News: 1623146592

But it's on the internet - it must be free!*

*not...

We don't know how the texture artists got it. But this stuff gets passed round the internet. Which is not to say they don't owe the photographer. However it's not impossible they thought they had a legitimate licence.

From reading elsewhere, the images were published on a CD attached to a book that was basically a "A book for designers by a designer". It also seems that there was an implicit licence that you could use these images for your own projects. But, and its not clear in any source I've read, if there was an actual separate requirement for a different licence for commercial usage.

It's also not clear if Capcom took these images from another database of textures. And as such, they had a legitimate licence to a texture database, but the owners of that database did not have the correct licence (or where not using the licence correctly).

So there's still a lot more to come out on this topic, and I wouldnt be surprised if it wasnt as clear cut as a lot of commentards below are implying...

"And as such, they had a legitimate licence to a texture database, but the owners of that database did not have the correct licence (or where not using the licence correctly)."

That was the kind of situation I was imagining. And permitted uses (especially for derivative works) vary by jurisdiction so it may be this was legal in Japan and nobody realised it had become unlicensed once distributed in the States.

However I don't think anyone can contest they used these images. And unless there was an explicit licence, Capcom will be dependent upon their lawyers to find a loophole, even if they are "innocent victims". I suspect the best they can hope for is a reduction in damages if they used them in good faith.

This will likely be an example of copyright law for decades.

"implicit license" is something you made up. That does not exist. Anything that's not granted explicitly by the copyright owner is not allowed. If Capcom didn't do their own due diligence and used a shady texture database - tough for them. But clearly, they're perfectly free to sue those database owners for damage.

Before it's mentioned, fair-use also is explicit in its limitations and I don't see how it could be applied here.

...are pretty blatantly cut'n'paste jobs from her original photos. Had a quick scan through the PDF and the shattered glass ones I can't quite see, but a lot of the others definitely are direct lifts from her works. The weird thing is the source material being from 1996. I have little knowledge of Resident Evil (didn't know there was a 2 never mind 4). Scene designers for a major game developer should however be a bit more savvy about where they source their textures/images from. I blame carelessness given the age of the source material, not that she doesn't have a claim or doesn't deserve some kind of payment.

It came with a CD, so chances are they bought the book and CD a while back and imported the images into their "textures library" without due diligence and have been using them since.

As you say, some of those could be coincidental, but the number of images seemingly replicated shows they've been using a lot of them. It's almost certain she'd win in court, but Capcom lawyers should be advising them to agree a settlement amount, probably along with an agreement to use all images in the future.

Given that it seems from the evidence they're likely to win; they've gone for a massive claim and hoping that Capcom will just payout at a lower level to avoid the cost of lawsuit.

It wasn't the most in-your-face example. But zoom in and put your specs on, and there's enough unique features that it's clearly overlaid on it.

I suspect it's first because it's the most reproduced and therefore the one which they owe the most for.

"The weird thing is the source material being from 1996."

Why is that weird? RE4 started development in 1999, so using a relatively recent database of textures seems fairly normal. This isn't a newly released game - not counting remakes the most recent is the 23rd game in the series (although as seems tradiational these days, the numbers are largely irrelevant - RE4 was the 12th game).

What's particularly interesting is that it appears they copied files directly from the CD without even changing file names. I'd say that makes it less likely they got the files through some convoluted route and might have thought they had a legitimate license. The filing also references another lawsuit where Capcom are being sued for copying designs in the most recent game. Doesn't look great for them really, although sadly I'd be surprised if any punishment is big enough for them to change their ways.

It would have been much weirder if the CD had been published in 2021.

To my mind, they've argued this the wrong way round. I'd've started with the stained glass and door knockers, which are absolutely slam dunk; after that, you're more or less convinced of anything. There are one or two where, if I saw them in isolation, I'd be sceptical. (The library baseboard is a fairly common design and there's not much unique in the texture.) But when you see everything else they've ripped off, you think, "yeah, they probably lifted that as well."

I have looked at the first few images in the PDF and yes, the look like they came from the same source. But is Capcom’s source the photos or the same as the photos source. All those images are from actual places so who’s copyright are they infringing the photographer’s or the actual source that the photos are of.

Now just playing devils advocate here I bet that they use her photos. But “I bet” is not good enough, her lawyers will have to prove that the photos were the source, scanned from or if drawn copied from.

Maybe they can maybe they can’t I wish her luck.

Just looked up first release date of game.

The first game was created by Shinji Mikami and Tokuro Fujiwara and was released for the PlayStation in 1996.

So same year as the book which came first?

I can see Capcon arguing those earlier images predate the book because for those images to be in the 1996 release they would have to have been created earlier than 1996 to make the release date.

That said I still feel they ripped off her photos.

This link (although it's UK copyright) has some information:

https://www.gov.uk/government/publications/copyright-notice-digital-images-photographs-and-the-internet/copyright-notice-digital-images-photographs-and-the-internet

Essentially, copyright on a photo rests with the photographer, for life plus 70 years (thank you Disney). If the picture was taken for their job, then it usually rests with their employer. The owner can sell the rights to a picture agency, for example, who take over the copyright (e.g. Getty).

What about a modern photo of an old painting (for example), where the original is out-of-copyright. The photo may be copyrighted if the image is an "intellectual creation". So if the photographer has lit it artistically, perhaps arranged it in a wider scene, or taken a picture of only part of a larger item. But, of course, the "may be copyrighted" bit is where lawyers come in.

As for your devil's advocate bit, remember that they are asking for a jury trial. A jury would consider, on the balance of probability, whether Capcom independently got hold of 80 images from separate locations which were all coincidentally in this book. Assuming that the lawyers could get all 80 images entered as evidence, of course.

It's a question of time periods, really, and it's just down to a small misunderstanding by Capcom's people: as the images were taken "by Juracek", they though that by now copyright would have already expired....

@MiguelC, think your punning went over their heads (or maybe they didn't like the joke?)

@AC "As for your devil's advocate bit, remember that they are asking for a jury trial."

I know, devil's advocate was in reference to the prevailing point of view of comments here and a play on one of the game names. ;)

Too many down votes and this devil's advocate may cry.

"Devil May Care": a previously unreleased high-pitched action/adventure game mostly consisting of blazing through otherwise mundane, real-life scenarios with little regard for the consequences.

Or it's a lesson in why your legal team should proof read their submissions.

One of the two.

I saw that as well, Devil May Cry

Two problems there tho:

I doubt anyone else went and got a picture of that broken window, and you can see when overlaid it's a match.

Also they copied the files without even bothering to change the names, so files on the original CD ROM appear in the game data with the same names.

"Also they copied the files without even bothering to change the names, so files on the original CD ROM appear in the game data with the same names."

That would be the slam dunk - strange that it isn't mentioned in the article.

I used to know a game dev back in the early 2000s. Their big name FPS game used many "borrowed" images. Small stretched images as tiles. At least one set of tunnels borrowed from goatse (Don't google it - read Wikipedia if you don't know what that is).

They said they had a competition as to who could sneak the worst items into the game unnoticed.

Resistance: Fall of Man used Manchester Cathedral for one level. The Church of England were not happy about it being in a first-person shooter but Sony got away with an apology. Was a nice bit of publicity for the game too.

This reminds me of the US Statue of Liberty Forever Stamp. In 2010 the US Post Office used a photo of a Las Vegas replica of the Statue of Liberty on a postage stamp. Ten and a half billion copies were produced. In 2013 the sculptor of the replica sued for copyright infringement. It went to trial, and $3.5 million was awarded.

The judgement wrote: The court is left to craft a remedy that best reflects what the fair market value of a nonexclusive license for plaintiff’s artwork would have been in 2010. Perhaps the lawyers and judge in this case will use the previously crafted remedy as a precedent.

https://en.wikipedia.org/wiki/Statue_of_Liberty_Forever_stamp

https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2013cv0942-136-0

By the way, it's a "Forever Stamp" showing a replica of the Statue of Liberty, not a "Statue of Liberty Forever" stamp.

Really!?! There are not enough pictures of the actual Statue of Liberty??? You need to use a picture of a replica? What on Earth were they thinking?

Just crazy.

The $3.5 million seems like an appropriate punishment, not for using the sculptors work, but for being stupid and not using a photo of the actual Statue of Liberty...

While sympathetic to my fellow photographer, I am uncertain how many of the images were purloined; note I have not seen any of the images. My experience is many images take by different photographers often strongly resemble each other. Depending on how each is cropped and processed it is possible to confuse them. The number claimed is suspicious and points to the possibility of infringement. However, we do not know the source used and some stock photo houses are not the most ethical operations.

I can see infringement actually occurring but the real culprit being a third party that illegally licensed them to the developers. Alternately, I can see the developers not paying attention to the fact ALL photographs are copyrighted like any other work and infringing carelessly. A common misunderstanding is how copyright law treats photographs as many assume they are not copyrighted when in fact they are.

Having clicked on the pdf linked in the story it looks very clear after the first half dozen that these textures have been taken from the "surfaces" photos, and it just get more convincing the further through you get - it's not just the item photographed but background behind/surroundings; the fractures in broken glass; marble patterns (yes, could be coincidence if a single shot of a column from somewhere like the Duomo in Florence, not if there are lots of shots of marble textures with the patterning copied to textures)

From the PDF:

---

12. As part of Plaintiff’s work, she traveled around the world photographing various

and unique decorative surfaces and features as part of her research related to set design which

photographs are distinctive and exclusive to Plaintiff. These photos are extremely useful to

designers and architects looking to create distinctive and memorable scenery and decorative

features.

13. As a result of Plaintiff’s work over the years, she grouped together various

examples of unique and interesting surfaces, textures and features into a book and CD-Rom

(“CD-ROM”) which represented Plaintiff’s extensive personal research work into decorative

surfaces and textures.

---

So surely the shiny things she photographs belong to the people that own them, so they must be the Copyright holders, eh?

Nope, that's not how copyright works for photography.

You would be right if she had reproduced works of art, eg, a photography of a painting under copyright, where the painting is the only thing on the photography, that would work.

But buildings are not covered, and things that have clearly no artistic aim (broken glass, bricks) are not copyrighted.

"So surely the shiny things she photographs belong to the people that own them, so they must be the Copyright holders, eh?"

No. Photographs belong to the photographer. If the subject of the photograph is itself copyrighted (e.g. a painting), then you need to negotiate with both the photographer and the subject-owner. One obvious case is that of wedding photographs. If you want extra copies of the photos taken on your special day by the professional photographer, you have to buy them off the photographer (unless it's part of the deal that you get electronic copies of the raw files).

It was more clear back in analogue-photography days, when there was a physical negative. But the principle still stands.

This is also the reason why lots of places have signs banning commercial (or all) photography.

Edited to add: Damn! Beaten to it.