19 ms·

Artist says Capcom stole her photos for Resident Evil, Devil May Cry

139 points by polm23 5y ago

server_bot 5y ago
While this seems like a convincing case, at what point is it morally acceptable to produce new art derived from existing work? Would it have been fine if Capcom had re-created near identical patterns without use of the book's original digital files? It's a reference book after all. Not saying Capcom should profit without crediting the original artist. But visual art remixing textures feels more grey area to me than copy/pasting code or someone's writing.
- neoCrimeLabs 5y ago
  I think the answer to your questions and thoughts can be responded to with "It depends." Truly, these cases and their outcomes can not be predicted, no matter how clear cut they appear to be. Here's a great summary of some of the best appropriation cases involving art, and their outcomes: https://news.fordham.edu/arts-and-culture/top-10-cases-on-appropriation-art-and-the-law-2/ https://news.fordham.edu/arts-and-culture/top-10-cases-on-ap...
- indigochill 5y ago
  > But visual art remixing textures feels more grey area to me than copy/pasting code or someone's writing. Artists use reference material all the time, and as long as the new work is the product of the new artist, it's all good. But directly copying art and then modifying it is still copying copyrighted material. My understanding is in the music remix world, if you want to feature a song in your remix, you should get a license. Similarly, my brother makes AMV videos and as I understand from him, the music rights-holders (not the anime rights-holders, interestingly...) will then claim all the monetization on those videos.
  - judge2020 5y ago
    > But directly copying art and then modifying it is still copying copyrighted material. As my uncle comment suggests ( https://news.ycombinator.com/item?id=27426639 https://news.ycombinator.com/item?id=27426639 ) it's not clear cut. Just because you hit ctrl-c then ctrl-v on an asset doesn't mean what you're doing is automatically copyright infringement, it might be fair use assuming you changed something to a point where it's a derivative work based on the original work. > the music rights-holders (not the anime rights-holders, interestingly...) will then claim all the monetization on those videos. This is a Content ID Claim, and it's a system YouTube themselves made up so that companies can automatically start garnishing monetization earnings on videos that use their work in any capacity without having to do DMCAs themselves. In no way is this tied to copyright or fair use.
    - nsajko 5y ago
      > it might be fair use assuming you changed something to a point where it's a derivative work Pretty sure copyright doesn't at all work like that. I.e. copyright can be (and usually is, AFAIK) preserved across derivation.
      - SR2Z 5y ago
        The OP probably meant "transformative" and not "derivative."
    - ncmncm 5y ago
      Derived works also require a license.
    - bigiain 5y ago
      > In no way is this tied to copyright or fair use. Contenting ID it _totally_ about copyright. The only reason Google built it is to reduce the exposure they have to claims of copyright infringement, by easily (way too easily it turns out) allowing rights holders (or anyone claiming to be one) to post-fact claim earnings from infringing use of copyright material. Just because Google demonetises your video and sends a share of ad revenue to Sony/Warner/whoever, that doesn't mean you _didn't_ infringe copyright.
- fvdessen 5y ago
  As an artist I frankly wonder what's the point of these texture books if you can't re-use the textures in your own works. It's like an audio sample pack where you can't use the samples, or an algorithmic book where you can't reuse the algorithms ...
  - moate 5y ago
    What kind of artist are you? As a painter, I can tell you there's use in having textures to reference while you draw things yourself. It's more like buying an image off getty to get the watermark off but not paying the extra 20 dollars for commercial use.
  - philjohn 5y ago
    Different audio sample packs have different licensing terms - some confer full rights to use them in an audio production, some only in non-commercial productions with commercial requiring a license to be purchased. Similarly, in this case, it's a reference book - and there just so happens to be verbiage that says "for commercial use of any of these, contact the author".
  - prpl 5y ago
    You're familiar with the Numerical Recipes books?
  - aeturnum 5y ago
    You can re-use the textures in your own works. You can even create a new original work, using the textures as a reference, and pay nothing. The only thing you can't do is use the reference textures directly in a new work without securing an additional license. I'm pretty sure that, by volume, most art is not sold in a commercial environment and its creators could use the book without concern.
- teachingassist 5y ago
  > Would it have been fine if Capcom had re-created near identical patterns without use of the book's original digital files? In copyright law this is usually fine, yes.
- bigiain 5y ago
  > Not saying Capcom should profit without crediting the original artist. Capcom "crediting the original artist" would have made this even worse for them, it'd then be a slam dunk admission of copyright infringement. You cannot use a copyright work for free then "credit the original artist" to shirk your legal responsibility to negotiate a license to use the work. There is no "grey area" here. (Arguably there _should_ be, and the hardline copyright stance the actual law takes is mostly Mickey Mouse's lawyers and lobbyists fault, but that's the world we live in...)
ajross 5y ago
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-Designers/dp/0393730077 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.
- xbar 5y ago
  An incomplete Amazon blurb won't save you from the licensing requirement that exists in the text itself.
  - stordoff 5y ago
    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.
    - klyrs 5y ago
      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?
aaron695 5y ago
There is no clear answer if you are looking outside of what a judge will decide. The book says - "the CD images can be used by artists and designers in developing concepts, preparing presentations for clients, and communicating visual information to others. Although the images are primarily intended for on-screen display, they can also be printed on either a black and white or color printer. It's clear, only "preparing presentations" not using in presentations. Equally the book buyers comments all think you can use the photos when making things. So clearly the CD gets sold for wink wink reasons and she would have to know that, but we also all know Capcom have had multiple people using the photos without everyone having a copy and they also know they are not a person just using the photos in a one off illegal presentation. Legally it will be complex, we will see. It is interesting she allowed formatting shifting, you could print the photos. Was that legal when the book came out or was she adding additional rights and how does that effect the default copyright.
- bigiain 5y ago
  I suspect Capcom's lawyers are frantically preparing arguments about precisely what they want "communicating visual information to others" to mean...
  - aaron695 5y ago
    I actually felt some sort of weird stability to see that in 1996 people also just put meaningless words together and pretended they had meaning. But it was strange to leave that open, everywhere else it's a tight language to not allow the extended use, while not explicitly explaining it so it didn't stop book sales.
  - rossjudson 5y ago
    I really, really doubt it. I bet Capcom's lawyers are frantically preparing a settlement proposal for substantially less than was requested, and that they are prepared to write a check for that sum today, instead of going to court. Juracek's lawyers know this, and that's why they're saying nothing. Saying nothing maximizes their ability to agree to whatever flowery no-fault language Capcom would like attached to the settlement, because those words cost nothing.
cwkoss 5y ago
Hypothetical Question: If someone trained a neural network to create wood textures, and 1 of N training images came from this book, would wood textures generated by this NN infringe on the author's copyright? To what extent does the size of N change the answer? (I'm sure 1 is no good, but is 10 enough? 100? 1000?)
- tshaddox 5y ago
  I imagine this would be treated by the legal system the same way any derivative work produced by a human would be.
- curtisf 5y ago
  (not a lawyer) My understanding of the situation in US copyright law is that the synthesized images would clearly be derivative works, and thus copyright holders have rights to the (portion of the) output which is derivative. However, such a use might be considered fair use. (Fair use is not an exception to copyright itself; it just limits what the copyright holder can stop you from doing) There is no perfect checklist of what constitutes fair use, but there are established criteria that weight in favor or against fair use. Substantiality may weigh in favor of fair use since only some of the input images appears in the output (and less so if mixing many together) Affect on the original work may weigh against fair use -- if you can use the texture synthesizer instead of buying the original texture reference book. I think there's limited precedent that machine learning models can claim fair use of their input text, but I'm guessing the specific case of reference textures => texture models may be hard to argue as fair use (unless you have rights to at least most of the inputs)
  - ttt0 5y ago
    > the synthesized images would clearly be derivative works, and thus copyright holders have rights to the (portion of the) output which is derivative. Good luck proving it. So in practice it's basically legal.
    - cwkoss 5y ago
      If they find their image in the training dataset via discovery, that would prove it. I think the trickier part is figuring out that your image was used in the dataset or convincing the judge that you have standing to compel that discovery search. If you have a bunch of get requests from an AI company's corp IP that could do it.
whoknowswhat11 5y ago
I'm a lay person, but selling this book highlights: "CD-ROM included: easy-to-use screen resolution TIFF files of every image" If I'm buying a $200+ book with an "easy to use" CD of the images - they'd better be highlighting very very clearly that I can't use these in projects.
- nsajko 5y ago
  They're selling art, not a copyright law primer for lay people.
  - whoknowswhat11 5y ago
    They are selling a book of surface textures to scenic artists including an easy to use CD of the images in digital format. Are you serious that this is like buying art? This really then feels like a TOTAL scam.
    - nsajko 5y ago
      It's not art meant for viewing pleasure, as far as I understand the intended use is rather as a reference work. I.e., the artist who uses the book should base their art on the photographs in the book (but of course without copying, unless they get a license to do so).
      - whoknowswhat11 5y ago
        Then this is SUCH a scam. I should base my art on the photos without copying. If it's just for me to look at and not copy, why the CD? I can look at the printed picture to base my art on that. Here is the amazon blurb "ready to be used in your designs, presentations, or comps, as backgrounds or for general visual information" What absolute garbage.
        lukebitts 5y ago
        A good library of references is very much worth the price, even these days where you can find anything on the internet.
ncmncm 5y ago
Poor Capcom! If only there were somebody, anybody, they could have asked about what might happen if they ignored copyright terms and also the photographer's request that they pay up. If only they had ever heard of possible trouble from lifting others' work. After all, they have always been happy to let anybody at all sell jailbroken copies of their own games, online!
helios_invictus 5y ago
When this book was published in 1996 this sort of model for reference/inspiration was very common in the graphic design world. I had access to a library of books like this. Part of my job was to either work with an art buyer to get the art into production (having all ready done the production from the CD-ROM) or create a suitable replacement if we couldn't get a good price/were feeling cheap.
- xmprt 5y ago
  Piggybacking on this, here's a relevant video about the history of texture CDs and where a lot of old game textures come from. https://www.youtube.com/watch?v=bsCN0Yx2Vbs https://www.youtube.com/watch?v=bsCN0Yx2Vbs
overgard 5y ago
I figure this has to happen all over the place. One might hope texture artists are super careful about copyright but realistically the way these things are built someone's gonna use a photo in a photoshop layer somewhere they got off google image search. Capcom just got caught.
danybittel 5y ago
As a visual artist and coder, it is somewhat sad to see how this HN crowd all seem to question the license or the artist. If it were a coder that had published code in a book, and Capcom clearly used it in a commercial game, this discussion would look a lot different.
- acomjean 5y ago
  It’s looks pretty clear the photos were taken. I think if you bought a coding book and it had functions, you’d likely be comfortable using that code as part of a bigger projects, with some modifications to suit your needs. As coders we don’t want to get trapped into a very high cost infringement event when it appears we’ve paid for something but the terms aren’t clear. $200 for a book/cd of textures seems weird that you wouldn’t get to use them. Can you imagine buying a font for “inspiration” but to use it requires another license. This also gets into a interesting grey area. They’re licensing photos of a cracked glass or a mansion door and all sorts of textures, but they didn’t create the door or the glass. some of the sculptural elements weren’t created by the photographer. As a photographer myself you can see where sometimes things get a little fuzzy. In the end the lawyers will work something out.

139 points by polm23 5y ago

While this seems like a convincing case, at what point is it morally acceptable to produce new art derived from existing work? Would it have been fine if Capcom had re-created near identical patterns without use of the book's original digital files? It's a reference book after all. Not saying Capcom should profit without crediting the original artist. But visual art remixing textures feels more grey area to me than copy/pasting code or someone's writing.

neoCrimeLabs 5y ago
I think the answer to your questions and thoughts can be responded to with "It depends." Truly, these cases and their outcomes can not be predicted, no matter how clear cut they appear to be. Here's a great summary of some of the best appropriation cases involving art, and their outcomes: https://news.fordham.edu/arts-and-culture/top-10-cases-on-appropriation-art-and-the-law-2/ https://news.fordham.edu/arts-and-culture/top-10-cases-on-ap...
indigochill 5y ago
> But visual art remixing textures feels more grey area to me than copy/pasting code or someone's writing. Artists use reference material all the time, and as long as the new work is the product of the new artist, it's all good. But directly copying art and then modifying it is still copying copyrighted material. My understanding is in the music remix world, if you want to feature a song in your remix, you should get a license. Similarly, my brother makes AMV videos and as I understand from him, the music rights-holders (not the anime rights-holders, interestingly...) will then claim all the monetization on those videos.
- judge2020 5y ago
  > But directly copying art and then modifying it is still copying copyrighted material. As my uncle comment suggests ( https://news.ycombinator.com/item?id=27426639 https://news.ycombinator.com/item?id=27426639 ) it's not clear cut. Just because you hit ctrl-c then ctrl-v on an asset doesn't mean what you're doing is automatically copyright infringement, it might be fair use assuming you changed something to a point where it's a derivative work based on the original work. > the music rights-holders (not the anime rights-holders, interestingly...) will then claim all the monetization on those videos. This is a Content ID Claim, and it's a system YouTube themselves made up so that companies can automatically start garnishing monetization earnings on videos that use their work in any capacity without having to do DMCAs themselves. In no way is this tied to copyright or fair use.
  - nsajko 5y ago
    > it might be fair use assuming you changed something to a point where it's a derivative work Pretty sure copyright doesn't at all work like that. I.e. copyright can be (and usually is, AFAIK) preserved across derivation.
    - SR2Z 5y ago
      The OP probably meant "transformative" and not "derivative."
  - ncmncm 5y ago
    Derived works also require a license.
  - bigiain 5y ago
    > In no way is this tied to copyright or fair use. Contenting ID it _totally_ about copyright. The only reason Google built it is to reduce the exposure they have to claims of copyright infringement, by easily (way too easily it turns out) allowing rights holders (or anyone claiming to be one) to post-fact claim earnings from infringing use of copyright material. Just because Google demonetises your video and sends a share of ad revenue to Sony/Warner/whoever, that doesn't mean you _didn't_ infringe copyright.
fvdessen 5y ago
As an artist I frankly wonder what's the point of these texture books if you can't re-use the textures in your own works. It's like an audio sample pack where you can't use the samples, or an algorithmic book where you can't reuse the algorithms ...
- moate 5y ago
  What kind of artist are you? As a painter, I can tell you there's use in having textures to reference while you draw things yourself. It's more like buying an image off getty to get the watermark off but not paying the extra 20 dollars for commercial use.
- philjohn 5y ago
  Different audio sample packs have different licensing terms - some confer full rights to use them in an audio production, some only in non-commercial productions with commercial requiring a license to be purchased. Similarly, in this case, it's a reference book - and there just so happens to be verbiage that says "for commercial use of any of these, contact the author".
- prpl 5y ago
  You're familiar with the Numerical Recipes books?
- aeturnum 5y ago
  You can re-use the textures in your own works. You can even create a new original work, using the textures as a reference, and pay nothing. The only thing you can't do is use the reference textures directly in a new work without securing an additional license. I'm pretty sure that, by volume, most art is not sold in a commercial environment and its creators could use the book without concern.
teachingassist 5y ago
> Would it have been fine if Capcom had re-created near identical patterns without use of the book's original digital files? In copyright law this is usually fine, yes.
bigiain 5y ago
> Not saying Capcom should profit without crediting the original artist. Capcom "crediting the original artist" would have made this even worse for them, it'd then be a slam dunk admission of copyright infringement. You cannot use a copyright work for free then "credit the original artist" to shirk your legal responsibility to negotiate a license to use the work. There is no "grey area" here. (Arguably there _should_ be, and the hardline copyright stance the actual law takes is mostly Mickey Mouse's lawyers and lobbyists fault, but that's the world we live in...)

ajross 5y ago

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-Designers/dp/0393730077 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.

xbar 5y ago
An incomplete Amazon blurb won't save you from the licensing requirement that exists in the text itself.
- stordoff 5y ago
  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.
  - klyrs 5y ago
    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?

aaron695 5y ago

There is no clear answer if you are looking outside of what a judge will decide. The book says - "the CD images can be used by artists and designers in developing concepts, preparing presentations for clients, and communicating visual information to others. Although the images are primarily intended for on-screen display, they can also be printed on either a black and white or color printer. It's clear, only "preparing presentations" not using in presentations. Equally the book buyers comments all think you can use the photos when making things. So clearly the CD gets sold for wink wink reasons and she would have to know that, but we also all know Capcom have had multiple people using the photos without everyone having a copy and they also know they are not a person just using the photos in a one off illegal presentation. Legally it will be complex, we will see. It is interesting she allowed formatting shifting, you could print the photos. Was that legal when the book came out or was she adding additional rights and how does that effect the default copyright.

bigiain 5y ago
I suspect Capcom's lawyers are frantically preparing arguments about precisely what they want "communicating visual information to others" to mean...
- aaron695 5y ago
  I actually felt some sort of weird stability to see that in 1996 people also just put meaningless words together and pretended they had meaning. But it was strange to leave that open, everywhere else it's a tight language to not allow the extended use, while not explicitly explaining it so it didn't stop book sales.
- rossjudson 5y ago
  I really, really doubt it. I bet Capcom's lawyers are frantically preparing a settlement proposal for substantially less than was requested, and that they are prepared to write a check for that sum today, instead of going to court. Juracek's lawyers know this, and that's why they're saying nothing. Saying nothing maximizes their ability to agree to whatever flowery no-fault language Capcom would like attached to the settlement, because those words cost nothing.

cwkoss 5y ago

Hypothetical Question: If someone trained a neural network to create wood textures, and 1 of N training images came from this book, would wood textures generated by this NN infringe on the author's copyright? To what extent does the size of N change the answer? (I'm sure 1 is no good, but is 10 enough? 100? 1000?)

tshaddox 5y ago
I imagine this would be treated by the legal system the same way any derivative work produced by a human would be.
curtisf 5y ago
(not a lawyer) My understanding of the situation in US copyright law is that the synthesized images would clearly be derivative works, and thus copyright holders have rights to the (portion of the) output which is derivative. However, such a use might be considered fair use. (Fair use is not an exception to copyright itself; it just limits what the copyright holder can stop you from doing) There is no perfect checklist of what constitutes fair use, but there are established criteria that weight in favor or against fair use. Substantiality may weigh in favor of fair use since only some of the input images appears in the output (and less so if mixing many together) Affect on the original work may weigh against fair use -- if you can use the texture synthesizer instead of buying the original texture reference book. I think there's limited precedent that machine learning models can claim fair use of their input text, but I'm guessing the specific case of reference textures => texture models may be hard to argue as fair use (unless you have rights to at least most of the inputs)
- ttt0 5y ago
  > the synthesized images would clearly be derivative works, and thus copyright holders have rights to the (portion of the) output which is derivative. Good luck proving it. So in practice it's basically legal.
  - cwkoss 5y ago
    If they find their image in the training dataset via discovery, that would prove it. I think the trickier part is figuring out that your image was used in the dataset or convincing the judge that you have standing to compel that discovery search. If you have a bunch of get requests from an AI company's corp IP that could do it.

whoknowswhat11 5y ago

I'm a lay person, but selling this book highlights: "CD-ROM included: easy-to-use screen resolution TIFF files of every image" If I'm buying a $200+ book with an "easy to use" CD of the images - they'd better be highlighting very very clearly that I can't use these in projects.

nsajko 5y ago
They're selling art, not a copyright law primer for lay people.
- whoknowswhat11 5y ago
  They are selling a book of surface textures to scenic artists including an easy to use CD of the images in digital format. Are you serious that this is like buying art? This really then feels like a TOTAL scam.
  - nsajko 5y ago
    It's not art meant for viewing pleasure, as far as I understand the intended use is rather as a reference work. I.e., the artist who uses the book should base their art on the photographs in the book (but of course without copying, unless they get a license to do so).
    - whoknowswhat11 5y ago
      Then this is SUCH a scam. I should base my art on the photos without copying. If it's just for me to look at and not copy, why the CD? I can look at the printed picture to base my art on that. Here is the amazon blurb "ready to be used in your designs, presentations, or comps, as backgrounds or for general visual information" What absolute garbage.
      - lukebitts 5y ago
        A good library of references is very much worth the price, even these days where you can find anything on the internet.

ncmncm 5y ago

Poor Capcom! If only there were somebody, anybody, they could have asked about what might happen if they ignored copyright terms and also the photographer's request that they pay up. If only they had ever heard of possible trouble from lifting others' work. After all, they have always been happy to let anybody at all sell jailbroken copies of their own games, online!

helios_invictus 5y ago

When this book was published in 1996 this sort of model for reference/inspiration was very common in the graphic design world. I had access to a library of books like this. Part of my job was to either work with an art buyer to get the art into production (having all ready done the production from the CD-ROM) or create a suitable replacement if we couldn't get a good price/were feeling cheap.

xmprt 5y ago
Piggybacking on this, here's a relevant video about the history of texture CDs and where a lot of old game textures come from. https://www.youtube.com/watch?v=bsCN0Yx2Vbs https://www.youtube.com/watch?v=bsCN0Yx2Vbs

overgard 5y ago

I figure this has to happen all over the place. One might hope texture artists are super careful about copyright but realistically the way these things are built someone's gonna use a photo in a photoshop layer somewhere they got off google image search. Capcom just got caught.

danybittel 5y ago

As a visual artist and coder, it is somewhat sad to see how this HN crowd all seem to question the license or the artist. If it were a coder that had published code in a book, and Capcom clearly used it in a commercial game, this discussion would look a lot different.

acomjean 5y ago
It’s looks pretty clear the photos were taken. I think if you bought a coding book and it had functions, you’d likely be comfortable using that code as part of a bigger projects, with some modifications to suit your needs. As coders we don’t want to get trapped into a very high cost infringement event when it appears we’ve paid for something but the terms aren’t clear. $200 for a book/cd of textures seems weird that you wouldn’t get to use them. Can you imagine buying a font for “inspiration” but to use it requires another license. This also gets into a interesting grey area. They’re licensing photos of a cracked glass or a mansion door and all sorts of textures, but they didn’t create the door or the glass. some of the sculptural elements weren’t created by the photographer. As a photographer myself you can see where sometimes things get a little fuzzy. In the end the lawyers will work something out.