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

[Master Disaster]

3 minutes 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

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?

See above, there doesn't have to be. There's no copyright license on an LTT video on YouTube, doesn't mean you can use it.

[spartaman64]

1 minute ago, Master Disaster said:

See above, there doesn't have to be. There's no copyright license on an LTT video on YouTube, doesn't mean you can use it.

but if i ask linus if i can use the video and he said yes can he still sue me if i didnt obtain a proper license from him

[poochyena]

This doesn't make sense. She owns the photos, not the architecture in the photos. If capcom copied the architecture for their game, the owner or designers of the architecture should be the ones suing, not the photographer. Photographers can't even sell photos of other people's architecture unless they have permission from the owner.

[spartaman64]

2 minutes ago, GDRRiley said:

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

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

 

“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 guess its not clear but i interpret that as you can use it in a more direct way also. 

[Master Disaster]

Just now, spartaman64 said:

but if i ask linus if i can use the video and he said yes can he still sue me if i didnt obtain a proper license from him

No, a verbal agreement is a contract though without proof its your word against his but generally, if you ask and they say yes then you're good.

[JZStudios]

11 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?

There's a non-commercial CC- license. See here: https://creativecommons.org/licenses/

The big one here could be CC-BY-NC, and maybe ND.

It's plausible that the book is sold on the premise of not being a commercial license. I.e. You can use it in personal projects, or for demonstration purposes like 3d modelling and rendering as long as you aren't expressly making money from the used assets.

[poochyena]

2 minutes ago, Master Disaster said:

No, a verbal agreement is a contract though without proof its your word against his but generally, if you ask and they say yes then you're good.

right, a "proper license" can be as simple as an email from linus replying "yes" to "can I use your video for commercial purposes?"

[Master Disaster]

5 minutes ago, poochyena said:

This doesn't make sense. She owns the photos, not the architecture in the photos. If capcom copied the architecture for their game, the owner or designers of the architecture should be the ones suing, not the photographer. Photographers can't even sell photos of other people's architecture unless they have permission from the owner.

Only partially true. It depends on whether the owners of the "architecture" state that you cannot resell images.

 

You can take a picture of the Statue Of Liberty then sell it, nobody cares but if you do the same for the Eiffel Tower the French government might hunt you down since they expressly forbid the reselling of images.

[spartaman64]

4 minutes ago, Master Disaster said:

No, a verbal agreement is a contract though without proof its your word against his but generally, if you ask and they say yes then you're good.

thats the issue then there is a sort of agreement written in the book that you can use the images but the grey area is does that include commercial uses where they earn money. if i ask linus "can i use your video" and he said "yes". then he finds out i made a million dollars from something i made referencing his video does he have a case to sue me since he didnt specifically say i can earn money off of it.

[Master Disaster]

Just now, spartaman64 said:

thats the issue then there is a sort of agreement written in the book that you can use the images but the grey area is does that include commercial uses. if i ask linus "can i use your video" and he said "yes". then he finds out i made a million dollars from something i made referencing his video does he have a case to sue me since he didnt specifically say i can earn money off of it.

Pass, copyright law is like being waist deep in horse manure and it takes people much cleverer than us to work these kinds of issues out

[JZStudios]

9 minutes 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

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?

Then the onus is on her to provide and prove that information. The fact is Capcom used a lot of her work and she wasn't explicitly contacted about licensing it.

No, so long as the artist was paid their due, knew what it was for, and agreed to it. Capcom didn't commission this, this is more like if your friend just stole someone else's artwork and used that instead.

10 minutes ago, Master Disaster said:

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.

Figured, but there is the argument that she's selling these, they weren't freely distributed. If the book doesn't explicitly mention the copyrights, it could be read as the book purchase being the licensing rights. Either way, Capcom probably should've contacted her.

[Master Disaster]

2 minutes ago, JZStudios said:

Then the onus is on her to provide and prove that information. The fact is Capcom used a lot of her work and she wasn't explicitly contacted about licensing it.

Yep, they'll even look at her history of licensing out her work to check if commercial licensing is normal or not. That said though, 200 breaches (allegedly) is a bit egregious.

[JZStudios]

8 minutes ago, poochyena said:

This doesn't make sense. She owns the photos, not the architecture in the photos. If capcom copied the architecture for their game, the owner or designers of the architecture should be the ones suing, not the photographer. Photographers can't even sell photos of other people's architecture unless they have permission from the owner.

What? This is like someone steals your rug and you say they didn't steal anything because you still have the building.

 

6 minutes ago, Master Disaster said:

Only partially true. It depends on whether the owners of the "architecture" state that you cannot resell images.

 

You can take a picture of the Statue Of Liberty then sell it, nobody cares but if you do the same for the Eiffel Tower the French government might hunt you down since they expressly forbid the reselling of images.

The Eiffel Towers lighting system is also still under copyright, so it's illegal to take pictures of it at night. Which is probably more the reason, but I don't know French laws. The Statue of Liberty has passed the copyright period.

 

7 minutes ago, Master Disaster said:

Pass, copyright law is like being waist deep in horse manure and it takes people much cleverer than us to work these kinds of issues out

Disagree, it takes people more argumentative. Law is like war, you just keep going until one side's human losses are too great and your nation collapses.

[spartaman64]

9 minutes ago, JZStudios said:

Then the onus is on her to provide and prove that information. The fact is Capcom used a lot of her work and she wasn't explicitly contacted about licensing it.

No, so long as the artist was paid their due, knew what it was for, and agreed to it. Capcom didn't commission this, this is more like if your friend just stole someone else's artwork and used that instead.

Figured, but there is the argument that she's selling these, they weren't freely distributed. If the book doesn't explicitly mention the copyrights, it could be read as the book purchase being the licensing rights. Either way, Capcom probably should've contacted her.

except the book communicated to capcom that they can be used for their designs. i agree that it was careless of capcom to use them without being sure but despite that im not sure if i want her to win this considering the ramifications that it can make anything other than a legal license agreement draw up by a lawyer not applicable. i guess my example was not the best since the artist explicitly gave permission for commercial use and understood that its for commercial use. but what about more vague blanket permissions like if i ask linus if i can use his video for a presentation and he says yes. then later he finds out i used it to get a million dollar contract and he sues me because he says he thought i was asking about a school presentation.

[JZStudios]

Just now, spartaman64 said:

except the book communicated to capcom that they can be used for their designs. i agree that it was careless of capcom to use them without being sure but despite that im not sure if i want her to win this considering the ramifications that it can anything other than a legal license agreement draw up by a lawyer not applicable. i guess my example was not the best since the artist explicitly gave permission for commercial use and understood that its for commercial use. but what about more vague blanket permissions like if i ask linus if i can use his video for a presentation and he says yes. then later he finds out i used it to get a million dollar contract and he sues me because he says he thought i was asking about a school presentation.

It really doesn't though, that's what you're failing to understand. All textures are easy to use and implement, that doesn't make them free. Again, Quixel. They sell stuff ready to use, yet at the end of the credits in every game, there they are, being licensed. This is standard issue in the industry.

 

You're other example is also bad. Just in this particular case, if you ask Linus to use his video, that doesn't necessarily mean you get to download it, reupload on your own, and make revenue off it. You could just simply link his YouTube video, thus giving him credit and he's still making money off it. Which logically would be the assumption, and you wouldn't have to ask for. If you did want to do that, you would have to explicitly ask about reuploading it and enabling revenue from it.

 

Let's go back to photos, since that's what we're talking about. If you want to use an image that isn't CC-0 and make money off of it, you need to credit the image author and ask for permission. Capcom seemingly did neither.

You're acting like she expressly gave Capcom licensing agreement, then changed her mind. That's not what happened. Capcom used her stuff illegally (allegedly) and she wants financial compensation for their using her images to make money. I honestly don't understand what's so complicated.

[Franck]

1 hour ago, TheReal1980 said:

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

12 is quite high. As the article says that's about 150,000 per images and the highest lawsuit for a single image I ever had to deal with was 35k so I guess they inflated the price because it has much more exposure than a smaller company. Also the amount is often multiplied by the amount of time the infringement lasted. Mine the 35k was for a 8 years infringement so that's 4,400$ / year still not close to her number

[spartaman64]

2 minutes ago, JZStudios said:

It really doesn't though, that's what you're failing to understand. All textures are easy to use and implement, that doesn't make them free. Again, Quixel. They sell stuff ready to use, yet at the end of the credits in every game, there they are, being licensed. This is standard issue in the industry.

 

You're other example is also bad. Just in this particular case, if you ask Linus to use his video, that doesn't necessarily mean you get to download it, reupload on your own, and make revenue off it. You could just simply link his YouTube video, thus giving him credit and he's still making money off it. Which logically would be the assumption, and you wouldn't have to ask for. If you did want to do that, you would have to explicitly ask about reuploading it and enabling revenue from it.

 

Let's go back to photos, since that's what we're talking about. If you want to use an image that isn't CC-0 and make money off of it, you need to credit the image author and ask for permission. Capcom seemingly did neither.

You're acting like she expressly gave Capcom licensing agreement, then changed her mind. That's not what happened. Capcom used her stuff illegally (allegedly) and she wants financial compensation for their using her images to make money. I honestly don't understand what's so complicated.

except capcom didnt make a video game of just her pictures. i thought my example is pretty analogous i use snippets of linus' video in a bigger presentation that has my own stuff also. capcom used some of her photos in a bigger project of a lot of other photos also. and we both got vague permissions that doesnt specify whether its ok for commercial use. linus told me i can use it in a presentation. the book told capcom that they can use the photos in their designs

[poochyena]

43 minutes ago, JZStudios said:

What? This is like someone steals your rug and you say they didn't steal anything because you still have the building.

no, its more like buying a cake recipe book, baking the cakes from that book, selling those cakes, and then getting sued for stealing cakes.

If they used those photos in the game, that could maybe be an issue, but most of these seem to just use the object in the photos as reference for their own work. What she owns the copyright to is the photos, not the objects in the photos.

[Avocado Diaboli]

18 minutes ago, poochyena said:

If they used those photos in the game, that could maybe be an issue, but most of these seem to just use the object in the photos as reference for their own work. What she owns the copyright to is the photos, not the objects in the photos.

Have you actually looked at the linked article from the original post? It quite clearly shows how the copyrighted photos were used as textures in the game as well as on the cover art.

[poochyena]

3 minutes ago, Avocado Diaboli said:

Have you actually looked at the linked article from the original post? It quite clearly shows how the copyrighted photos were used as textures in the game as well as on the cover art.

yes, some look directly copied some some look like they could have been remade, creating a new texture as the images as reference.

[CerealExperimentsLain]

2 hours ago, spartaman64 said:

but if i ask linus if i can use the video and he said yes can he still sue me if i didnt obtain a proper license from him

 

2 hours ago, Master Disaster said:

No, a verbal agreement is a contract though without proof its your word against his but generally, if you ask and they say yes then you're good.

This is correct, if Linus or a any rep for LMG with authority to do so said 'Hey, yeah sure you can use this video in this context' over a discord DM, yes, that would be a contract of a limited license.  This would be a 'real license', any 'hand shake agreement' is a real contract.

However it would also be a STUPID license as the record is a pain to prove vs a more official route of communication.  If someone pulls some nonsense, you'd rather have something in a much more permanent format to go 'Bam, right here they said I could use it the way I did.'.

[a_monospace_odyssey]

The way she wrote originally about people being able to use the content is a little vague.

 

It's worded in a way that would definitely lead me, if I purchased this book back in the day, that I would be able to use this content.

 

Sure, it does say "ready to be used" which doesn't necessarily mean "free to use" but, now we're in a situation where I've already paid for a catalog that doesn't seem to mention licensing or further fees in any capacity, encouraging me to use it's content.

 

All the cases where a literal photo was used as the texture is kind of cut and dry, Capcom will likely have to settle out of court just over that. (Probably the goal)

 

A lot of them are about replicated designs in-game though, where capcom had to actually create their own assets.

 

The idea that I took a picture of someone else's door, and then someone thought it had a cool design on it and remade it for a video game door, and then asking for 150k in "damages" for the art that I took a photo of, instead of the actual photo being used, is some SERIOUS piggyback cash grabbing. 

 

I mean, that's also cut and dry in capcom's favor this time. Unless everything she takes pictures of is now also her intellectual property, in which case, why isn't everyone just constantly claiming copyright on everything ever.

 

Really, it's just throwing all the darts at the wall and hoping enough sticks to get a quick payday. Capcom will probably just replace the images since it's very easy compared to back in the day.

 

Jolly good joust.

[Heliian]

There is no doubt that Capcom used the photos directly in their games.  

 

Design teams are not stupid, they used this stash of photos to quickly fill in textures and save precious time and money.  Capcom should have contacted her for permission and paid for commercial use. 

 

I'm sure Capcom will argue that it was fair use as they paid for the book, even though they know better but they wrongly assumed nobody would notice.

 

My take on the books fair use would be for personal and non commercial products.  As soon as it's monetized then the artist should be entitled to compensation. 12 million is steep but it's a starting point.

 

 

 

 

 

[-rascal-]

6 hours ago, Stahlmann said:

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?

 

6 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.

 

5 hours 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.

 

If you refer to the article, when the Capcom files were leaked, it was THEN she found out about it.

It's not about... just take a bunch pictures of "wood" and "gravel".... and copyright it.

Capcom didn't even BOTHER to re-name the photos they "borrowed."

The "G079.png" (or whatever) from her CD-ROM, was still "G079.png" when Capcom used it in their game.

 

Basically, right-click save "LTTs_cool_background.jpg".

Edit game code, use "LTTs_cool_background.jpg" for my game's map background.

 

Quote

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).

 

 

6 hours 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?

She didn't know until the files stolen in the ransomware breach was released by the hackers, back in November 2020.

If the files were never exposed to the public, she would have no idea.

[wanderingfool2]

For those curious, this is the filing

https://www.scribd.com/document/510767495/Juracek-vs-Capcom-via-Polygon

 

3 hours ago, JZStudios said:

The fact is Capcom used a lot of her work and she wasn't explicitly contacted about licensing it

Well that hasn't been shown.  All we have is her court filing (from my knowledge Capcom hasn't responded to the suit yet).  That means for all we know, Capcom might pull out a licensing agreement from 25 years ago; or some documents that they got permission.  It's actually happened before in the gaming industry, where a 3rd party developer created something and got in trouble and sued for not licensing only for the person suing to be presented with documentation that it was licensed.  Who knows, given the timeframe as well, it could be that Capcom got the licenses from a company they acquired.  We won't know until Capcom responds.

 

The fact is, unless we have the book and see what is said inside we can't really tell...remember this is back in the time that CD libraries were sold with collections of sound effects to be used, so it wouldn't be unreasonable that this could have been marketed in such a way that implied it was an effects library.  Especially given that a CD was given with the images on it as well.

 

As I've mentioned, in her filing there were quotes referring to copyright dates, but when it comes down to quoting the specific lines about licensing they were oddly absent (which makes me wonder).  Anyways here is a quote from the lawsuit:

 

Quote

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. 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.

*I get that this might not be the case but it really seems to be implying that maybe she was licensing the HQ files for extra.  This just shows though that it will all depend on what the book actually says (or whether Capcom did contact her, but maybe via different party).