Techdirt. Stories filed under "dante's inferno" Easily digestible tech news... http://www.techdirt.com/ en-us Techdirt. Stories filed under "dante's inferno"http://www.techdirt.com/images/td-88x31.gifhttp://www.techdirt.com/ Fri, 3 Dec 2010 08:02:10 PST Gawker Sued For Copyright Infringement For Showing Image That Inspired EA's Dante's Inferno Mike Masnick http://www.techdirt.com/articles/20101201/09503712078/gawker-sued-copyright-infringement-showing-image-that-inspired-eas-dantes-inferno.shtml http://www.techdirt.com/articles/20101201/09503712078/gawker-sued-copyright-infringement-showing-image-that-inspired-eas-dantes-inferno.shtml a rather odd copyright infringement lawsuit filed against Gawker. Artist Lindsay McCulloch has sued the blog company because of a Kotaku blog post that included an image of McCulloch's "Dante's Inferno" illustration, which you can see here:
Now, I actually hesitated in posting this image, seeing as it's what got Gawker sued (suggesting the sort of chilling effects of silly copyright lawsuits). Here's why the original lawsuit seems odd, and why Gawker seems likely to have a very strong fair use claim -- with an added point as to why I have an even stronger fair use claim in posting it here:
  • Kotaku didn't just post the random image. It was highlighting a point in a Kotaku live chat, where the producer of the EA game Dante's Inferno noted that it was this image that inspired him to create the video game:
    "The real "ah ha" moment for me was seeing this really cool map that someone created of the 9 circles of hell. You see a lot of these maps, you know the "V" shaped cross section, but there was one in particular that had all the call-outs for the different sections, the "bosses" of each circle (Charon, Minos, Cerberus, etc.), and I just looked at that map and said, "that's a level-based game waiting to happen."
  • So it wasn't just a random use of the image -- it was a story about that specific image and included commentary beyond just the image.
  • I don't know if the post changed, but as it stands right now, the image is a small thumbnail and there are two separate links to McCulloch's full image. Update: People are saying that the original post was not a thumbnail, but had a much larger version of the image. I'm still not sure how that wouldn't get fair use protections, however...
  • There's a whole bucketload of derivative works issues here: McCulloch's image is derivative of the book. The video game is derivative of the book and the image. The blog post is derivative of all of that.
  • Us reporting on the lawsuit where this image is central to the lawsuit again highlights how this is likely fair use.
If we go through the traditional four factors test, it's difficult to see where McCulloch has any leg to stand on.
  1. the purpose and character of the use

    This clearly weights towards fair use. There is new expression around the image, describing how it was used to inspire the video game. On top of that, being used in reporting is quite a common form of fair use.

  2. the nature of the copyrighted work

    This factor tends not to get that much attention, but the key issue is usually whether the content has already been published. In this case, it has been and is available for everyone to see on the web anyway.

  3. The amount and substantiality of the portion taken

    While this is the whole image, it appears to be a thumbnail of the image and provides additional commentary. As we've seen in a variety of cases involving fair use questions concerning images, making use of the entire image, even in commercial use, can still be fair use if it makes sense in context. In this case, that certainly seems to be true.

  4. The effect of the use upon the potential market

    This is one of the "big" tests, and it again weighs entirely towards fair use here. Is anyone less likely to purchase or license the work because of Gawker's use? That seems highly unlikely. If anything, it brings additional attention to both the artist and the work.
What's a bit surprising is that THREsq notes that McColloch is apparently represented by Shourin Sen, who runs the excellent Exclusive Rights copyright law blog, which we've linked to in the past for its smart and reasonable analysis. I'm at a bit of a loss, unless the original blog post on Kotaku was substantially different than what it is now, as to how this could possibly be a case of copyright infringement, rather than fair use.

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]]> fair-use-isn't-so-fair http://www.techdirt.com/comment_rss.php?sid=20101201/09503712078 Tue, 16 Jun 2009 02:37:00 PDT Electronic Arts Stages Protest of Dante's Inferno at E3 Blaise Alleyne http://www.techdirt.com/articles/20090612/0853575211.shtml http://www.techdirt.com/articles/20090612/0853575211.shtml Dante's Inferno, to awkward protests from a group of concerned Christians going under the name, "Salvationists Against Virtual and Eternal Damnation." They had signs like "Trade in your PlayStation for a PrayStation," "Cheat codes won't save your soul," and "Hell is not a game," as well as a 1996-esque website complete with animated GIFs and multi-colored all-caps text. The protest was covered by the LA Times, the San Jose Mercury News and many gaming blogs. That sort of controversy might make the game more appealing to some... except, EA admitted that the protest was entirely staged by the viral marketing firm that they hired (though, it didn't fool everyone).

As the popular gaming blog Joystiq puts it, there's got to be a better way to promote the game. A faux controversy might seem like a clever idea, until people realize it's just a publicity stunt. Plus, it doesn't seem very smart to alienate Christians when you could be selling them the game instead (as Thomas Peters from AmericanPapist.com writes, "getting to play Dante as he slashes his way through hell? It sure beats Tetris."). Electronic Arts recently landed in some hot water for another clever viral marketing idea, which involved shipping brass knuckles with the Godfather II press kit, despite mere possession being a first-degree misdemeanor in some states to which they were shipped. They get points for creativity, but they might want to think twice before acting on some of these ideas...

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