Copyright Infringement in an AAA Video Game?
August 23, 2016 11:16 PM   Subscribe

In 2005, one of the world's largest video game developers/publishers published an AAA computer/video game which appears to contain photographs I took and displayed on one of my websites which were copied directly and obviously into the game as textures. I just discovered the situation this year. Would it be likely that a lawyer could do anything about this in terms of securing payment/recognition/??? for this use of my copyrighted photographs? If so, what kind of lawyer or law firm should I be looking for and what are the typical hiring arrangements (e.g. am I likely to have to pay up front, or is this kind of thing typically taken on contingency)? Looking for general information here, not legal advice.

A few details:

I live in and took/published the photos in question in the United States. I have not registered them with the U.S. Copyright Office. I personally own and operate the website (on my own server/etc) on which I display the photos, and nothing on the website grants the viewers any license or additional rights to the photos.

I have no idea how photographs like this are normally valued for commercial use nor what the commercial value of these specific photos might be. Apparently the game in question has had over 5 million copies sold.

I have shown the video game screenshots and the photos in question side-by-side to several people, all of whom have said "yeah, they copied that texture directly from that photo".
posted by anonymous to Law & Government (13 answers total) 3 users marked this as a favorite
In 2005, one of the world's largest video game developers...

The statute of limitations has long since run out. For civil actions in the US, it's three years after the cause of action.
Sorry, but it seems you have no case.
posted by His thoughts were red thoughts at 11:35 PM on August 23, 2016

I have not registered them with the U.S. Copyright Office.

Just so you know, you don't need to do this in order to have the copyright - copyright vests in you automatically when you create the work (for example, when you take the photo).
posted by His thoughts were red thoughts at 11:39 PM on August 23, 2016 [2 favorites]

You should talk to a plaintiff's IP lawyer in your jurisdiction. You may well be able to find a lawyer who would take this on a contingency and not require payment up front. Call your local city or state bar association for referrals, or reach out to your local pro bono organization for artists (listings here).

You said in your question that you aren't looking for legal advice. But just for the benefit of others who may see this thread, I am not convinced that the statute of limitations has expired. Although there may be a three year statute of limitations, it looks like the discovery rule may apply, meaning that the three year clock doesn't start ticking until you discover the infringement. But don't take my word for it, go see a real live lawyer in your jurisdiction who specializes in this line of work! You may be pleasantly surprised.
posted by slmorri at 12:02 AM on August 24, 2016 [7 favorites]

The attorney you need may be called a copyright attorney, an IP attorney, or even an entertainment lawyer (because this is an issue litigated heavily in entertainment, and is in fact why/how my IP lawyer dad became an... entertainment lawyer.)
posted by DarlingBri at 1:29 AM on August 24, 2016 [3 favorites]

IP lawyer

OP may not know that IP means "intellectual property", if they are asking what kind of lawyer does this.
posted by thelonius at 3:48 AM on August 24, 2016 [1 favorite]

This is a complex question and often leads to complex, expensive litigation where even an open and shut case is practically impossible to bring if the offender is a large corporation and the ripped-off party an individual. The amount of damages you may get are often tiny compared to the amount you'll be out of pocket, even if you win.

Your first decision is what you want to achieve. Do you want acknowledgement of the use of your work, do you want to be recompensed, do you want to shame the company? Decide what you want first, and be honest with yourself about how badly you want it.

You then have to decide how you want it to happen. You have three basic courses of action: one, do nothing. I usually recommend this, because usually any possible reward is vastly smaller than the amount of effort, risk and sheer pain you'll have to go through. Chalk it up to the ways of the world, the tyranny of power, and get on with life. A sense of burning injustice is a great motivator, if it's on behalf of someone else. It's rarely a good idea for oneself.

The second is to talk to a lawyer who specialises in these matters. I don't know how this works in the US, but in the UK the initial consultation is normally free and you'll get a good idea of what outcomes are likely if you decide to litigate, if that's even a remotely sensible idea. Even if it's a couple of hundred dollars, the investment is hugely worthwhile no matter what you do next.

The third is to make a public fuss. If your chat with a lawyer ends up with 'yes, they've ripped you off and no, there's nothing you can do about it because they can outspend you in court a million to one with lawyers who spend their entire careers eating people a thousand times bigger than you for breakfast', then you can take the fight to The Intarwebs!

Prepare your case, do side-by-side screenshots with unarguable evidence of dates and ownership, write up a clear and concise text. Send it to the offending company, saying exactly why you think they ripped you off and what reasonable acknowledgement and compensation you want from them, and build up some correspondence with them where they'll undoubtedly ignore you, or tell you to go away, or whatever - start building a file of their intransigence. Then write a blog or tumbl a Tumblr or whatever, and draw attention to it on Facebook, Twitter or wherever you think best. Tweet a few gaming journalists or others who write about IP infringement and digital rights. Keep it up.

If you can get that sense of burning injustice going in the hearts of others for your case, you may get the outcome you want. But be aware that you'll be poking your head up into the eternal raging storm of Trollandia, so you'll get a lot of flak from haters (videogames, man. I just don't know), so you'd better be OK with that too.

So. Decide what you want, decide how much you want it, get professional advice, be aware of what it will cost you to try, keep a clear head, be honest with yourself and - good luck.
posted by Devonian at 4:38 AM on August 24, 2016 [15 favorites]

The three year statute of limitations for copyright applies to each act of infringement (that is, each act of reproduction or distribution) separately. What that means that you can sue any time, but the damages you recover will be limited to infringement that has occurred in the past three years. There may also be other legal avenues to extend that period depending on the specific case. And as Devonian said, it's a complicated area of law. Definitely consult a lawyer.
posted by lmindful at 5:30 AM on August 24, 2016 [3 favorites]

Just so you know, you don't need to do this in order to have the copyright

This is correct, however, copyrights must be registered within three months of first publication (your website counts) or before the infringement occurs in order to be eligible for statutory damages and attorney fees. Otherwise you're limited to actual damages. I can't say for sure what a judge would rule actual damages from having a photo lifted and used as a background texture are, but I'd guess it would be measured in hundreds of dollars, not enough to pay for bringing a lawsuit.

I suspect that you're unlikely to get any response from the game company. It's probable that the person that did it no longer works there and any admission of guilt from them could be used against them in court.
posted by Candleman at 5:36 AM on August 24, 2016 [1 favorite]

IAAIPL, IANYIPL (I am an IP lawyer, I am not your IP lawyer).

Copyright law is complex, and people are saying things here that may or may not be true based on your specific situation (enough that I'm not going to take the time to sort through what I see as incorrect interpretations of current US copyright law).

Your state's bar association should allow you to search for attorneys in good standing who specialize in IP, copyright, or entertainment law. You can also ask any lawyer (or law adjacent) friends you might have for recommendations. Do not rely on If you are in Minnesota, D.C., or New York, memail me.

You'll want to make a list of prospects and start reaching out -- Devonian's list of things to think about before starting is good. It may be difficult to find a lawyer who is willing to take this on as a contingent fee case. You might have better luck with younger lawyers/smaller firms. Regardless, any lawyer you talk to should explain what their available fee arrangements are BEFORE anything happens that puts you on the hook for any money. Sadly, you'll probably have a hard time finding out stuff like this from websites, as law firms don't like publicizing fee arrangements, and things like this can be very case dependent. Plan on making a bunch of phone calls.

It sucks that your rights have been violated in this way.
posted by sparklemotion at 7:55 AM on August 24, 2016 [7 favorites]

What sparklemotion said. Like many torts, copyright infringement has a "discovery rule" whereby the statute of limitations for the cause of action can run from the time that the infringement is or could reasonably have been discovered, not from the time the infringement occurs. However, the application of these rules is quite complex and fact-specific.
posted by praemunire at 9:01 AM on August 24, 2016

I have no idea how photographs like this are normally valued for commercial use nor what the commercial value of these specific photos might be.

Go to some stock photography sites, look at their prices for an exclusive license for commercial purposes for an image.

(You might also want to do an image search to see if you photo has ended up on any websites other than yours, and if so, whether those sites sell photos, because another possibility is that the production was doing things correctly and it was an image seller that ripped off your work.)
posted by anonymisc at 11:14 AM on August 24, 2016 [2 favorites]

Which might actually be a boon, since they may have continued to sell the images.
posted by rhizome at 2:08 PM on August 24, 2016 [1 favorite]

Hi OP. Just wanted to chime back in to say, sorry - my answer above is obviously incomplete and misleading. It was a bad answer. Mea culpa. To avoid confusion, you should ignore it.
posted by His thoughts were red thoughts at 4:03 PM on August 24, 2016 [1 favorite]

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