Legality of traced/vectorized artwork?

[Justin]

I wanted to initiate some discussion around this topic.

is it legal to trace/vectorize a copyrighted piece of art, and post it publicly?  Examples are Adobe illustrator files of Marquees, sideart, etc.

Could this get the BYOAC folks into trouble?  Perhaps even the indidivual posting this information to the public could get into trouble?

No jokes please, I take this very seriously

[TalkingOctopus]

Of course it is not legal....but only really namco seems to mind.

[Ghoul]

Worst case scenario: a company tells you to stop. They aren't going to sue you, period. They don't have the time, the inclination, or the resources to bother doing more than a cease and desist letter. If you completely refuse they might sue, I dunno.

[Frostillicus]

Also it depends on what you use it for - obviously if you are going to sell t-shirts with your fresh, mint vectorized trace of Dirk the Daring, then yes I'd say that's illegal.

However, there is a huge loophole of 'fair use' and of course the whole parody thing.  You see, a trace technically is not the same image, no matter how well you try to get it right.  You can legally use a part of someone else's artwork in your own, as long as you don't try to sell it and you give him/her credit.   Called fair use.  IMNAL but I watch one on TV  

All a moot point since nobody really cares.  Just don't start selling merchandise with the images and you'll be fine.

[Jakobud]

Why is this illegal?  All of these works have been created from scratch.  There is no copying of digital copyrighted material here.  If you have a picture of pacman and you use some tracing paper to draw a picture of him is that illegal?  We are not selling anything here.  

The only people who I would expect to be aggrivated but this is companies who sell sideart and stuff...but they don't really matter because this is called 'competition.'

We should probably have a disclaimer on Mametrix's Vector Archive just stating that these works are not to be resold.

[bloodyviking77]

Also it depends on what you use it for - obviously if you are going to sell t-shirts with your fresh, mint vectorized trace of Dirk the Daring, then yes I'd say that's illegal.

Well, as everybody says, IANAL, but lets think about this a bit more clearly. Lets be clear that strictly speaking the "use" which you make of an image might be relevant for a whole lot of reasons.

There's trademarks, in which case if you wrongfully use someone's trademarked image (say an image of a Street Fighter marquee, assuming Capcom have registered a trademark for this) then you are infringing their trademark and legal sanctions apply.

Similarly for copyright - if you make a copy (and lets assume for the sake of the argument that tracing an image is in fact making a copy, because this is essentially anallagous to, for example, forging a painting by "re-producing" it, even though it is not an exact digital copy).

Whether your purpose in making such a copy, or using such trademark, is a commercial one (i.e. making money) will go more to the amount of damages that a successful claimant might get, rather than whether what you have done is wrong.

That said, there is, as another post mentioned, the "fair use" loophole. This of course depends on where you are - I understand that in the US there is a stronger "fair use" argument than, for example, in Australia (where I am). Is it really "fair use" to splash a proprietary image on the side of our cabs? Probably a question for those wiser than I.

In the final analysis, I agree that it is unlikely that any company would bother to litigate this, at least not without a "cease and desist" letter first.  That is of course not to say that a company couldn't do so if they chose.

Anyone who might be making and selling cabs using this sort of artwork should probably think about this pretty carefully, and maybe actually speak to a real copyright/intellectual property lawyer.

Just my 2 cents


 

[neuromancer]

Remember a few years ago someone had a website with full sized pac man artwork that you could download for free. They got a letter telling them to stop.

If you did the same thing with Mickey Mouse, you might get a lawsuit. If you did it for Major Havoc, probably no one would care.

It is illegal to copy artwork, regardless of wether you use a photocopier, a camera, or a pencil.

There are exceptions, including editorial, critical review, education, and some others. So I could post a photo of even Mickey Mouse and be perfectly legal, for instance, on the cover of a newspaper when Mickey had been in the Thanksgiving parade.

I think it might be fair use to reproduce graphics to restore your own cabinet. A court might disagree. The odds of anyone, even Disney, suing you for artwork you put on your own cabinet are pretty slim.

Bob

[Justin]

So, are those people who are selling repro sideart, marquees, and t-shirts, engaging in an illegal activity?  Or is it possible they have permission from the copyright holders? (Atari, Namco, etc)

[Howard_Casto]

Why is this illegal?  All of these works have been created from scratch.  There is no copying of digital copyrighted material here.  If you have a picture of pacman and you use some tracing paper to draw a picture of him is that illegal?  We are not selling anything here.  

The only people who I would expect to be aggrivated but this is companies who sell sideart and stuff...but they don't really matter because this is called 'competition.'

We should probably have a disclaimer on Mametrix's Vector Archive just stating that these works are not to be resold.

Jake don't you work in the video game industry?  I find it extremely frightning that you don't know the answer to this question.  

It's called a registered trademark.  What that means is a character, logo, idea, or whatever that defines a company, a companies property or one of their characters likenesses is illegal to make a depiciton of without express writen permission.  And for the record guys there are NO exceptions.  Parodies can only barely resemble the character and must be drawn in such a way that it's a blatent statement of parody.  In other words if it looks almost the same as their character design (how it looks, what it wears, ect) they can still sue you.  Also even if it's deemed a parody, if the parody de-fames or discredits their characters they can sue you and will probably win.  

Now generally they won't sue you because it's just not worth it, but keep this in mind.... children's television workshop sued some kids for painting an image of bert and earnie looking characters in a lewd act.  Disney sued a middleschool for painting a disney scene on their hallway.  

So yes trace all you want, but if it's a character of a popular company keep it to yourself.  As soon as you make it public they'll get you.  

My suggestion.... stay away from nintendo characters, namco characters and midway characters.  

[Jakobud]

HC I guess when it comes to characters and logos I see your point.  But what about something like a control panel?  Or sideart?  If you look on the real cabinet I don't think you are going to find trademark, reservation, or copyright logos on there anywhere...

I dunno.  This is a grey area considering that this artwork is for items that are so old AND we are not selling or mass producing them.  

We should really put a disclaimer on the Mametrix website saying something like:

"These works are all reproductions and are not original works.  Each logo, character and symbol is trademarked and owned by their respective copyright holder(s).  These works are NOT to be used for commercial or resale use and are only for personal use.  The respective artists and/or the Mamtrix Reloaded website will not be held responsible for any violation of this disclaimer."

[F|end]

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[neuromancer]

HC I guess when it comes to characters and logos I see your point.  But what about something like a control panel?  Or sideart?  

Every original expression is covered by copyright. No exceptions. There is fair use of copyright objects, which I mentioned above, but fair use does not impact the underling copyright.

Trademarks are only an issue if you register and protect them.

Bob

[Howard_Casto]

Yes but literally, without exception all pieces of artwork related to a video game are registered, the only exceptions you might find to this are games from the early 70's.  

[neuromancer]

I really don't see where the trademark issue comes into play.

As long as you're not using the mark to conduct business, that is.

For most classic games, even if there were trademarks on the items (the Warrior in Gauntlet, for instance) no one has conducted business using those marks for so long they will have lost their marks.

They'll all be protected by copyright for longer than I'll be around though, and the very act of making copies is an infringement of copyright. The act of copying a trademark is not, or else you couldn't take a photograph of a car dealership (due to the trademark in the sign, and on each car).

Now if you put the Capcom trademarks on a Data East machine and tried to sell it you could get into serious trouble. But if you put the Capcom logo on a Capcom game, I don't see how there's a trademark issue.

Bob

[Jakobud]

If a company could sue us for using any artwork for our own personal cabinets (no commerical use or resale involved) then they should be able to sue us for using a trademarked image as my desktop wallpaper in Windows....

[jcoleman]

The trademark issue is a non-issue.  The only reason a company will sue you for trademark infringement is misrepresentation or dilution of trademark.

As an example...if you are using Pac-Man to sell your product, you are misrepresenting yourself as affiliated with (or actually being) the guys who made Pac-Man (yes I know it's Namco, I'm simplifying).  If you start selling Pac-Man replica cabinets with the same artwork on the side (or even the name, I would assume) you can expect to be sued for trademark infringement (as well as copyright, most likely).  (This parenthetical reference is just for fun)  

However if you are simply adding your own depiction of Pac-Man to the side of your cabinet, Namco is not going to care.    I'd be more worried about the fact that you the site is called "Mametrix Reloaded," or that it uses pictures from the marketing materials for those films...

I'd say that the game production houses and copyright/trademark owners would be more concerned that you have their ROMs on your hard drive.  Odd that you don't see many questions about that around here...  

John

BTW, a parody is protected from trademark infringement no matter the case; whether it "defames or discredits" is immaterial.  That is the point of a parody.  Jerry Falwell lives less than 5 miles from me, so trust me, I've heard plenty about that.  

[jcoleman]

I should point out that the courts have found that a parody of a trademark must use the trademark to parody itself...for example, the guys at Penny Arcade used the Strawberry Shortcake characters to make fun of American McGee's "Alice" and upcoming "Wizard of Oz."  That's a no-no...had they made fun of Strawberry Shortcake by itself, no problem.

John