggravation. Moral being be polite, but be prepared to carry and thump around with a big stick. Getting a lawyer involved asap may be a good way to go.
• Do you want to do anything about it? Do you actively not want to be in this game? Or do you want to make a big deal about it just because you can make a big deal about it? That's the first question. It doesn't seem like you are to upset about it, and it's actually pretty flattering for both you and your friend. I'm jealous. A court would likely say they violated your copyright, but you'll need to demonstrate damages done to recieve damage money. That's damn difficult in most situations. I'd say tell boingboing about it, they'll like to use it to show corporate hypocrasy about copyright. You'll winding out finding out the best course of action from there; the EFF lawyers are likely to be the most sympathetic. See how it goes from there.
• (Do you have screenshots from the game?)
• Actually, you know what? Fuck them. I was just served a huge copyright notice at their website for the same game, for attempting to look at wallpaper they are offering for download. If those bitches want to overly protect desktop fucking wallpaper that they are giving away for fucking free because it giving them free fucking advertising, they should be taught a copyright lesson.
• IANAL, but I like to follow the copyright issue and have noticed that the default position of media companies, when caught blatantly stamping all over someone elses copyright, is to ignore the issue. In fact, the media corporation lawyers seem to take the most aggressive stance they can think of against the accuser (while trying to avoid public disclosure). As a result, I would not expect you would get a dime out of them without a lawyer of your own involved to prove how serious you are. Secondly, a quick perusal of copyright law suggests you likely don't have a valid copyright. It appears that the owner of a private space can deny you commercial copyright by claiming you did not have permission to photograph. Since your post implies you did not have permission to be in the hospital, you cannot claim a commercial copyright unless the hospital was publicly owned. Keep in mind, publicly owned in this day and age means it has to have been owned directly by some level of government, and not a corporation set up by the government. If you had been on the road outside the hospital, then any part of the hospital visible from a public space is fair game for copyright.
• It appears that the owner of a private space can deny you commercial copyright by claiming you did not have permission to photograph. If true, that would still require the owner to deny the copyright. Until the owner does, the copyright has not been denied, and it still belongs to f8x's friend.
• Until the owner does, the copyright has not been denied Except that, assuming this understanding of the law is correct, EA's lawyers will undoubtedly jump all over that fact and tell you to bug off, daring you to take them to court. If you do, they'll simply subpoena the building owner to prove you didn't have permission. Boom - you're done. Of course, if one were really determined, perhaps you could find out who controls the hospital and approach them slyly enough to somehow extract a permission preemptively, without telling them about EA's involvement. Bit of a long shot though.
• daring you to take them to court. If you do, they'll simply subpoena the building owner to prove you didn't have permission. That's fine. Force their hand. Their lawyers are sitting around getting paid anyways, and right now they're looking for opportunities to sue little kids for downloading the desktop wallpapers EA is handing out. The more time they spend on the defense means they'll have less time to devote to attacking others. Meanwhile, there will come a point where EA finds it to be more cost effective to do the right thing rather than what they want to do.
• > I've somehow appeared inside Black, this is very cool. i too am jealous. > anything to be gained from making a big deal of this? i don't know; i think maybe they'd settle with a small payment to avoid trouble. i'm not sure if it'd worth the legal expenses on your side. you should stop openly discussing the circumstances in which the pictures were taken.
• I'd consult a website on photographers rights, but I don't think you own the copyright to those photos, its held by the person who owns the building you were trespassing in. Its not like a public storefront or street scene, they have the right to restrict photography inside their property.
• Actually, I'm not sure that means that they hold the copyright on the photo, but that you needed to get their permission to photograph in the first place, its not assumed. Chances are the owners don't care and you are fine.
• my "not a lawyer" research agrees with: 1) a copyright IS in place for anything you post if it is your original work, and 2.) being on private property did not void the copyright... now... you win, you didn't get hurt....do you REALLY want to join the ranks of those who expliot every little flaw and mistake in our society to get rich? Call 'em, tell 'em you want some free merchandise, and tell them thank you! :)
• now... you win, you didn't get hurt....do you REALLY want to join the ranks of those who expliot every little flaw and mistake in our society to get rich? I was thinking along those same lines, but if you go to EA's website, you'll see that they are already actively performing the exact same action f8x is contemplating. It's EA's lawyer's who have their copyright trigger adjusted to sensitively, not f8x. They should eat their own medicine.
• I think you should start selling "EA stole my copyrights" T-shirts on CafePress.
• Y'see, if god really existed, this would never have happened. I bet you pray to that motherfucker all the time, right? What does he do for you? Gives your fucking picture to EA Games. Yeah, that's great, Jehovah. Thanks a fuckload for that, I pray to you since I started to walk, and you fuck me over. Bastard. If I'm a god & people pray to *me* I stop bad things from happening to them. That's because I'm a fucking class act.
• Someone pull Chyren away from the Bar!
• Now, how EXACTLY do we go about praying to Chy? So that he'll hear about it? What is my faith in Chy going to do for ME? hmph. i don't buy it. ;)
• Black, an XBox game Well, that's a pos website. I tried to enter my birthday using the keyboard and it immediatly registered the year as 2005, and now it won't let me in. Web 2.0! Loooooove it!!
• I"m no lawyer, but I'm highly sceptical that permission to photograph has much of anything to do with it. After all, paparazzi take pictures of celebrities at resteraunts, bars and casinos all the time. Regardless, contact EA, the worst that can happen is that they are dicks and play hardball. The best that can happen is you get some money. Nothing ventured, nothing gained.
• That second one totally looks like the "hallway scene" from Exorcist III.
• Perhaps they would settle out of court for an Xbox 360 and an assload of EA games for you? At least it would be something. I say call a lawyer, and go from there. A short consultation with someone who knows the law and the probable outcome expectations here would be more helpful than a bunch of us non-lawyers guessing what will happen next.
• Go for $10,000 and a lifetime supply of free coffee.
• I'd contact them for the same reasons Mr. K suggests. Big media companies are using copyright law strictly to their own gain, and need to be shot a little of their own medicine. (yeah!) I also second the notion of posting this to BoingBoing, as you will stir up public sentiment and may get free legal representation through EFF.
• No matter what happens, I would like to stress this: your friend owns the copyright. You personally have the right to payment as a model in the shot, and the owner of the building has a right to go after you in civil court for their cut of the money, as you were trespassing. But trespassing does not invalidate your copyright, it merely introduces the owners of the building as having a stake in the profit. Notify them via registered mail that they have infringed upon your copyright, and that you are willing to negotiate rates. Your standard rate for appearance in a publicly sold video game item is $25,000 plus $.50 per unit sold (or something like that), but you are willing to negotiate with them to prevent this becoming a very publicly promoted issue of a "big company" "pirating" your work.
• Interesting ideas, all. Right now, I'm more amused than upset, to be perfectly honest. My friend is a bit more perturbed, which is why I posted this. You guys rock. I'm forwarding on the suggestions to my friend and I'm going to see what he thinks. If he wants to pursue taking action against EA, I won't be disappointed. HuronBob, I'm naturally pre-disposed against frivolous litigation, and this doesn't seem to be a case where anyone was hurt. Since I didn't take the picture, I have fewer dogs in the fight than my friend.
• Most law suits aren't frivolous per se. It's the requested damages that make them so. Let's see what friend o' f8x asks for, and we'll see if it's frivolous. I for one think he should seek some recompense.
• Yeah, I was wrong about the copyright, I wasn't sure. Your friend does hold the copyright. However, permission to photograph on private property has to be granted. You can assume you have it sometimes, say in a museum where you've paid the entrance fee and there aren't "no photography" signs, but this isn't one of those times. Paparazzi's also break the law all the time, and get sued all the time. If a person is in a public place, or you take a photo of their house from the street, they can't stop you from taking THAT photo. On the other hand, you can't sneak into their bedroom, snap a shot and stick it on the internet without expecting a lawsuit. So yes, your friend has the copyright on the photo that he shot illegally. It may be used against him in a civil suit, if the owners of the property are litigious.
• I think it would be more fun to tune the owners of the property into the fact that EA games trespassed so they could shoot photos for the game, and watch the fur fly.
• But then EA would counter-strike, saying the trespassers were these two guys, see, they have proof it was you who took the pics, so you're the ones who sould go to jail.
• this thread is useless without screenshots from the game. also, most art assets are created in-house, from scratch. on rarer occasions, bits and pieces are snagged from royalty-free stock art. i can't imagine an artist from somewhere like ea / criterion just stealing people's random photos from the internet. not saying it can't happen, but art directors don't usually condone such a practice.
• I asked that elsewhere (I wondered if they wer emaybe just similar looking images) and the bloke there (a Dutch games journalist) said that there was no doubt in his mind that they were definitely 'stolen'
• Chyren posted: Hmm, I am sure, although I could be wrong, that posting material to the internet invalidates any claims of automatic copyright. I think according the Internet Pirate's Handbook, that is true but in RL, no. f8xmulder, are you sure the actual images were used? You didn't post a link to the image so how can you be sure? It may be that EA was inspired by the photos and did a 3-d version of the building, and a black shadow in about the same spot as your pic shows, but that would not be a copyright violation per se. The building is not copyright by you, so they could use it's representation without your permission. And a silhouetted figure would be hard to have copyrighted. I'm just saying this if the actual pic wasn't used.
• Compare original with in-game screenshot
• I have video of the shot in game and it's a bit better quality than that. But these two images are pretty irrefutably the same, IMO.
• wow. it certainly looks like someone ripped off your pix. that's weak! call your lawyer and have him send them a vaguely threatening letter. dont expect to get rich, but i believe you and your buddy are certainly entitled to a reasonable 'licensing' fee.
• To what Mr. K said: I used to work as a freelance consultant to a division of a videogame company that might be a company you guys know (non-disclosure and all that). Part of my job was to report copyright infringements (like people using images from the games to sell items at Cafe Press). Most of the time, even when they were reported, my employer chose to look the other way unless the person was making a profit from the game in another way as well (selling cheat programs, etc.) So, while I do think a huge copyright disclaimer on wallpaper is stupid, I do know that this company I worked for that you guys probably have heard of doesn't really always go ballistic pursuing those copyright violations. And I'm not saying I'm a big defender of the company, 'cause my job was outsourced and I lost it. Just wanted to give another perspective.
• Oh, and also, if I were your friend I'd have a lawyer send a letter. Even if your get nothing out of it, they should know that he knows what they did so they'll think twice about doing it again.
• if your friend gets nothing out of it, that should read.
• They would have to identify the guy in the photo, whose identity we don't know. We don't even know who f8x is IRL. They could track down the owner of the site that hosted the pictures, and he could deny any knowledge of who provided them. Claim they were provided anonymously. Criminal cases are beyond a reasonable doubt, unlike civil cases, and since these two blokes haven't made any money off the pictures, didn't damage the property, who is going to bother pursuing it as a civil case? Unlike EA, which does stand to gain from it. But yes, wishful thinking on my part.
• Also, as for modification / reconstruction, the owner of the copyright also controls all derivative works.
• Yeah, the in-game image is obviously ripped from the pic. Another question though. Is the in-game image integral to the game? Is it something that a player would definitely have etched in his mind after playing? If so, then forget trying to do legal action against EA. Start making money off the original pic. Photoshop it to make it creepier looking and blow it up poster size to sell on the internet to fans of the game. EA won't be able to do shit to you because the image is your friend's! Take advantage of any game popularity and the obvious loophole from the stolen image. Your friend might not be able to get rich but he could make some decent money for nothing.
• WWCDD (What Would Cory Doctorow Do)
• Here's my take. The copyright issue has been beaten to death, so don't worry about that. As to the trespassing issue, there's probably a remarkably short statute of limitations on a trespassing prosecution. These aren't the sort of cases the police force works 20 years to crack and can't really be prosecuted long after the trespass (civil or criminal) occured. So you don't need to worry about a retaliatory suit via Uncle Sam Lite. I doubt there is any legal authority which would mar your friend's property rights in the copyright. I don't want to hit westlaw over the issue, so I'll leave it at it seems perfectly legitimate to have a property interest in a photograph of an 'illegal' act.
• IANAL, so take this for what it's worth. The trespassing issue is not germaine to the copyright infringement issue. From the photo comparison, there is enough similarity to definitely raise the infringement flag. I think your friend has a case, although the cost/benefit of filing a lawsuit is a matter beyond me. From a personal standpoint, EA needs a good sharp jab in the buttocks about this. If it costs them money and causes them not to release a game or two, then I certainly won't cry about it.