Album art based on existing works - copyright infringment?

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el_passo
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Album art based on existing works - copyright infringment?

Post by el_passo » Thu Feb 17, 2011 10:42 pm

Hi, I hope someone here can help me.

I work for a video games company and we are working on a game about a record shop. The game will feature albums for sale to virtual customers with album cover art for each. Our plan is to build an online community mainly consisting of students (14-18 years old) and we want them to be able to name and design the albums.

To limit the issues of IPR infringment we are going to create a simple art package that will allow users to arrange, scale and colour vector shapes (that we will create) and use fonts we have rights to use. Users will not be able to copy and paste images from other sources so we can ensure that images are created by the user.

We will tell users not to copy any existing works and we will check all submissions before allowing them in the game. However I fell that it is innevitable that some users will be 'inspired' by images they like and that these images could easily be those we are not aware of. It is therefore possible that an image based on an existing work could make its way into the game.

I have read on various sources, including this forum, about derivative works and fair use and I know it can be a grey area but as I understand it, as long as the image is created from scratch and is not defamatory it becomes a pastiche or parody and therefore does not infringe copyright.

My question is... If an album cover is created from scratch which looks practically identical to an existing album - which in some cases could be quite easily done using simple shapes, for example, Pink Floyd's Dark side of the moon or Coldplay's X&Y - but is not defamatory and does not have the same band name on it would this infringe copyright?

I hope someone can offer me some advice as if we cannot guarantee that no issues will occur we shall have to abandon our plan completly.

Cheers
Alex

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AndyJ
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Post by AndyJ » Fri Feb 18, 2011 8:51 am

Hi Alex,
As the players will be creating their album covers from scratch, albeit possibly based on real covers (which I agree is likely to happen), then you should be OK on copyright grounds. It is unfortunate that the law on creating a pastiche or parody is not particularly well-defined in the UK, but in general, as you say, if you avoid any designs which could be said to be derogatory treatment then a look-alike cover is not actually a 'copy' in the legal sense. My only concern would be if a player could use a scanner to copy a real album cover and somehow introduce that into the game. This would infringe copyright.
From my limited knowledge of gaming and from what you have explained it sounds as if you as the game's owner would be acting as an online service provider, which under the current law gives you some protection from liability for infringing acts done by the gamers, in much the same way that forum hosts or sites like YouTube are not automatically responsible for libellous or infringing acts done by posters until the OSP becomes aware of them. In other words so long as you react promptly to any take-down notices issued by copyright holders, you should be able to claim the so-called 'safe-harbor' protection of the US DMCA and the EU eCommerce Directive Regulations
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007

el_passo
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Post by el_passo » Fri Feb 18, 2011 10:17 am

Thanks very much for your prompt reply Andy.

Users won't be able to scan or otherwise import an existing image into the editor. Their art will definately be made from scratch so we should be covered on that.

Regarding acting as an online service provider, we are using this to protect ourselves during development as people share and discus their art on our forum. Unfortunately I believe we are not covered by this for the actual game release as we are getting the users to create the artwork during the development phase and they will be included as part of the game release. So if any images were a problem I belive we would be liable as we have said we have checked and okayed them.

If they were hosted on a server as you mentioned then all our problems would be answered and, as you said we could easily act on any takedown notices. Without a server we can release an update to the game but cannot guarantee that players will install it and it also costs money - something we want to avoid as much as a lawsuit.
Unfortunately, for reasons i won't go into, the game cannot have any continuous running costs such as a server. A shame, it would make my life so much easier :)


Thank you so much for your help, I'm sure the information you've given me will help settle the nerves of our client.

Cheers

Alex

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