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: Now, I actually hesitated in posting this image, seeing as it's what got Gawker sued (suggesting the sort of chilling effects of silly copyright lawsuits). Here's why the original lawsuit seems odd, and why Gawker seems likely to have a very strong fair use claim -- with an added point as to why I have an even stronger fair use claim in posting it here:

• 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.

If we go through the traditional four factors test, it's difficult to see where McCulloch has any leg to stand on.

1. 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.
   
   
2. 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.
   
   
3. 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.
   
   
4. 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.

What's a bit surprising is that THREsq notes that McColloch is apparently represented by Shourin Sen, who runs the excellent Exclusive Rights copyright law blog, which we've linked to in the past for its smart and reasonable analysis. I'm at a bit of a loss, unless the original blog post on Kotaku was substantially different than what it is now, as to how this could possibly be a case of copyright infringement, rather than fair use.

Filed Under: copyright, dante's inferno, fair use, lindsay mcculloch
Companies: ea, gawker