Gawker Sued For Copyright Infringement For Showing Image That Inspired EA's Dante's Inferno
from the fair-use-isn't-so-fair dept
THREsq points us to a rather odd copyright infringement lawsuit filed against Gawker. Artist Lindsay McCulloch has sued the blog company because of a Kotaku blog post that included an image of McCulloch's "Dante's Inferno" illustration, which you can see here:![](https://i.imgur.com/anxMh.jpg)
- Kotaku didn't just post the random image. It was highlighting a point in a Kotaku live chat, where the producer of the EA game Dante's Inferno noted that it was this image that inspired him to create the video game:
"The real "ah ha" moment for me was seeing this really cool map that someone created of the 9 circles of hell. You see a lot of these maps, you know the "V" shaped cross section, but there was one in particular that had all the call-outs for the different sections, the "bosses" of each circle (Charon, Minos, Cerberus, etc.), and I just looked at that map and said, "that's a level-based game waiting to happen."
- So it wasn't just a random use of the image -- it was a story about that specific image and included commentary beyond just the image.
- I don't know if the post changed, but as it stands right now, the image is a small thumbnail and there are two separate links to McCulloch's full image. Update: People are saying that the original post was not a thumbnail, but had a much larger version of the image. I'm still not sure how that wouldn't get fair use protections, however...
- There's a whole bucketload of derivative works issues here: McCulloch's image is derivative of the book. The video game is derivative of the book and the image. The blog post is derivative of all of that.
- Us reporting on the lawsuit where this image is central to the lawsuit again highlights how this is likely fair use.
- the purpose and character of the use
This clearly weights towards fair use. There is new expression around the image, describing how it was used to inspire the video game. On top of that, being used in reporting is quite a common form of fair use.
- the nature of the copyrighted work
This factor tends not to get that much attention, but the key issue is usually whether the content has already been published. In this case, it has been and is available for everyone to see on the web anyway.
- The amount and substantiality of the portion taken
While this is the whole image, it appears to be a thumbnail of the image and provides additional commentary. As we've seen in a variety of cases involving fair use questions concerning images, making use of the entire image, even in commercial use, can still be fair use if it makes sense in context. In this case, that certainly seems to be true.
- The effect of the use upon the potential market
This is one of the "big" tests, and it again weighs entirely towards fair use here. Is anyone less likely to purchase or license the work because of Gawker's use? That seems highly unlikely. If anything, it brings additional attention to both the artist and the work.
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Filed Under: copyright, dante's inferno, fair use, lindsay mcculloch
Companies: ea, gawker
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I hear some guy even wrote a book based on the game, which was of course entirely based on her art. She should get some of the publishing proceeds for that book.
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Inpiration doesn't have to be authorized. Are you seriously saying that it should be?
They stole her idea and Gawker is celebrating this and facilitating further theft!
You can't steal an idea.
She should get some of the publishing proceeds for that book.
No...no she should not. There is no ethical or legal foundation for that assertion. The game developer saw a piece of art that prompted a revelation about the relationship between a famous poem and the structure of a computer game. The game developer didn't use the actual expression of that picture. It was merely the trigger for an idea. The book based on the game is even further removed from the original picture.
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I was being entirely sarcastic. I was trying to make the most absurd argument I could think of in favor of "intellectual property rights" in order to point out how stupid the lawsuit is.
The book to which I was referring was Dante Alighieri's Divine Comedy. I was making the joke that someone who possibly didn't pay attention in their 10th grade English class might believe Dante is a modern writer who wrote the book based on the game.
I'll start employing the tag again, I guess.
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Unfortunatelly, no matter how outrageous you try to be in order to be sarcastic, especially with IP issues, there are people out there who actually think that way. Today's satire is tomorrow's headline.
The book to which I was referring was Dante Alighieri's Divine Comedy.
Ah, I think the word "book" threw me off. In my head, the Divine Comedy is a poem. That, and it's not uncommon for games to spawn book deals.
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I think we associate "book" with "novel" or "prose" too often. You can have a "book of poetry," but we associate that as being multiple poems rather than one epic poem, akin to a "book of short stories," rather than a singular work.
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Are you sure that they were not being sarcastic?
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http://www.techdirt.com/articles/20100810/02011710566.shtml#c381
I guess the misunderstanding is what I get for trying to please everyone.
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Do you notice the contradiction in this?
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As in, isn't it ironic that she she might be mad that EA 'stole' the idea that she 'stole' from Dante, who probably 'stole' parts of it from Catholic literature and mythology...
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EA was not using the image on it's packaging, and Kotaku isn't selling the image, they were just showing it as a reference. So, it wasn't used for commercial gain. Can someone copyright an image in such a way that no one can refer to it or be inspired by it?
Ea and Kotaku were nice enough to give credit to the artist, which ostensibly could improve her sales and awareness. She actually gained from it's use.
Because Kotaku is basically acting as a news service, it's no different from Entertainment Tonight showing a movie poster when referencing it, or CNN showing a company logo in a story. The precedent is easy to see right at the top of Kotaku.com. There are 7 screenshots of game properties being use,d besides the Dante's image, to dress up their relevant articles.
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Infringement???
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Full size
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That website lists the copyright notice on this page: http://www.worldofdante.org/inferno_detail.html, as:
Source: Lindsay McCulloch, 2000. The copyright to the illustration of the map of Hell is held by Lindsay McCulloch. Publication (print or electronic) or commercial use of this drawing is strictly prohibited.
It should be something like, "publication (print or electronic) or commercial use of this drawing is strictly prohibited, except where such use is fair use or is allowed by law."
I've seen similar notices on DeviantArt a lot. 15 year old's post doodles they drew in their algebra class and then post in all caps that you're not allowed to even save copies of their drawings on your hard drive for personal use. It's as absurd as stating that no one can link to your website without your authorization.
But then, the media companies do this all the time. The RIAA lawyers have argued in court that you can't even make backups of your own CD's. They try to pass off what they authorize as what is allowed by law. Which I guess makes sense since they have likely contributed substantially to the wording of much of the copyright legislation of the past several decades, but that doesn't mean their word is law (entirely or yet).
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How?
I thought copyright only lasted so many years, wouldn't the basic ideas and expressions of Dante's Inferno be public domain?
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Re: How?
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Fair Use Factor #2
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Gawker Sued For Copyright Infringement For Showing Image That Inspired EA's Dante's Inferno
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