Gawker Sued For Copyright Infringement For Showing Image That Inspired EA's Dante's Inferno

from the fair-use-isn't-so-fair dept

THREsq points us to 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.


Reader Comments (rss)

(Flattened / Threaded)

  •  
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    MrWilson, Dec 3rd, 2010 @ 8:36am

    She's just angry because Gawker pointed out that EA used her entirely original art as the inspiration for their game. EA's inspiration was not authorized. They stole her idea and Gawker is celebrating this and facilitating further theft! People might be interested in playing the game that wouldn't have happened without her art.

    I hear some guy even wrote a book based on the game, which was of course entirely based on her art. She should get some of the publishing proceeds for that book.

     

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      Chronno S. Trigger (profile), Dec 3rd, 2010 @ 8:40am

      Re:

      Is that a book based on a game based on art based on a poem?

       

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      Hulser (profile), Dec 3rd, 2010 @ 9:06am

      Re:

      EA's inspiration was not authorized.

      Inpiration doesn't have to be authorized. Are you seriously saying that it should be?

      They stole her idea and Gawker is celebrating this and facilitating further theft!

      You can't steal an idea.

      She should get some of the publishing proceeds for that book.

      No...no she should not. There is no ethical or legal foundation for that assertion. The game developer saw a piece of art that prompted a revelation about the relationship between a famous poem and the structure of a computer game. The game developer didn't use the actual expression of that picture. It was merely the trigger for an idea. The book based on the game is even further removed from the original picture.

       

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        MrWilson, Dec 3rd, 2010 @ 9:43am

        Re: Re:

        I was criticized for using a /sarcasm tag previously, but apparently it is warranted.

        I was being entirely sarcastic. I was trying to make the most absurd argument I could think of in favor of "intellectual property rights" in order to point out how stupid the lawsuit is.

        The book to which I was referring was Dante Alighieri's Divine Comedy. I was making the joke that someone who possibly didn't pay attention in their 10th grade English class might believe Dante is a modern writer who wrote the book based on the game.

        I'll start employing the tag again, I guess.

         

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          Hulser (profile), Dec 3rd, 2010 @ 10:04am

          Re: Re: Re:

          I was criticized for using a /sarcasm tag previously, but apparently it is warranted.

          Unfortunatelly, no matter how outrageous you try to be in order to be sarcastic, especially with IP issues, there are people out there who actually think that way. Today's satire is tomorrow's headline.

          The book to which I was referring was Dante Alighieri's Divine Comedy.

          Ah, I think the word "book" threw me off. In my head, the Divine Comedy is a poem. That, and it's not uncommon for games to spawn book deals.

           

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            MrWilson, Dec 3rd, 2010 @ 10:38am

            Re: Re: Re: Re:

            I realized afterwords that the use of the term "book" might be an issue. Yes, it's an epic poem, but it's often published in the physical medium referred to as a book.

            I think we associate "book" with "novel" or "prose" too often. You can have a "book of poetry," but we associate that as being multiple poems rather than one epic poem, akin to a "book of short stories," rather than a singular work.

             

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          DS, Dec 3rd, 2010 @ 10:17am

          Re: Re: Re:

          I was criticized for using a /sarcasm tag previously, but apparently it is warranted.

          Are you sure that they were not being sarcastic?

           

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      PaulT (profile), Dec 4th, 2010 @ 12:09am

      Re:

      "EA's inspiration was not authorized. They stole her idea"

      Do you notice the contradiction in this?

       

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        AndyD273 (profile), Aug 14th, 2012 @ 6:21am

        Re: Re:

        I believe the word you're looking for is irony.
        As in, isn't it ironic that she she might be mad that EA 'stole' the idea that she 'stole' from Dante, who probably 'stole' parts of it from Catholic literature and mythology...

         

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    Anonymous Coward, Dec 3rd, 2010 @ 8:39am

    Several things about the lawsuit confuse me:

    EA was not using the image on it's packaging, and Kotaku isn't selling the image, they were just showing it as a reference. So, it wasn't used for commercial gain. Can someone copyright an image in such a way that no one can refer to it or be inspired by it?

    Ea and Kotaku were nice enough to give credit to the artist, which ostensibly could improve her sales and awareness. She actually gained from it's use.

    Because Kotaku is basically acting as a news service, it's no different from Entertainment Tonight showing a movie poster when referencing it, or CNN showing a company logo in a story. The precedent is easy to see right at the top of Kotaku.com. There are 7 screenshots of game properties being use,d besides the Dante's image, to dress up their relevant articles.

     

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    interval (profile), Dec 3rd, 2010 @ 8:44am

    Infringement???

    There have been such diagrams of the Inferno since Dante Alighieri's books have been published, but that one is really cool. Sort of deffinative, you know?

     

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    scarr (profile), Dec 3rd, 2010 @ 9:09am

    Full size

    Gawker links to a site with a full-size image, which you can find with a little poking around: http://www.worldofdante.org/mapimages/inferno/inferno_full.jpg

     

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      scarr (profile), Dec 3rd, 2010 @ 9:10am

      Re: Full size

      I point this out because I couldn't figure out a damn thing from the tiny thumbnail.

       

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      MrWilson, Dec 3rd, 2010 @ 9:56am

      Re: Full size

      I always find it humorous when people put technically incorrect copyright notices on their works.

      That website lists the copyright notice on this page: http://www.worldofdante.org/inferno_detail.html, as:

      Source: Lindsay McCulloch, 2000. The copyright to the illustration of the map of Hell is held by Lindsay McCulloch. Publication (print or electronic) or commercial use of this drawing is strictly prohibited.

      It should be something like, "publication (print or electronic) or commercial use of this drawing is strictly prohibited, except where such use is fair use or is allowed by law."

      I've seen similar notices on DeviantArt a lot. 15 year old's post doodles they drew in their algebra class and then post in all caps that you're not allowed to even save copies of their drawings on your hard drive for personal use. It's as absurd as stating that no one can link to your website without your authorization.

      But then, the media companies do this all the time. The RIAA lawyers have argued in court that you can't even make backups of your own CD's. They try to pass off what they authorize as what is allowed by law. Which I guess makes sense since they have likely contributed substantially to the wording of much of the copyright legislation of the past several decades, but that doesn't mean their word is law (entirely or yet).

       

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    Anon, Dec 3rd, 2010 @ 9:09am

    If anything, Gawker's broad distribution probably increased awareness of McColloch's work. Complementary use, anyone?

     

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    Anonymous Coward, Dec 3rd, 2010 @ 10:07am

    How?

    How can anyone claim copyright on this? Dante's Inferno is based on a poem from the fourteenth century, before copyright law even existed.

    I thought copyright only lasted so many years, wouldn't the basic ideas and expressions of Dante's Inferno be public domain?

     

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      athe, Dec 3rd, 2010 @ 9:12pm

      Re: How?

      McCulloch's image is a new expression, thus it is copyrighted. The original expression Divine Comedy (and probably many others) would most definitely be in the public domain, however.

       

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    Rollie Cole (profile), Dec 4th, 2010 @ 6:50am

    Fair Use Factor #2

    Although Techdirt rarely makes mistakes, I think the description of factor #2 is a [slight] one. He says the major concern is published versus unpublished -- most copyright lawyers and teachers, I suspect, would say the major concern in factor #2 analysis is whether the material is "factual" or "non-factual" (fiction versus nonfiction; drawing/photo of real person versus imaginary person, etc.). They say that because the scope of protection is broader for nonfactual material. Published versus unpublished comes up more often in factor #4 analysis, although it is not completely dispositive even there -- some courts have held that there can be fair use of unpublished works in certain situations.

     

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    jimbo49, Dec 6th, 2010 @ 12:13pm

    Gawker Sued For Copyright Infringement For Showing Image That Inspired EA's Dante's Inferno

    when will this copyright stupidity end? before long, someone will be sued because they hold their c**k like someone else, or because they pee the same way as someone else! gotten way out of hand and is till being encouraged to continue to new heights by stupid governments and corrupt politicians!

     

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