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Comment by ajross | Hacker News Reader

From the blurb at the Amazon sales page, presumably copied from the text or its marketing material: https://www.amazon.com/Surfaces-Research-Artists-Architects-...

    Surfaces: Visual Research for Artists, Architects, and Designers

    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.

I have a very, very hard time imagining that this is going to get past a fair use argument. Capcom is doing with these images exactly what the author intended. If the author wants to be able to sue for royalties after the fact, then that blurb can only be read as a deliberate booby trap.

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Blurbs are not legal documents, and every commercial artist is fully aware of that and has been for a long time.

The collection comes with a CD-ROM of the images — but Juracek said she requires people to license images from her for commercial use by contacting her directly. Juracek said in the lawsuit that Capcom never contacted her for a license.

I might buy this argument if it she was suing the creators of some breakout indie game, but Capcom is a mature corporation with a legal budget and staff. If you rip off one of their products in a commercial context they will not hesitate to redirect your attention from the blurb on the back of the videogame case to the legal small print that says what you may or may not do with it.

Texture CDs were a really common thing back in the day (https://www.youtube.com/watch?v=bsCN0Yx2Vbs) so I don't think the developers were acting in malice when they allegedly stole these graphics.

I suppose it's well within the author's legal rights to sue but it does seem a bit scummy on the author's part to have that blurb but then pull a bait and switch.

I disagree completely, it seems very normal to me that people are encouraged/invited to use something for individual artistic/professional efforts but corporate entities are expected to buy a license.

I strongly suspect most of the complaints here are from people who enjoyed playing Resident Evil or some other Capcom product back in the day and are emotionally identifying with the cool game that they were quite invested in. I also enjoyed RE4, but if it helps just think of Capcom as playing the role of the Umbrella Corporation in this instance.

Huh? Capcom's use has exactly nothing to do with fair use: "the doctrine that brief excerpts of copyright material may, under certain circumstances, be quoted verbatim for purposes such as criticism, news reporting, teaching, and research, without the need for permission from or payment to the copyright holder".

I think what you mean is that Capcom may have believed they had the right to use the images.

As always, the simplest explanation is the most likely: Artist + Deadline = Nobody's gonna know anyway because I like flipped and transformed them.

An incomplete Amazon blurb won't save you from the licensing requirement that exists in the text itself.

From the "Look Inside" preview, I'm not convinced the book makes it as clear as it could. The "About the CD-ROM" section includes "the CD images can be used be artists and designers in developing concepts, preparing presentations for clients, and communicating visual information with others". It seems the images can be used directly in some contexts, and "communicating visual information with others" feels very vague to me.

At the very least, a note in this section stating that a licence is required for some uses would be a useful clarification.

One expects Capcom's legal department to be more diligent than folks here making armchair judements after skimming Amazon. You think the implied license is murky yourself -- would you jump to the conclusion that the art is free for all purposes? Or would you do your due diligence before using these resources?

If they cleared this, that's a horrible decision. I doubt they did. Its pretty common for employees to do their own sort of back of the envelope analysis or to pass off copied work as their own (especially if they modified it a bit).

If the legal department cleared it, they've made a poor decision, but I can see this slipping through the cracks - for instance, a legal layperson making an assumption based on the "can be used" text, or the images getting used internally (as the licence seems to allow) without properly keeping track of the sources and the usage restrictions.

I don't disagree that Capcom may have needed a commercial use licence, and that they should have done their due diligence, but I still think the book could have been clearer on this matter.

Or just as likely, an employee in their art department, under typical never-ending gamedev crunch time. just "doing whatever it take to get it done" to get their manager off their back...

Yup, then this lawsuit is just a cost of doing business. Judge won't give a shit that it was an employee on crunch-time.

Paragraphs 16 & 17 in the court filing note that the book and CD stated that a licence was required for commercial use.

They do, which is why I'd love to see a full copy of the book/CD - the complaint doesn't quote the invitation to contact for licences, and in various online previews I can't see any express wording to that effect (though of course it's implicit if you don't have a licence or other legal reason to use). The "About the CD-ROM" section in the book only says "Original images can be obtained from the author. Write to [PO Box]", which I don't see as being the same as "invit[ing] interested persons to contact Juracek if licenses were desired". I'd be curious if more explicit wording is included elsewhere - it wouldn't necessarily change the outcome, but it'd add strength to the case IMO.

I also find the logic at paragraph 17 somewhat strange:

> 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.

What if you don't need high-resolution images for your particular use? Noting that they had to contact the author to obtain higher resolution images seems irrelevant when determining if they had a licence to use the images present on the CD (unless it's alleged they used the higher resolution images and must have obtained them from another source, which I don't believe is the case).

Just because you only need low res versions, doesn't mean you're exempt from copyright. Juracek without doubt owns copyright on those images. Capcom are going to have to convince a judge they had permission to use the images from the copyright holder. It seems unlikely there was an explicit rights grant on the CD for use in a commercial game, Capcom are going to be trying to lean heavily (too heavily, it seems to me) on that vague wording in the marketing copy to assert they have rights to use them. Juracek could have made their limited rights grant more explicit, but copyright generally works on an "if you do not have explicit permission to use a work in a particular way, you have only very limited rights to make a copy of it" basis.

> Just because you only need low res versions, doesn't mean you're exempt from copyright.

That's not what I was trying to say. What I meant that the claimant's argument is simply "You did not have a licence to use the images on the CD in that way". Presenting the argument as "the parties were required to contact Juracek to obtain high resolution digital files [and they did not do so]" _seems_ to add a particular significance to the high resolution images, when it's, as you say, irrelevant (what matters is whether they obtained a licence, not the high resolution images). Unless I'm missing something, you could replace paragraph 17 with:

> 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. Anyone seeking a license for the photographs from the book or CD-ROM were required to contact Plaintiff to obtain a commercial use license as all rights were reserved as set forth in the copyright notice.

and have the same effect. It just seemed like a needlessly complicated way to make the same argument.

There are some specific contemplated and limited uses in the blurb/text. It's not clear to me how those play against the plain fact of the copyright, but I doubt that claiming an author needs to repeatedly claim copyright for it be valid is going to get far.

> "the CD images can be used be artists and designers in developing concepts, preparing presentations for clients, and communicating visual information with others"

This effectively is a license. It's implied that the copyright holder has not given you further rights than this.

As you say, Capcom may well claim that they are communicating visual information with others.

The defense might press the source of the textures As well. It’s the old if you take a photo of someone’s graffiti, is it your art (the photo) or is the art the graffiti artists still.

Is my brick wall or the marble floor, mansion door or cracked glass the art or is the photo of the item the art...can any photographer take a picture then turn around and sell it?

I guess you always ask for a lot in these lawsuits but the 12million seems high based on the price textured get licenced for today. Not bad for a book from 1996

'Pictures of art' does not apply here. The marble texure is a natural, and unless special, brick walls or cracked glass are not artistic expressions. The mansion door could be art. However, at worst, the texture is a minimal part of an extremely artsy door and still fair use due to the transformative nature.

OTOH, every picture was made with the express intent to make artistic textures. Yes, it is copyrighted by the photographer and can be sold.

this is a "you can use it in private, but not release it to the world" license. these things are common and have existed for a long time. one lucrative market for this type of license is Hollywood storyboards.

My understanding is that there's also language in the book that basically says "for reference, not for commercial reproduction use"

Also, google books: https://www.google.com/books/edition/Surfaces/Q1ZWyWDcq1YC?h...

The first 40-some pages are on Google Books' preview, although pages 6-10 weren't available to me.

I own quite a few of the books with 'old' images in - ie ones that have been collated because they're in the public domain now, and everything is free to use.

I wonder if there was a particular licence in this book? Like if I buy an image from a stock site, generally it's "fine for the web as part of a 'something'" but I need an extended licence to sell it on t-shirts or book covers. Maybe something like that? But I agree that feels like a stretch...

the pictures in the books aren't public domain and, according to the article "Juracek [the photograph] said she requires people to license images from her for commercial use by contacting her directly"

Well, what she says now and what is shown to the customer at purchase/before use is what matters. That's why repos have a LICENSE file - you need proof that someone improperly used the work without adhering to the license or were reckless enough to not read the license before reusing the work.

Isn't it largely the other way around, the accused would need to show that they have some suitable license or successfully argue that the have fair-use grounds (the latter sounds unlikely in this case to me)?

Maybe it's a distinction without a difference in civil matters, since there's not really a presumption of guilt or innocence AFAIK in civil.

No, you need explicit permission to use copyrighted works outside of fair use exceptions. Therefore it’s up to the customer to prove they got permission from the correct source.

A license is a permission to use something in a particular way. If there is no license available for a thing, then you have no permission to use that thing.

> deliberate booby trap

I would say that optional Copyright registration and spray and pray is the only viable monetization path for visual artists. Register and make your art available for others without a ton of watermarks or anything. Find them with reverse image search later.

It is very underused because the artists are largely segregated from the legal system, due to lack of exposure alongside real or imagined costs.

But it is ripe for use.

> I would say that optional Copyright registration and spray and pray is the only viable monetization path for visual artists.

Why would you say that?

Just talk to artists who are actually monetizing their work and ask how many of them are using this strategy.

Then ask them what they do instead.

Art is my day job and Patreon is working pretty well for me. No lawyers required.

This extortion strategy worked pretty well for Getty a few years back (not sure if they've since changed the practice). Probably a bit easier for a big firm with a bevy of lawyers than a lone artist, as you note.

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