Using patent illustrations as game art - copyright issues?

February 15, 2013 5:52 AM

I'm considering making a game that uses USPTO patent illustrations (from Context-Free Patent Art) as graphics. I've read the answers to Patents.Stackexchange: Are text and images in the patent copyrighted?, which suggests that if a graphic is not explicitly copyrighted, it can be freely reproduced. However, I have some concerns:

• When looking at the original patent, is the lack of a copyright notice in the patent sufficient to make sure the images in it are not copyrighted? This would seem to violate the Berne convention.
• The game would be accessible across the world, not just in the US. How does this complicate things? Is it possible/likely that a challenge could be brought against the game in a non-US court?
• I assume that I have to check that the images aren't trademarked.

What I'm looking for is a test I can apply to patent illustrations to see if they are reasonably safe for me to use in a game. The game design doesn't rely on any specific images being available, as long as some are safe to use.

(I know YANML and your answers don't constitute legal advice. Bonus question: Is it possible to get legal advice on this question at a cost that's less than quadruple digits?)

posted by Zarkonnen to law & government (4 answers total)

Well you're not going to like the answer, but the questions you pose are ones that an attorney is equipped to answer. Call some up, ask them what their fees are, etc. make sure you're talking to an attorney who practices in intellectual property.

As for cost--it can vary a lot. But quadruple digits doesn't sound unreasonable for an attorney to fully answer your questions.
posted by dfriedman at 6:15 AM on February 15

Wikimedia Foundation, the organization behind Wikipedia and it's associated image project (Wikimedia Commons) takes the position that the contents of United States patents published before March 1, 1989 that do not contain a specific copyright reservation in the body of the specification are in the public domain. For a few more details you can read the public domain copyright disclaimer they attach to such images.

The U.S. patent office has a specific statement about the copyright status of the text and drawings:

Subject to limited exceptions reflected in 37 CFR 1.71(d) & (e) and 1.84(s), the text and drawings of a patent are typically not subject to copyright restrictions. The inventors' right to exclude others from making, using, offering for sale, or selling the invention throughout the United States or importing the invention into the United States for a limited time is not compromised by the publication of the description of the invention. In other words, the fact that a patent's description may have been published without copyright restrictions does not give you permission to manufacture or use the invention without permission from the inventor during the active life of the patent.

However, it wouldn't be a bad idea to seek the advice of a lawyer, perhaps asking him or her to draft you an opinion letter. If you're a student and this game is a student project you may be able to ask your institution's legal counsel for help.
posted by RichardP at 6:40 AM on February 15

I am not sure that the statement that RichardP quotes means what it thinks it means:

1.71(d)&(e), and 1.84(s) talk about the requirements that patent applicants need to adhere if they want to put copyright notice into the drawing (basically, it needs to be reasonably small and there needs to be a clause allowing the USPTO to reproduce the drawing as necessary. The USPTO statement linked even acknowledges that:

CAUTION: There are instances where trademarks may be embedded in patents as part of the drawing, particularly for design patents.There are also instances where a portion of the text or drawings of a patent may be under copyright . You should consult an attorney regarding these potential trademark and copyright issues. The USPTO will not assist in determining if a potential trademark issue or copyright issue exists for a particular patent.


That being said, Zarkonnen, the US didn't really join the Berne Convention until 1989, and it was the 1989 Berne Convention Implementation act that made the formalities of copyright notice and registration optional. I'm pretty sure that this means that if you are using art from patents published before 1989, that _don't_ have copyright notices in them, you are good to go. (assuming there aren't any state law copyright claims that could catch you up).

Even better would be if you used images from patents published before 1923. The longest possible copyright term of any work published before 1923 has expired, so all of those works are in the public domain.

Of course, IANAL(y) and copyright law is really confusing, and it's possible that I am forgetting some stupid corner case that was buried deep in Title 17 and was enacted for 2 hours before being repealed but still has effect if the work was fixated under the light of a blue moon when the 7th sun was rising. An actual copyright attorney should be able to answer this question for you (especially if you could pull 2 or 3 examples of works that you want to use) in an hour, so even at $400 an hour it wouldn't be _that_ expensive.
posted by sparklemotion at 7:55 AM on February 15

Is there anything like Volunteer Lawyers for the Arts where you are? Or heck, maybe you can call their hotline even if you're not where they are ...
posted by jhc at 2:28 PM on February 15 [1 favorite]