Artist says Capcom stole her photos for Resident Evil, Devil May Cry
polygon.com
polygon.com
Surfaces: Visual Research for Artists, Architects, and Designers
Surfaces offers over 1,200 outstanding, vibrantly colorful visual
images of surface textures--wood, stone, marble, brick, plaster,
stucco, aggregates, metal, tile, and glass--ready to be used in
your designs, presentations, or comps, as backgrounds or for
general visual information.
I have a very, very hard time imagining that this is going to get past a fair use argument. Capcom is doing with these images exactly what the author intended. If the author wants to be able to sue for royalties after the fact, then that blurb can only be read as a deliberate booby trap.At the very least, a note in this section stating that a licence is required for some uses would be a useful clarification.
I don't disagree that Capcom may have needed a commercial use licence, and that they should have done their due diligence, but I still think the book could have been clearer on this matter.
I also find the logic at paragraph 17 somewhat strange:
> The parties were required to contact Juracek to obtain high resolution digital files as the CD-ROM files were not high resolution. For the sake of clarity, anyone seeking a license for the photographs from the book or CD-ROM were required to contact Plaintiff to obtain the photos in a high resolution digital file suitable for commercial use as all rights were reserved as set forth in the copyright notice.
What if you don't need high-resolution images for your particular use? Noting that they had to contact the author to obtain higher resolution images seems irrelevant when determining if they had a licence to use the images present on the CD (unless it's alleged they used the higher resolution images and must have obtained them from another source, which I don't believe is the case).
That's not what I was trying to say. What I meant that the claimant's argument is simply "You did not have a licence to use the images on the CD in that way". Presenting the argument as "the parties were required to contact Juracek to obtain high resolution digital files [and they did not do so]" _seems_ to add a particular significance to the high resolution images, when it's, as you say, irrelevant (what matters is whether they obtained a licence, not the high resolution images). Unless I'm missing something, you could replace paragraph 17 with:
> As a result of the book and photographs and CD-ROM, Juracek licensed copies of various photographs to many different parties who sought to use the photos commercially and the book became a very popular way for architects and designers to obtain exclusive high quality examples of unique decorative surfaces and features. Anyone seeking a license for the photographs from the book or CD-ROM were required to contact Plaintiff to obtain a commercial use license as all rights were reserved as set forth in the copyright notice.
and have the same effect. It just seemed like a needlessly complicated way to make the same argument.
There are some specific contemplated and limited uses in the blurb/text. It's not clear to me how those play against the plain fact of the copyright, but I doubt that claiming an author needs to repeatedly claim copyright for it be valid is going to get far.
This effectively is a license. It's implied that the copyright holder has not given you further rights than this.
As you say, Capcom may well claim that they are communicating visual information with others.
Is my brick wall or the marble floor, mansion door or cracked glass the art or is the photo of the item the art...can any photographer take a picture then turn around and sell it?
I guess you always ask for a lot in these lawsuits but the 12million seems high based on the price textured get licenced for today. Not bad for a book from 1996
OTOH, every picture was made with the express intent to make artistic textures. Yes, it is copyrighted by the photographer and can be sold.
I wonder if there was a particular licence in this book? Like if I buy an image from a stock site, generally it's "fine for the web as part of a 'something'" but I need an extended licence to sell it on t-shirts or book covers. Maybe something like that? But I agree that feels like a stretch...
Maybe it's a distinction without a difference in civil matters, since there's not really a presumption of guilt or innocence AFAIK in civil.
The first 40-some pages are on Google Books' preview, although pages 6-10 weren't available to me.
Copyright page (4): https://i.judge.sh/silver/Minuette/chrome_nJii0PAQoL.png
I would say that optional Copyright registration and spray and pray is the only viable monetization path for visual artists. Register and make your art available for others without a ton of watermarks or anything. Find them with reverse image search later.
It is very underused because the artists are largely segregated from the legal system, due to lack of exposure alongside real or imagined costs.
But it is ripe for use.
Why would you say that?
Just talk to artists who are actually monetizing their work and ask how many of them are using this strategy.
Then ask them what they do instead.
The collection comes with a CD-ROM of the images — but Juracek said she requires people to license images from her for commercial use by contacting her directly. Juracek said in the lawsuit that Capcom never contacted her for a license.
I might buy this argument if it she was suing the creators of some breakout indie game, but Capcom is a mature corporation with a legal budget and staff. If you rip off one of their products in a commercial context they will not hesitate to redirect your attention from the blurb on the back of the videogame case to the legal small print that says what you may or may not do with it.
I suppose it's well within the author's legal rights to sue but it does seem a bit scummy on the author's part to have that blurb but then pull a bait and switch.
I strongly suspect most of the complaints here are from people who enjoyed playing Resident Evil or some other Capcom product back in the day and are emotionally identifying with the cool game that they were quite invested in. I also enjoyed RE4, but if it helps just think of Capcom as playing the role of the Umbrella Corporation in this instance.
I think what you mean is that Capcom may have believed they had the right to use the images.
As always, the simplest explanation is the most likely: Artist + Deadline = Nobody's gonna know anyway because I like flipped and transformed them.
Would it have been fine if Capcom had re-created near identical patterns without use of the book's original digital files? It's a reference book after all.
Not saying Capcom should profit without crediting the original artist. But visual art remixing textures feels more grey area to me than copy/pasting code or someone's writing.
Here's a great summary of some of the best appropriation cases involving art, and their outcomes:
https://news.fordham.edu/arts-and-culture/top-10-cases-on-ap...
Artists use reference material all the time, and as long as the new work is the product of the new artist, it's all good. But directly copying art and then modifying it is still copying copyrighted material.
My understanding is in the music remix world, if you want to feature a song in your remix, you should get a license.
Similarly, my brother makes AMV videos and as I understand from him, the music rights-holders (not the anime rights-holders, interestingly...) will then claim all the monetization on those videos.
As my uncle comment suggests ( https://news.ycombinator.com/item?id=27426639 ) it's not clear cut. Just because you hit ctrl-c then ctrl-v on an asset doesn't mean what you're doing is automatically copyright infringement, it might be fair use assuming you changed something to a point where it's a derivative work based on the original work.
> the music rights-holders (not the anime rights-holders, interestingly...) will then claim all the monetization on those videos.
This is a Content ID Claim, and it's a system YouTube themselves made up so that companies can automatically start garnishing monetization earnings on videos that use their work in any capacity without having to do DMCAs themselves. In no way is this tied to copyright or fair use.
Pretty sure copyright doesn't at all work like that. I.e. copyright can be (and usually is, AFAIK) preserved across derivation.
Contenting ID it _totally_ about copyright. The only reason Google built it is to reduce the exposure they have to claims of copyright infringement, by easily (way too easily it turns out) allowing rights holders (or anyone claiming to be one) to post-fact claim earnings from infringing use of copyright material. Just because Google demonetises your video and sends a share of ad revenue to Sony/Warner/whoever, that doesn't mean you _didn't_ infringe copyright.
Nor does it mean you did infringe copyright. There's no direct correlation between one and the other. You can't use the function of Content ID to infer things about how Copyright works.
Content ID may be ABOUT copyright, but in no way is it TIED to copyright.
Similarly, in this case, it's a reference book - and there just so happens to be verbiage that says "for commercial use of any of these, contact the author".
I'm pretty sure that, by volume, most art is not sold in a commercial environment and its creators could use the book without concern.
In copyright law this is usually fine, yes.
Capcom "crediting the original artist" would have made this even worse for them, it'd then be a slam dunk admission of copyright infringement.
You cannot use a copyright work for free then "credit the original artist" to shirk your legal responsibility to negotiate a license to use the work.
There is no "grey area" here. (Arguably there _should_ be, and the hardline copyright stance the actual law takes is mostly Mickey Mouse's lawyers and lobbyists fault, but that's the world we live in...)
If someone trained a neural network to create wood textures, and 1 of N training images came from this book, would wood textures generated by this NN infringe on the author's copyright?
To what extent does the size of N change the answer? (I'm sure 1 is no good, but is 10 enough? 100? 1000?)
My understanding of the situation in US copyright law is that the synthesized images would clearly be derivative works, and thus copyright holders have rights to the (portion of the) output which is derivative.
However, such a use might be considered fair use. (Fair use is not an exception to copyright itself; it just limits what the copyright holder can stop you from doing) There is no perfect checklist of what constitutes fair use, but there are established criteria that weight in favor or against fair use.
Substantiality may weigh in favor of fair use since only some of the input images appears in the output (and less so if mixing many together)
Affect on the original work may weigh against fair use -- if you can use the texture synthesizer instead of buying the original texture reference book.
I think there's limited precedent that machine learning models can claim fair use of their input text, but I'm guessing the specific case of reference textures => texture models may be hard to argue as fair use (unless you have rights to at least most of the inputs)
Good luck proving it. So in practice it's basically legal.
I think the trickier part is figuring out that your image was used in the dataset or convincing the judge that you have standing to compel that discovery search. If you have a bunch of get requests from an AI company's corp IP that could do it.
> trickier part is figuring out that your image was used in the dataset or convincing the judge that you have standing to compel that discovery search
Yes, that's my point.
I believe there are ways to add to a training set without retraining on the whole thing, but it's trickier and the math is way over my head. I think in many cases people just retrain over the whole corpus if they want to iterate on the model - so most commercial ML models probably hold on to their training datasets and consider it a business asset.
There is other data that has naturally very long retentions (sales orders) where even with deletion requests some aspects should be kept just for financial compliance.
This is why you shouldn't use sensitive material as training data. If you're a startup and you're using all of your customers' private data to train a single model that then gets used by all of your customers -- guess what, you're doing it wrong!
It's the same reason you wouldn't teach your five year old how to read by letting them pour over you and your spouse's text message history. I mean, you could, but then you shouldn't be surprised when they inadvertently utter something embarrassing that they don't necessarily understand, but whose origin is obvious to everyone else at the party.
"CD-ROM included: easy-to-use screen resolution TIFF files of every image"
If I'm buying a $200+ book with an "easy to use" CD of the images - they'd better be highlighting very very clearly that I can't use these in projects.
Are you serious that this is like buying art? This really then feels like a TOTAL scam.
I should base my art on the photos without copying. If it's just for me to look at and not copy, why the CD? I can look at the printed picture to base my art on that.
Here is the amazon blurb "ready to be used in your designs, presentations, or comps, as backgrounds or for general visual information"
What absolute garbage.
If I'm buying something like this with the intention of redistributing the artifacts, I'm going to be scrutinizing the hell out of this and possibly choosing not to buy based on the ambiguity in the product description.
The blurb says "... ready to be used in your designs, presentations, or comps, as backgrounds or for general visual information."
Come on - this type of gotcha lawyering stuff is ridiculous.
Something says Copyright (c) Somebody Year. Don't copy it, particularly for commercial use, unless you also have one of those 6 page "I'm allowed to do this without paying anything more" agreements.
Every audio CD I own has "easy to use high resolution audio files" on it, I've never been under the misapprehension that I'm allowed to "use those in projects" without negotiating an appropriate license. I do know I'll "get away with" ripping those CDs to use on my iPod, or putting them in as background music to a limited viewership work presentation, but that if I "share" those files I'm risking a copyright lawsuit.
Why would images/textures be any different.
1) Don't normally come with a CD of the images in digital format
2) Don't include a blurb that says "... ready to be used in your designs, presentations, or comps, as backgrounds or for general visual information"!
It would take 10 seconds to put in similar size font - not to be used for commercial use of any sort (which is most use these days).
That's not their obligation. The obligation is on the person who intends to use the work in a commercial context, to ensure that they have license to use it.
In _any_ context, not just commercial context.
Copyright is "default deny". Unless you've been granted specific permission to copy a copyrighted work you cannot copy it for any reason apart from a few very tightly defined "fair use" exceptions - criticism, parody, news reporting, research and scholarship, and teaching. And keep in mind that "works" include pictures or photographs and are are by default copyrighted to their creator. You con't need to "register your copyright", although it's smart to as a way to help prove ownership it's not a requirement. Any photo you take or picture(/texture) you draw automatically is copyright to you.
I think if you bought a coding book and it had functions, you’d likely be comfortable using that code as part of a bigger projects, with some modifications to suit your needs.
As coders we don’t want to get trapped into a very high cost infringement event when it appears we’ve paid for something but the terms aren’t clear. $200 for a book/cd of textures seems weird that you wouldn’t get to use them.
Can you imagine buying a font for “inspiration” but to use it requires another license.
This also gets into a interesting grey area. They’re licensing photos of a cracked glass or a mansion door and all sorts of textures, but they didn’t create the door or the glass. some of the sculptural elements weren’t created by the photographer. As a photographer myself you can see where sometimes things get a little fuzzy.
In the end the lawyers will work something out.
After all, they have always been happy to let anybody at all sell jailbroken copies of their own games, online!
"the CD images can be used by artists and designers in developing concepts, preparing presentations for clients, and communicating visual information to others. Although the images are primarily intended for on-screen display, they can also be printed on either a black and white or color printer.
It's clear, only "preparing presentations" not using in presentations.
Equally the book buyers comments all think you can use the photos when making things. So clearly the CD gets sold for wink wink reasons and she would have to know that, but we also all know Capcom have had multiple people using the photos without everyone having a copy and they also know they are not a person just using the photos in a one off illegal presentation.
Legally it will be complex, we will see. It is interesting she allowed formatting shifting, you could print the photos. Was that legal when the book came out or was she adding additional rights and how does that effect the default copyright.
But it was strange to leave that open, everywhere else it's a tight language to not allow the extended use, while not explicitly explaining it so it didn't stop book sales.
Juracek's lawyers know this, and that's why they're saying nothing. Saying nothing maximizes their ability to agree to whatever flowery no-fault language Capcom would like attached to the settlement, because those words cost nothing.
Good luck with your "because I feel like it and it makes sense to me!" approach to copyright law!