Photographer sues capcom for 12 million dollars for using her photo in their games

[spartaman64]

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A photographer has filed a lawsuit against Capcom, accusing the Japanese video game giant of infringing her copyright by using her photos extensively in its best-selling video games.

Polygon reports that Judy A. Juracek filed her initial complaint in a Connecticut court yesterday.

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The 1996 book (and companion CD-ROM) at the center of this lawsuit is titled Surfaces, and the description states that it “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.”

Quote

In her lawsuit against Capcom, Juracek claims the company never contacted her for a license to use her photos commercially, and that the company used many of her photos to create environments, details, and even logos in games such as Resident Evil 4 and Devil May Cry. The photographer found at least 80 photos used in Capcom games, and the 200+ alleged infringements are documented in the massive court filing that spans 147 pages.

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Juracek is asking the court to award her actual damages, profits, exemplary damages, and (possibly) statutory damages, which could total $12 million or more (up to $150,000 for each of the 80 infringements plus attorney fees).

Source: https://petapixel.com/2021/06/05/photographer-sues-capcom-for-12m-for-using-her-photos-in-video-games/

 

I'm sort of torn on this since from what I've read the book doesn't specify the need for a commercial license or have any licensing details at all.  And the book says "ready to be used in your designs".

As much as I enjoy big corporations losing to stick it to the man court decisions set precedence and I don't want someone to make something similar like a website for stock images that says use the photos for whatever you want and then turn around and sue you for it since the website doesn't have statements about a proper license.

[Stahlmann]

Wait did i understand it correctly that she's basically sueing Capcom because they made textures of wood, stone, etc. and claims they're based on her images because they happen to also include wood, etc?

 

Or is it really full "pictures" that they implemented as ingame pictures?

[spartaman64]

2 minutes ago, Stahlmann said:

Wait did i understand it correctly that she's basically sueing Capcom because they made texture of wood, stone, etc. and claims they're based on her images because they happen to also include wood, etc?

 

Or is it really full "pictures" that they implemented as ingame pictures?

well they said they found her images when hackers did the capcom leak so they were probably using her photos in some fashion. 

[yian88]

Yeah, it kinda looks like her photos but she cant win because the objects in the photos arent hers, and it only includes a part of the photo, she cant prove other people didnt make similar photos in similar places.

[Spotty]

12 million dollars?? Damn. I should sue them for using my likeness in Resident Evil Village.

Spoiler

 

/s

 

I can understand graphical design teams using resources like this as reference images when designing things, so it would make sense for a design team to have these sorts of archives of design images. Looking at the comparisons shown in the article it looks like it's a lot more than artists using the photographs from the design book as reference images to create their own creations though. The similarities between the original image and what is used in game is too great, they're practically identical. I wonder if Capcom's artists just imported/converted the images to be used in the game, directly copying the images from the photographers design archive to be used as assets in the game. If that is the case then I do think the photographer should be entitled to compensation as Capcom is using their work.

 

Quote

Juracek says she received further confirmation of Capcom’s infringement through the November 2020 data breach, in which a hacker group used ransomware to allegedly steal 1TB of sensitive data. When Capcom chose not to pay the ransom, the group began sharing the data online. These leaked files contained several that matched image file names found on the Surfaces‘ companion CD-ROM.

“The file names for at least one of the images from the Capcom hacked files are the same file names as those used on the CD-ROM,” the lawsuit states. “For example, the file name for a metal texture image from the CD-ROM is ‘ME009’ and Capcom has ME009 stored in its files under that name and Capcom used this photograph in its game(s).”

It'll be interesting to see if the court accepts evidence that was stolen in an illegal hack and extortion attempt.

[Avocado Diaboli]

It's a clever idea of hers, release a book as a reference guide of materials along with a CD that contains all the files presented in the book and call them "ready-to-use", but never really specify if the purchase of the book also constitutes a license to actually use those images in commercial products. I mean, I'm just assuming that it's never clearly stated that this is the case. But honestly, I'd say that she might have a pretty strong case here, because she is the copyright holder of these images and simply releasing a book with a CD containing a bunch of images does not automatically mean that anyone who purchases this book has the rights to commercialize the contents of the CD. 

[StDragon]

25 years ago?!! Isn't there some limit of how far you can go back to sue someone for loss of intellectual property?

[TetraSky]

From the amazon page, the full back cover description : 

Quote

From the Back Cover

Looking for images of architectural materials? 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. Photographed by a designer for designers, these pictures show specific materials and how they change with time, weather, wear, and different lighting. Each section offers general views of the material, a gallery of commonly used or manufactured samples, and hundreds of specimens showing types and finishes in architectural settings. Captions provide information about the physical properties, dimensions, construction techniques, specific varieties of the material, and types and styles of treatments. Interviews with eight design professionals provide practical advice on how they approach visual research, and a comprehensive glossary of visual and technical terms offers a vocabulary for professional communication. An index of subject matter and materials makes it easy to find just the image you need. CD-ROM included: easy-to-use screen resolution TIFF files of every image!

If that's all the description says, then I would be under the impression I didn't need to contact them to use these files in my projects and that whatever I paid for the book/disc would cover the licensing cost.

It literally says it OFFERS files that are "ready to be used in your *stuff*". So unless it says somewhere on the physical product "contact *blank* for commercial licensing" or something similar, then I would take this as a shameless money grab from the photographer.

Yes, it's very likely to be their work from all the evidences found (from the filenames that were leaked by hackers being the same, to the textures and all). But sorry, you sold your photos.

 

If anything, that description further exemplify that these pictures can be used if you buy it (and looking at the reviews on Amazon, I somehow very much doubt they are also paying licensing fees).

 

Is it just something that is "par for the course" and is such common sense that everybody should know without them mentioning it anywhere ? They sold their pictures in a bundle, but whoever buys them is still expected to contact the photographer to give extra money if they want to use said pictures in anything, even if it's not actually explicitly mentioned ? What kind of business model is that.

[suicidalfranco]

Reminds me of this video

 

[Avocado Diaboli]

2 minutes ago, StDragon said:

25 years ago?!! Isn't there some limit of how far you can go back to sue someone for loss of intellectual property?

Well the US copyright act apparently has a statute of limitations of 3 years. However, courts mostly use the "discovery rule", which means that statute doesn't start counting until the copyright holder discovers that their copyright has been violated. I mean, there's a good reason to give a defendant the chance to still get something out of it, regardless of how much time has passed. 

[AndreiArgeanu]

might as well start taking a bunch of photos of gravel, walls and windows and then start suing companies whenever they make a game using textures that look similar to mine. Or do that and say that anyone can use the images in their work, and then start suing.

[Stahlmann]

14 minutes ago, AndreiArgeanu said:

might as well start taking a bunch of photos of gravel, walls and windows and then start suing companies whenever they make a game using textures that look similar to mine. Or do that and say that anyone can use the images in their work, and then start suing.

This works only if you're from the US. Pretty much any other court will just throw this case out of the window saying these are hollow claims.

[Kisai]

1 hour ago, spartaman64 said:

 

 

I'm sort of torn on this since from what I've read the book doesn't specify the need for a commercial license or have any licensing details at all.  And the book says "ready to be used in your designs".

This is the same argument of "I found it on google"

 

We all know how that argument doesn't hold water. Now, here's the thing, images have a hard time establishing a copyright on them because someone might sample a photo for something, then that sample gets reused in various projects. It's the same with sound effects, a lot of sound effects I hear in anime, I know have been sampled from Star Trek (eg NBC Sound library) or some other show, because they probably came from a license at some point, and it's only relatively recently that rights owners have had an easy way to find infringement because of things like ContentID.

 

However photography is a bit behind on this. Google Images will sometimes find the source image for any specific piece, but usually it will require some human effort to check if that "large" image is actually the source or an upscaled/ML-scaled image.

 

1 hour ago, spartaman64 said:

As much as I enjoy big corporations losing to stick it to the man court decisions set precedence and I don't want someone to make something similar like a website for stock images that says use the photos for whatever you want and then turn around and sue you for it since the website doesn't have statements about a proper license.

I've seen youtubers use the images straight off the stock websites (watermark and all) 

 

Again like above, the problem is that it's very difficult to trace where images came from, and what their licenses are. Adobe lets you embed this stuff into JPG's, but most other image formats have no metadata/easily-stripped (like when you put photos on twitter or instagram) because they insist on recompressing them.

 

Like unless an image is someone's face, or a specific kind of artwork (eg "the scream"), most digital works of art aren't readily identified, by anyone who didn't already know the artist. Like I know of a handful of artists I follow on twitter, who like clockwork complain that t-shirt sites have stolen their images, yet again.

 

So things that are used as textures? I put that in the same category as sound effects. There is no guarantee that any specific texture IS the texture being claimed, especially for things like brick and cement, which can be made by anyone from scratch. Wood and various organic textures are a lot harder to be a coincidence. But most inorganic things (eg cobblestone, glass and plastics) can be replicated directly by raytracing, no textures needed.

 

While I certainly think Capcom (and maybe other video game companies) might have incorrectly licensed the textures, the burden of proof is on the claimant for what games they might have been commercially shipped in. Even then, I don't see "12 million" in damages, as this falls under the fair-use aspect, where I doubt anyone playing these games will readily identify those textures as being important to the game (unlike music, which people will associate with the game.) Capcom likewise could patch-replace those textures retroactively to any game released on PC or PS3 and later, because they're not really that important.

 

 

[spartaman64]

9 minutes ago, Kisai said:

This is the same argument of "I found it on google"

 

We all know how that argument doesn't hold water. Now, here's the thing, images have a hard time establishing a copyright on them because someone might sample a photo for something, then that sample gets reused in various projects. It's the same with sound effects, a lot of sound effects I hear in anime, I know have been sampled from Star Trek (eg NBC Sound library) or some other show, because they probably came from a license at some point, and it's only relatively recently that rights owners have had an easy way to find infringement because of things like ContentID.

 

However photography is a bit behind on this. Google Images will sometimes find the source image for any specific piece, but usually it will require some human effort to check if that "large" image is actually the source or an upscaled/ML-scaled image.

 

I've seen youtubers use the images straight off the stock websites (watermark and all) 

 

Again like above, the problem is that it's very difficult to trace where images came from, and what their licenses are. Adobe lets you embed this stuff into JPG's, but most other image formats have no metadata/easily-stripped (like when you put photos on twitter or instagram) because they insist on recompressing them.

 

Like unless an image is someone's face, or a specific kind of artwork (eg "the scream"), most digital works of art aren't readily identified, by anyone who didn't already know the artist. Like I know of a handful of artists I follow on twitter, who like clockwork complain that t-shirt sites have stolen their images, yet again.

 

So things that are used as textures? I put that in the same category as sound effects. There is no guarantee that any specific texture IS the texture being claimed, especially for things like brick and cement, which can be made by anyone from scratch. Wood and various organic textures are a lot harder to be a coincidence. But most inorganic things (eg cobblestone, glass and plastics) can be replicated directly by raytracing, no textures needed.

 

While I certainly think Capcom (and maybe other video game companies) might have incorrectly licensed the textures, the burden of proof is on the claimant for what games they might have been commercially shipped in. Even then, I don't see "12 million" in damages, as this falls under the fair-use aspect, where I doubt anyone playing these games will readily identify those textures as being important to the game (unlike music, which people will associate with the game.) Capcom likewise could patch-replace those textures retroactively to any game released on PC or PS3 and later, because they're not really that important.

 

 

no its like if i ask a photographer if i can use their photos and they say sure use it for whatever you want. and then later they sue me because they didnt specifically say i can make money with them

 

the book that someone at capcom supposedly bought gave a cdrom of pictures that they say "ready to be used in your designs"

so the question here basically is do you need to say ok for commercial use for something to be ok for commercial use or do you need to say not for commercial use for something to be not for commercial use.

[TheReal1980]

Only 12 million dollars? Why not 120 million? Let's make it a cool Billion maybe?

[wanderingfool2]

47 minutes ago, Spotty said:

It'll be interesting to see if the court accepts evidence that was stolen in an illegal hack and extortion attempt.

I suspect that it will be allowed.  Wikipedia, while not the best source, says that the exclusionary rule doesn't apply to civil cases (I'm assuming that there are limitations of course).  In the case of textures though, even if the evidence wasn't initially allowed, I suspect that they would be eventually allowed; because there is enough to show that the art was probably the source of the textures at which point you would have enough to do discovery on Capcom.

 

 

45 minutes ago, StDragon said:

25 years ago?!! Isn't there some limit of how far you can go back to sue someone for loss of intellectual property?

Well as long as the defendant just recently learned about it.  Anyways, it's not just 25 years ago, the Resident Evil 4 box art for the Switch release was released in 2019.  So they are still releasing items that are "infringing" (Not entirely sure whether the book acts as a license, would all depend on the wording).

 

10 minutes ago, Kisai said:

Like unless an image is someone's face, or a specific kind of artwork (eg "the scream"), most digital works of art aren't readily identified, by anyone who didn't already know the artist. Like I know of a handful of artists I follow on twitter, who like clockwork complain that t-shirt sites have stolen their images, yet again

Well I think if you were to produce something commercially, the general rule is if you don't know the source don't use it.

 

13 minutes ago, Kisai said:

While I certainly think Capcom (and maybe other video game companies) might have incorrectly licensed the textures, the burden of proof is on the claimant for what games they might have been commercially shipped in. Even then, I don't see "12 million" in damages, as this falls under the fair-use aspect, where I doubt anyone playing these games will readily identify those textures as being important to the game (unlike music, which people will associate with the game.) Capcom likewise could patch-replace those textures retroactively to any game released on PC or PS3 and later, because they're not really that important.

First, this clearly doesn't fall under fair-use.  It really bothers me that people assume this.  There is nothing fair-use about this case.

 

I'm assuming you didn't read the article on the website?  While yes the burden of proof is on the claimant, it's quite clear that she has already proved that her textures were used....including on the RE4 box art (which the glass texture was super-imposed to show that it matched up).  Aside from that, the data leak had the exact same texture names as she labelled it on the CD...which means the balls in Capcom's court now to show that they were authorized to use it.

 

As for the 12 million, yea it's unlikely she will get that given the current evidence.  She would have to prove that they willfully knew they didn't have the rights to the images to use (with that said, that might be provable in the discovery process).  The $12 million was based on 80 infringements at a maximum value of 150k each (in filings you always ask for the moon, because that way if you can prove things you likely will get a higher amount in the end...if she asked for the minimum, which would be $20,000 ($250 per picture) she would be limiting herself).  Actually, if Capcom showed they thought they had the license then the penalty drops to $2.4 million (assuming she doesn't find more pictures during the discovery process).

 

 

My opinion:

This is all going to come down to the wording in the book.  In her suit she suggests that the book references to contact her regarding licensing; so if true then she does have a case...but I'm very skeptical of this as in the case filed there wasn't a quote in regards to this (but quotes like "© 1996 by Judy A Juracek All rights reserved").  I think this entire case will come down to whether the book and included CD implied that Capcom had a license.

[da na]

Has it been confirmed via metadata it's the exact same image? Because there's a lot of cobblestone and wood in the world, that texture could be of basically anyone's picture.

[wanderingfool2]

13 minutes ago, wat3rmelon_man2 said:

Has it been confirmed via metadata it's the exact same image? Because there's a lot of cobblestone and wood in the world, that texture could be of basically anyone's picture.

No it can't be anyone's picture. If you look at the article, you can clearly see the image comparisons and the fact that they are pretty much copies.  (That excludes the fact that the file names were the same in the data leak)

[Master Disaster]

2 hours ago, spartaman64 said:

I'm sort of torn on this since from what I've read the book doesn't specify the need for a commercial license or have any licensing details at all.  And the book says "ready to be used in your designs".

That's not how copyright works and I'm 99% sure Capcom would know that.

 

Essentially, as soon as she creates an image she is automatically given copyright, no need to apply for anything, just the creation of an original work is all that's needed.

 

Unless she expressly states they are free and open for anybody to use in any context, Capcom have to, by law, at least ask her permission to use them at all and if its for a retail project then the stakes are even higher. She has complete control over who uses them and how much she wants to charge for the privilege.

 

As with everything law though, its not a binary situation. The courts will take a look at exactly what she said in the book, likely ask her for context, they'll also check whether others have used the images (if possible) and if she has precedence on charging for her work. If she has never bothered about it before they might decide she is just trying to get rich quick though her defence will quickly point out that its not just one or two images, its 200.

 

1 hour ago, Kisai said:

While I certainly think Capcom (and maybe other video game companies) might have incorrectly licensed the textures, the burden of proof is on the claimant for what games they might have been commercially shipped in. Even then, I don't see "12 million" in damages, as this falls under the fair-use aspect, where I doubt anyone playing these games will readily identify those textures as being important to the game (unlike music, which people will associate with the game.) Capcom likewise could patch-replace those textures retroactively to any game released on PC or PS3 and later, because they're not really that important.

 

 

She has proof, they found full copies of her photos contained in the recent Capcom leak.

 

No, this is not fair use, at all.

 

She would still be entitled to retroactive payment.

[spartaman64]

8 minutes ago, Master Disaster said:

That's not how copyright works and I'm 99% sure Capcom would know that.

 

Essentially, as soon as she creates an image she is automatically given copyright, no need to apply for anything, just the creation of an original work is all that's needed.

 

Unless she expressly states they are free and open for anybody to use in any context, Capcom have to, by law, at least ask her permission to use them at all and if its for a retail project then the stakes are even higher. She has complete control over who uses them and how much she wants to charge for the privilege.

 

As with everything law though, its not a binary situation. The courts will take a look at exactly what she said in the book, likely ask her for context, they'll also check whether others have used the images (if possible) and if she has precedence on charging for her work. If she has never bothered about it before they might decide she is just trying to get rich quick though her defence will quickly point out that its not just one or two images, its 200.

 

She has proof, they found full copies of her photos contained in the recent Capcom leak.

 

No, this is not fair use, at all.

 

She would still be entitled to retroactive payment.

what im saying is that the book states that the images are there for people to use in their designs. so theoretically by buying the book you are allowed to use the images. what she is claiming is that there isnt a clause specifying commercial use so they are not allowed to use it for commercial use. so the question is if you were given permission to use images and the permission doesnt exclude or include commercial use can you use it for commercial use?

[JZStudios]

2 hours ago, spartaman64 said:

I'm sort of torn on this since from what I've read the book doesn't specify the need for a commercial license or have any licensing details at all.  And the book says "ready to be used in your designs".

As much as I enjoy big corporations losing to stick it to the man court decisions set precedence and I don't want someone to make something similar like a website for stock images that says use the photos for whatever you want and then turn around and sue you for it since the website doesn't have statements about a proper license.

"Ready to be used" doesn't mean free. Quixel and Poliigon are both "Ready to use" but you still have to pay for it.

Stock photos are also usually pretty clear about the CC license, but if they don't verify the image uploaders they can get a lot of stolen images on their sites. Either way, if they say it's CC-0 then it's CC-0.

 

2 hours ago, yian88 said:

Yeah, it kinda looks like her photos but she cant win because the objects in the photos arent hers, and it only includes a part of the photo, she cant prove other people didnt make similar photos in similar places.

That's not how this works. It's not a picture of the Eiffel tower. The odds of someone else taking a picture of the EXACT piece of wood or stone in a pixel perfect manner is pretty slim.

And yes, using a part of the image still infringes. She's not arguing for the objects, she's arguing for the stolen textures.

 

2 hours ago, TetraSky said:

From the amazon page, the full back cover description : 

An Amazon description is not a good place to find CC information. Again, an easy index and "ready to use" doesn't mean free.

But if the license isn't explicitly stated anywhere in the book, there's a case against her.

 

1 hour ago, Stahlmann said:

This works only if you're from the US. Pretty much any other court will just throw this case out of the window saying these are hollow claims.

That would be a shit court if they look at identical images and say they aren't the same. Maybe they're Chinese. (Not a racist remark, and actual fact.)

 

1 hour ago, Kisai said:

There is no guarantee that any specific texture IS the texture being claimed, especially for things like brick and cement, which can be made by anyone from scratch. But most inorganic things (eg cobblestone, glass and plastics) can be replicated directly by raytracing, no textures needed.

What? You can directly compare the pixels. You can flip back and forth between the images, it's not going be the same.

I have no idea what you're talking about as far as ray tracing cobblestones or what that possibly has to do with textures being stolen.

 

1 hour ago, spartaman64 said:

the book that someone at capcom supposedly bought gave a cdrom of pictures that they say "ready to be used in your designs"

so the question here basically is do you need to say ok for commercial use for something to be ok for commercial use or do you need to say not for commercial use for something to be not for commercial use.

Quite literally yes, That's what the CC- licenses are for. You can do CC-0, which is free, you can do it with copyright owners permission only, you can do it with a license, etc. These rules have been in place for a while.

[Master Disaster]

Just now, spartaman64 said:

what im saying is that the book states that the images are there for people to use in their designs. so theoretically by buying the book you are allowed to use the images. what she is claiming is that there isnt a clause specifying commercial use so they are not allowed to use it for commercial use. so the question is if you were given permission to use images and the permission doesnt exclude or include commercial use can you use it for commercial use?

And now you understand why judges have one of the hardest jobs on the planet. I would say no since copyright is kind of unique in that she can, simultaneously & legally, tell company X they can use her stuff for free, tell company Y they have to pay her and tell company Z they can't use them at all. She quite literally has total control.

 

The ambiguity comes from the phrase you quoted and she will have to explain herself to the courts before the judge will even hear the case.

 

I'm actually gonna forward this to Leonard French since he is an actual copyright attorney, I'm sure he'd do a video on this one (I'd guess he probably has already been sent this numerous times TBH)

[spartaman64]

6 minutes ago, JZStudios said:

"Ready to be used" doesn't mean free. Quixel and Poliigon are both "Ready to use" but you still have to pay for it.

Stock photos are also usually pretty clear about the CC license, but if they don't verify the image uploaders they can get a lot of stolen images on their sites. Either way, if they say it's CC-0 then it's CC-0.

 

That's not how this works. It's not a picture of the Eiffel tower. The odds of someone else taking a picture of the EXACT piece of wood or stone in a pixel perfect manner is pretty slim.

And yes, using a part of the image still infringes. She's not arguing for the objects, she's arguing for the stolen textures.

 

An Amazon description is not a good place to find CC information. Again, an easy index and "ready to use" doesn't mean free.

But if the license isn't explicitly stated anywhere in the book, there's a case against her.

 

That would be a shit court if they look at identical images and say they aren't the same. Maybe they're Chinese. (Not a racist remark, and actual fact.)

 

What? You can directly compare the pixels. You can flip back and forth between the images, it's not going be the same.

I have no idea what you're talking about as far as ray tracing cobblestones or what that possibly has to do with textures being stolen.

 

Quite literally yes, That's what the CC- licenses are for. You can do CC-0, which is free, you can do it with copyright owners permission only, you can do it with a license, etc. These rules have been in place for a while.

from what i understand there was zero information about any kind of licensing with this book just a sort of written permission in the book. but if you need a commercial license regardless of any communication then shes in the right i guess

my friend commissioned an art work and she wanted to use it as a twitch emote so she contracted the artist and got permission via discord. so does that mean the artist can still sue her if she didnt get a proper commercial license?

[Master Disaster]

5 minutes ago, JZStudios said:

But if the license isn't explicitly stated anywhere in the book, there's a case against her.

Nah, copyright is granted at the point of creation, she doesn't have to state any license agreements unless she wishes to expressly give up some of her rights. No license means usual rules apply.

[GDRRiley]

7 minutes ago, spartaman64 said:

what im saying is that the book states that the images are there for people to use in their designs. so theoretically by buying the book you are allowed to use the images. what she is claiming is that there isnt a clause specifying commercial use so they are not allowed to use it for commercial use. so the question is if you were given permission to use images and the permission doesnt exclude or include commercial use can you use it for commercial use?

at least as I interpret it, its use them as ideas and examples then create your own. people aren't going to be able to walk outside and grab a picture of some of these textures

1 minute ago, spartaman64 said:

from what i understand there was zero information about any kind of licensing with this book just a sort of written permission in the book. but if you need a commercial license regardless of any communication then shes in the right i guess

yeah its usually ask and pay for commercial and assume you don't have it, not assume you do