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

[wanderingfool2]

1 hour ago, Kisai said:

You have a real house, you have a photo of a house, and you have a house created inside a computer. No matter which way you spin it, you have not stolen that real world house, even if you've taken photos of that house to build that house inside the computer. You obviously could not create that house from scratch without the photos, but that doesn't mean you simply put the photos in the computer to make the house, which is where the infringement would come from. 

It's not that they recreated the original object using her photos as a reference, it's that they literally used her photos as parts of the textures.  Sure, if they saw the ram head statue and changed it to a 3d architecture and skinned the 3d model by themselves it wouldn't be violating copyright...but they didn't.  They used her photo as the texture (in some cases with modifications to the image, but used the image nonetheless)

 

1 hour ago, Kisai said:

You could just as easily re-create that pattern yourself. Bricks are a very basic thing you learn in painting

You can create bricks yourself, but they didn't and it's quite clear they didn't.  If you ask 1000 people to paint realistic bricks, yes they will look all similar but if you compare all 1000 you will be able to identify one from another.  In this case you can match up the brick pattern, cracks in bricks, differently shaded bricks, etc.  So yes, the concept of bricks isn't copyrightable, but the actual image of it is.

 

1 hour ago, Kisai said:

I'm not saying capcom did not use it at some point, but you can not prove that is in the game without reverse engineering the retail game

Reverse engineering would be allowed as evidence...but it doesn't need to come to that even.  Page 23 is proof that you can.  It's clear that the texture matches up with the photo.

 

Literally at this stage the question isn't whether or not Capcom copied and used her photos as textures, it's about why Capcom thought they could (whether they had a license, thought they had a license, or some employee just decided to use them).  This is civil court, she just needs to prove that Capcom likely used her photos as textures, which given the examples from the game and the hack they would have an uphill battle.

[JZStudios]

On 6/8/2021 at 4:47 PM, Bombastinator said:

Already talked about this one with @wanderingfool2.  The issue seems to be if this was or was not effectively a first contact with capcom or not.  If it is it probably shouldn’t be news though.  Or at least the kind of news worthy of such discussion. Chances are quite high that it comes to nothing.

Yeah, well that post was on a different page.

 

23 hours ago, Kisai said:

You are reading something completely different in this thread than everyone else. No that is nothing like what I am arguing about. At no point do I make the claim that people can be generated, and neither does Judy make any such claims about people. 

 

Wood, Metal, Ceramics, Plastic, Glass, Clouds, Dirt, Brick, Cement, etc that is all things that can be procedurally generated. That is stuff that someone could, if they wanted to generate textures to look like, which is what that pdf I linked suggested. 

 

Or are you seriously thinking that Resident Evil is built upon just the 80 images referenced in the filing? Because that's just laughable.

 

Here, I'll even prove it. Here is an actual texture from RE4 GC

Now, what does this look like to you? Dirt? Leaves? A bunch of trash on top of a metal panel?

 

 

What about this one

 

Rocks? 

 

Notice the repeating in the image. Were these made by Capcom? Were they borrowed from some texture library? Does it matter? one 256x256 texture is 360kb out of a game that is 3GB. So let's assume for the sake of argument that all 80 of the images claimed were in RE4. That's 29MB out of 3GB, or a little less than 1% of a back-of-the-envelope estimate. It's likely the HD PC version is even less, as it's 15GB, and the vast majority of that is going to be voice acting in more than one language.

 

If the damages were based on how much these images make up the game 1% of all global sales of RE4 (10.4 million), she would be entitled to maybe 110K. That's less than what she would get for the claim on the infringement of the book, which is 150,000 for a single infringement of the book as a whole.

 

There's a lot to look at here, and quite frankly, everyone in this thread is just speculating on things that they don't know about. 

Procedural textures are clearly recognizable as non-natural, and a tiled texture, doesn't mean procedural. You're the only one here reading into this in such a manner, because it's so mind bogglingly incorrect no one else has this argument. You're claiming that clearly real world textural environments can easily be procedurally generated, and I'm telling you for a fact that's not true. Number one instance is lighting and shadows. Procedural textures are fundamentally incapable of doing that. If an image has self occlusion, varying lighting, or shadows, especially self shadows, it's not procedural.

 

They can be procedurally generated, and they look like shit. Again, procedural generation has no bearing on this case because it's not involved in any manner. I... you know what, for arguments sake, what exactly do you think a procedural texture is? Because I'm 99% certain you actually have no idea. And once again, no, that .pdf didn't mention procedural textures or their generation at all, that .pdf was explicitly talking about volumetric layer data.

 

Who the fuck said that? When did I say the entire game is textured solely using her images? Now I'm more confused. What the hell do you think the issue is here? She's not claiming every texture in the game is hers, just the ones that are, surprise, hers. The ones that aren't hers, she's not claiming. If she had a portrait image, and that was used in game as hanging art inside a frame on a wall, inside a fully textured room, she's claiming they used her portrait, not that they remixed that portrait into the rest of the room. What the hell did you think was happening?

 

Okay, the images repeat, so what? No, they probably weren't made by CAPCOM. No, it doesn't matter. The percantage size of texture data on the disc has zero bearing in the case, and I don't know why you think it does. It wouldn't matter if they only used the single portrait image, she would still be due licensing and damages for their illegal use of her image. You have no logic.

 

Clearly some of us are speculating on things they don't know far more than others. The only question is whether or not CAPCOM licensed her images, then the argument goes into how much does CAPCOM have to pay her if they didn't. That's the entire court case. None of anything you said has any relevance. It doesn't matter that her images could be replaced, it only matters that her images were used, allegedly illegally.

[Kisai]

2 minutes ago, JZStudios said:

None of anything you said has any relevance. It doesn't matter that her images could be replaced, it only matters that her images were used, allegedly illegally.

And yet you still missed the point. She has not proven that. It's speculation. You are arguing like nobody could recreate a texture. Remember what the license is for? 

https://www.amazon.ca/gp/product/0393730077

 

Quote

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. ...

You could use this book to make you own stuff look like the photos. That's the entire point of the book. 

 

Nobody has proven all the images from the book are in the finished game. Period. It's speculation. 

 

[GhostRoadieBL]

I am no copyrights or IP expert, but once you rack up 80 separate textures and don't even change the file names it's pretty clear they just used the files on the CD. There doesn't need to be a clause within the publication for your IP not to be used for commercial purposes. The value of each IP is very difficult to calculate considering Capcom would have to prove or provide the original images they used for the textures weren't her IP and then identify the percentage of their property that was using the textures they can't produce.

Big part of me hopes she wins most of the 80 instances. I've had my own IP taken and sold as prints in the grey market so I know how it feels to find out someone is making money off your work without even tossing you a percentage of the sales. Capcom has the staff and talent to get/make their own textures so there isn't really an excuse for this. She's not even in the credits of the game, I'd go after the employee as well as the company since the fault falls on both even though only one has the cash to really make it worth the ordeal.

[Bombastinator]

7 minutes ago, GhostRoadieBL said:

I am no copyrights or IP expert, but once you rack up 80 separate textures and don't even change the file names it's pretty clear they just used the files on the CD. There doesn't need to be a clause within the publication for your IP not to be used for commercial purposes. The value of each IP is very difficult to calculate considering Capcom would have to prove or provide the original images they used for the textures weren't her IP and then identify the percentage of their property that was using the textures they can't produce.

Big part of me hopes she wins most of the 80 instances. I've had my own IP taken and sold as prints in the grey market so I know how it feels to find out someone is making money off your work without even tossing you a percentage of the sales. Capcom has the staff and talent to get/make their own textures so there isn't really an excuse for this. She's not even in the credits of the game, I'd go after the employee as well as the company since the fault falls on both even though only one has the cash to really make it worth the ordeal.

The question is are there mitigating factors?  I have perhaps less sympathy for her than I might because they were literally textures.  As far from art as one can get while holding a camera. More of a tube of paint than a painting, but that matters not at all.  Capcom could yet come up with a really good reason, like “you were already paid once” or something.  Everything seems premature at this point. 

Edited June 10, 2021 by Bombastinator

[GhostRoadieBL]

5 minutes ago, Bombastinator said:

The question is are there mitigating factors?  I have perhaps less sympathy for her than I might because they were literally textures.  As far from art as one can get while holding a camera. More of a tube of paint than a painting, but that matters not at all.  Capcom could yet come up with a really good reason, like “you were already paid once” or something.  Everything seems premature at this point. 

it depends on how the textures are presented or prepared. There's still the location scouting, lighting, camera setup and post work to clean them up and then some publisher found the books worth it to go through the long and arduous process of publishing the books. There are major differences between a texture book and national geographic just like there are differences between street photography and studio fashion photography.

All of it is still intellectual property and easy enough for that large a company to toss a few grand at the owner of the property for a bulk purchase of licenses. A multi-million dollar game studio can and should (in my opinion) pay at least what they would pay an employee to go out and do the work she did to create the textures. Between equipment and hours it can easily go beyond $100k for 80 unique, professionally shot textures in different locations of the world. assuming you pay the camera operator a fair wage and get them the gear and to all the locations you want. 
 

[wanderingfool2]

5 hours ago, Kisai said:

Nobody has proven all the images from the book are in the finished game. Period. It's speculation. 

Look at the exhibits and say that again.  No jury in their right mind would say Capcom didn't use her photos as those textures.  There are 40+ in game screen shots that correlate to the textures (I stopped counting after 40).  It's civil court, you only have to show that Capcom likely did it, you don't need the beyond reasonable doubt.  At this point, Capcom would have to prove that they didn't copy the photos (like some documentation that they hired an artist to redraw the images)

 

So yes, it's shown that the textures exist in the game and most likely copied the work; it's all about whether or not Capcom has a license or not (and whether the book was vague enough in terms of a license that it was granting)

[Kisai]

7 hours ago, wanderingfool2 said:

Look at the exhibits and say that again.  No jury in their right mind would say Capcom didn't use her photos as those textures.  There are 40+ in game screen shots that correlate to the textures (I stopped counting after 40).  It's civil court, you only have to show that Capcom likely did it, you don't need the beyond reasonable doubt.  At this point, Capcom would have to prove that they didn't copy the photos (like some documentation that they hired an artist to redraw the images)

Yes, someone with no knowledge of how the game works, if shown the photo from the book and a screenshot where the alleged texture appears, would be hard pressed to say those are the same image unless there is something unique about the photo. The photo on the cdrom is NOT the image in the game, no matter how you spin it if looked at from a digital level. That's why you have to prove Capcom actually copied that image, unaltered, at some point into the game, and not merely re-created something that looks like it. The hack does not prove this. She could be claiming more than what is actually in the games, or it could be the other way around. Please keep in mind that for textures to work in 3D there is also things like bump mapping or displacement mapping which are another copy of the texture that is simply telling the render engine how to cast lights or shadows on it. It's not simply "take this tiff file from the cdrom and copy it into the game, and magically it turns into a house"

 

7 hours ago, wanderingfool2 said:

So yes, it's shown that the textures exist in the game and most likely copied the work; it's all about whether or not Capcom has a license or not (and whether the book was vague enough in terms of a license that it was granting)

I have not been arguing they aren't in the game, I'm arguing from the point that "how much" is in the game, and some of y'all in this thread seem to not want to consider the possibility that either

a) Capcom didn't use everything claimed

b) Capcom used more than claimed.

 

[wanderingfool2]

57 minutes ago, Kisai said:

That's why you have to prove Capcom actually copied that image, unaltered, at some point into the game, and not merely re-created something that looks like it

THIS this is why I have and others have said you don't know what you are talking about.  Capcom modifying the image and using it in their game is still copyright infringement.

 

1 hour ago, Kisai said:

would be hard pressed to say those are the same image unless there is something unique about the photo

The shadow parts on texture are the same, the brick layout is the same, the cracks on the brick are the same, the angles are the same...gee I guess Capcom must have just gotten lucky to match such unique pattern on so many images.  Like I said, there are 40+ examples of the texture in game (and if you even bothered to read the exhibit or look at the pictures) you would realize they are them.

 

1 hour ago, Kisai said:

Please keep in mind that for textures to work in 3D there is also things like bump mapping or displacement mapping which are another copy of the texture that is simply telling the render engine how to cast lights or shadows on it. It's not simply "take this tiff file from the cdrom and copy it into the game, and magically it turns into a house"

Bump maps and displacement maps are not required for 3D models to work and don't really relate to this case either.  Most of the items are flat anyways, so aside from modifying it to tile and match the environment in color, it would have been simple enough to import it into their game engine and apply it to the surface.

 

1 hour ago, Kisai said:

I have not been arguing they aren't in the game, I'm arguing from the point that "how much" is in the game, and some of y'all in this thread seem to not want to consider the possibility that either

a) Capcom didn't use everything claimed

b) Capcom used more than claimed.

The problem is is that you keep arguing with points trying to say the images shown in game isn't hers (when they clearly are).  Also at a certain point, it becomes in Capcom's court to prove they didn't use textures in game (if from the hack they already identified over 40+ in game examples)  Again, it's not a criminal case, it's a civil case, she just needs to prove copyright was more likely infringed.  If 40 examples were shown already, and even if the remaining 40 were found in the hack but not currently found in game, it can still be ruled that Capcom likely included that in the work (unless Capcom proves otherwise by providing all game assets shipped with the game)

[JZStudios]

18 hours ago, Kisai said:

And yet you still missed the point. She has not proven that. It's speculation. You are arguing like nobody could recreate a texture. Remember what the license is for? 

https://www.amazon.ca/gp/product/0393730077

 

You could use this book to make you own stuff look like the photos. That's the entire point of the book. 

 

Nobody has proven all the images from the book are in the finished game. Period. It's speculation. 

 

THEY ARE NOT RECREATING THE TEXTURE. You have no point. You have no fucking clue what you're talking about. For someone who claims to be involved in the copyright process of artwork you're completely wrong about how any of this works. Why do you think it's only infringement if either they use her entire library, make the entire game solely with her textures, or only if it was present in the Gamecube version? None of those makes any fucking sense. For the last time, they did not, could not, and have not, recreated, nor attempted to recreate, her images. They used her images.

 

You have zero idea how textures or 3d modeling works, please, for the love of fuck, stop commenting on it.

 

No one said all the images in the book are in game, nor do they need to be. If they used a single photo, they used it illegally. It's a simple fucking concept.

 

If you want to prove me wrong so badly, then please, because I'm a dumb, take ANY image of dirt, go outside, use your phone. Then procedurally generate an image that looks 100% identical to that image without using the original image at all and I will 100% guaranteed shit in my pants and eat it live on stream. If you can't do it, find someone who's really good with procedural texture work so they'll tell you the same fucking thing I'm telling you.

 

Your only slight argument here is whether it's in the final sold product, which, fine, if it's not used in the finished game there's no case. I'm pretty sure that's not the case though.

 

4 hours ago, wanderingfool2 said:

Bump maps and displacement maps are not required for 3D models to work and don't really relate to this case either.  Most of the items are flat anyways, so aside from modifying it to tile and match the environment in color, it would have been simple enough to import it into their game engine and apply it to the surface.

Not to mention the fact that BOTH of those are created FROM THE SOURCE FILE. He(?) has no clue what he's talking about. He keeps saying the same completely untrue statement over and over and I have no idea how to actually get it across that you 100% CAN NOT procedurally generate an identical image to real life footage. Nothing else he's saying makes any fucking sense. It's like watching Boogie Nights when Don Cheadle is trying to sell a stereo because it has 3 or 4 more quads per channel than the other one. But that's technical talk, that doesn't really concern you.

It's fucking nonsense and there's no arguing against it.

 

[Kisai]

4 hours ago, wanderingfool2 said:

THIS this is why I have and others have said you don't know what you are talking about.  Capcom modifying the image and using it in their game is still copyright infringement.

 

No, nobody in this thread is a lawyer, and everyone is just throwing in their armchair 2 cents, you included. Nothing is ever as black and white as what a bunch of commenters on a forum think it is. This is not a game where there is a winning condition.

[Kilrah]

With that said it's pretty clear that thread is going in circles and has run its course.