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Comment by stordoff | Hacker News Reader

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.

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> "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.

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 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.

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).

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).

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.

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.

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.

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