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[Aroll]

The part about using screenshots is silly. Like posting screenshots is a copyrights violation?

The use of a similar "seal of quality" is sketchy though, I'll give Nintendo that.


Not to start a decade-old console war but... The more-or-less equivalent Kickstarter for a Genesis/Megadrive book wasn't shut down by Sega. Either they got their copyright stuff sorted out properly* and these guys didn't, or... Sega does what Nintendon't? (Or Sega doesn't what Nintendoes, I should say... xD)

Edit: I just re-read part of the Genesis KS campaign pitch and they mentioned they were "working closely with Sega" on it and Sega even provided assets. I guess this NES book wasn't like that at all, then?

Posting screenshots, no. Selling them? Yes.

 

[Dascu]

Sam Dyer says:
Hi
Nintendo have filed a copyright claim against the campaign. I have taken lots of legal advice prior to launching the campaign plus I also spoke to Nintendo UK. The use of game imagery is completely legal under FAIR USE' law.
I have now made some little tweaks to the campaign to make it even more watertight but I wholeheartedly believe that the book is 100% above board.
WHAT HAPPENS NOW
Don't panic! The campaign is under review whilst I talk to Nintendo. Your pledge is safe and in the unlikely case I'm unsuccessful, it will go right back to you as it would with any stopped campaign. There's no need to panic and cancel your funding as your money is not at risk.
The campaign is essentially 'frozen' as is the timer. So fingers crossed when we're live again, the clock will start from with 24 hours left and we can complete the campaign.
The whole thing is frustrating but please stick with me. I've invested a lot of time and energy ensuring that this is legal and above board.
Will update you when I have some news.
Sam

This is weird since the UK (and Europe in general) doesn't have a fair use defence in copyright law.

 

[MrCunningham]

Considering the likely culprit, I don't think Pat had a parody seal of quality for effect in his book.

That's true. But they are also going after this book for the screenshots as well. Which is something that Pat also has in his book.

 

[SinCityAssassin]

That's true. But they are also going after this book for the screenshots as well. Which is something that Pat also has in his book.

Pat's book was also a REVIEW guide. That's likely a clear thing about it that let it avoid a letter.

 

[Orniletter]

The thing is Nintendo has a huge history of shutting down fan projects, no matter what they are. This comes as no surprise.

This is not true.

They always turn a blind eye to fan projects that are not

1. about reproducing a game they sell for free (the browser version of Zelda and Mario 1, Mario Maker for free)

2. about profiting financially off their properties (that awful Metroid Movie, Star Fox show)

They don't care if some people spend their free time hacking new Mario levels together or working on a fangame called Mother 4.

 

[MrCunningham]

Pat's book was also a REVIEW guide. That's likely a clear thing about it that let it avoid a letter.

That's also true.

 

[King Al B]

In the LoZ screen shoot, does the genre say "shoot um up" ???? No wonder they got shut down...

The description paragraph is F'd too..

 

[Commo]

This is weird since the UK (and Europe in general) doesn't have a fair use defence in copyright law.

So the Kickstarter project creator is bullshitting?

 

[PtM]

This is weird since the UK (and Europe in general) doesn't have a fair use defence in copyright law.

If he spoke with some clueless PR guy about fair use, he might have gotten any answer.
Europe has the right to cite, also.

So the Kickstarter project creator is bullshitting?

Unlikely. For one, he doesn't say what he talked about with NUK. The fair-use rationale might as well come from his legal advice.

 

[JetSetRadio]

Outsource to China.

 

[test_account]

Not surprising. Taking ideas like this to Kickstarter without solid permission first is not really a good idea. Its better to make it on your own or the backing of a forum etc.. Personally, i bought a Scandinavnian NES collection book a while ago. Its like 250-300 pages or something, with a lot of pictures of NES games and info being released in Scandinavia. Its a real high quality book. It was possible without the need of Kickstarer.

 

[kitsuneyo]

I dunno if I agree with this law, if I buy a game and then take a screenshot of me playing the game and sharpen it and clean it up a bit - isn't it art by that point?

You can do that and call it art, but you can't sell it legally if it's essentially someone else's work.

 

[King Gilga]

Seems fair enough.

 

[Experien]

I guess Nintendo doesn't care about the N64?

 

[emb]

I really don't see what they did wrong or how it's shitty.

For real? Some people just wanted to print a nice book with pictures of NES games. Nintendo, with no apparent intention to print the same book, says not to create an additional nice thing for the world.

I'm not that interested in the book, didn't back, wouldn't have bought it unless I found it in the wild for a couple bucks. But to see something so innocuous taken down is annoying. Continues to show that copyright covers too much and fair use not enough. If screenshots are seriously covered, the law is broken.

The seal thing makes sense though, I can understand enforcing that if it might make the product look like an official thing, even if only at a glance. It's no need to strong arm people though, just make them take off the seal.

The reason behind it is probably just to cover themselves so they don't end up, in some theoretical future, getting hit with "well you didn't your IP when that book came out". And the only reason this is even notable enough for that, probably, is because of money being involved. I don't know how much it raised, but being on Kickstarter, probably a drop in the bucket.

 

[meanspartan]

For real? Some people just wanted to print a nice book with pictures of NES games. Nintendo, with no apparent intention to print the same book, says not to create an additional nice thing for the world.

I'm not that interested in the book, didn't back, wouldn't have bought it unless I found it in the wild for a couple bucks. But to see something so innocuous taken down is annoying. Continues to show that copyright covers too much and fair use not enough. If screenshots are seriously covered, the law is broken.

The seal thing makes sense though, I can understand enforcing that if it might make the product look like an official thing, even if only at a glance. It's no need to strong arm people though, just make them take off the seal.

The reason behind it is probably just to cover themselves so they don't end up, in some theoretical future, getting hit with "well you didn't your IP when that book came out". And the only reason this is even notable enough for that, probably, is because of money being involved. I don't know how much it raised, but being on Kickstarter, probably a drop in the bucket.

Ya, this is what s typically said. It's bullshit. No Court ever would toss out their copyrighted IP because they let things like this slide, it is preposterous. If they were letting people make unofficial mario games, maybe then.

 

[Moral Panic]

For real? Some people just wanted to print a nice book with pictures of NES games. Nintendo, with no apparent intention to print the same book, says not to create an additional nice thing for the world.

I'm not that interested in the book, didn't back, wouldn't have bought it unless I found it in the wild for a couple bucks. But to see something so innocuous taken down is annoying. Continues to show that copyright covers too much and fair use not enough. If screenshots are seriously covered, the law is broken.

So do you think I can take a screenshot from a movie print it on a shirt and sell it and that should be OK?

The reason behind it is probably just to cover themselves so they don't end up, in some theoretical future, getting hit with "well you didn't your IP when that book came out". And the only reason this is even notable enough for that, probably, is because of money being involved. I don't know how much it raised, but being on Kickstarter, probably a drop in the bucket.

Doesn't apply to copyrights and only applies to trademarks in very limited circumstances.

 

[Dascu]

If he spoke with some clueless PR guy about fair use, he might have gotten any answer.
Europe has the right to cite, also.

3. Member States may provide for exceptions or limitations to the rights provided for in Articles 2 and 3 in the following cases:

(d) quotations for purposes such as criticism or review, provided that they relate to a work or other subject-matter which has already been lawfully made available to the public, that, unless this turns out to be impossible, the source, including the author's name, is indicated, and that their use is in accordance with fair practice, and to the extent required by the specific purpose;

I'd say that first of all it's not harmonized across the EU. And second, it's rather vague to what extent it works for criticism or review and if it's in accordance with fair practice. My general opinion is that Nintendo is well in the rights to block this and I think judges in the USA and Europe would be inclined to agree. It's also really stupid of the Kickstarter author to not check this more thoroughly before starting this entire campaign.

So the Kickstarter project creator is bullshitting?

Well, either way it would've been a different situation in Europe compared to the USA regarding copyright and fair use. Potentially the book would've been fine in the USA, but I see no way how a commercial product like this would've been legal in Europe.

The reason behind it is probably just to cover themselves so they don't end up, in some theoretical future, getting hit with "well you didn't your IP when that book came out". And the only reason this is even notable enough for that, probably, is because of money being involved. I don't know how much it raised, but being on Kickstarter, probably a drop in the bucket.

For what it's worth, this is only relevant for trademarks, not copyright.

 

[yllekz]

...so wait, how does this get shut down yet Pat the NES Punk's "Ultimate Nintendo: Guide to the NES Library" can make it to release?

Double standards...

 

[Chaos17]

So the Kickstarter project creator is bullshitting?

Seems so https://en.wikipedia.org/wiki/Fair_use
Europe isn't listed at all in that.

 

[El Topo]

Seems so https://en.wikipedia.org/wiki/Fair_use
Europe isn't listed at all in that.

I can assure you that many European countries (e.g. Germany) have no concept like fair use.

 

[discoalucard]

Having had first hand run-ins with this kind of thing (HG101 ran into a similar problem with my Castlevania book), there are certain things that are and aren't allowed under Fair Use.

Using screenshots and images is perfectly legal, but it must be used to accompany a critical or historical text. Ultimately it comes to: are you selling text and using art with it, or are you selling art with a tiny amount of text? Based on the previews for this book, plus the fact that the title is "Visual Compendium", it seemed like this project was selling the art, which is a definite no-no. This is in contrast to Pat's book, which is emphasizing the reviews. I'm sure this wasn't a problem with previous books because the project was broader (arcade marquees from different companies, old computer games from British companies which probably don't exist anymore), as opposed to clearly using Nintendo's properties, a company which is still very much alive.

If Nintendo were smart they'd offer a license, which would cost the Kickstarter project money, but make it totally legit. Don't know how much Nintendo would charge for this, but from an another author I heard Capcom quoted $15k to license one of their properties for an "official guide" type book. Since the campaign got like $100k so far and was faffing about with things like lenticular covers, I'm sure they could afford it.

 

[Harlock]

So the difference between this project and Ultimate NES Guide is that the later uses images in a informative way?

 

[emb]

So do you think I can take a screenshot from a movie print it on a shirt and sell it and that should be OK?

Hmmmm. I think that's a pretty good point, and it probably moves closer to lines of products that already exist. And likewise, Nintendo probably does have existing artbooks, even if not in the same style as this thing.

I think a screenshot should be fine though. Would a shirt with a screenshot do much harm? Probably not. Probably not nearly as much as unique artwork that evokes the same franchise and already gets printed on shirts at places like Redbubble.

And for what it's worth, I think things like fanmade books and shirts help more than they hurt; in that, you have people walking around advertising your product, or leaving ads for your product on their coffee table. At the same time, how far does it go? If I take some white tee shirts and draw Mario or write the word Spiderman on there with a marker, then sell those, should it be shut down?

I think screenshots of games are pretty different than screens of movies too. A movie is a collection of static shots, while in a game your gameplay helped create the shot you take. Depending on the game, you might not get anything unique (obviously we've seen most screens of popular NES games), but the player still plays a definite part.

You raise a good point though, and I don't know where exactly to draw the line. I saw the Avengers example a little earlier in the thread, and it probably wouldn't fly on a large scale. I just think it should be evaluated on a more case by case basis in terms of "can this pose a real threat to our profits or IP management?" I'm admittedly pretty naive though.

Doesn't apply to copyrights and only applies to trademarks in very limited circumstances.

Oh, that's good to know. Thank you!

Would the seal be considered a trademark?

 

[DeathSparks]

First off, it's not plagiarism. Second, there are plenty of situations in which you can use copyrighted material without permission. Most parody and criticism falls under fair use -- otherwise, it would be impossible to criticize certain media since no publisher would allow you to mention / quote / sample it.

My Mistake, I should've said Copyright Infringement.

 

[stan423321]

I can assure you that many European countries (e.g. Germany) have no concept like fair use.

That really depends on what you mean by "concept like", though. The particular case of using images of art for review/informational purposes seems to not have an equivalent, but a bunch of things that are typically covered by FU in US are simply introduced separately.

 

[PtM]

That really depends on what you mean by "concept like", though. The particular case of using images of art for review/informational purposes seems to not have an equivalent, but a bunch of things that are typically covered by FU in US are simply introduced separately.

Germany do have the right to quote, review/informational purposes fall into that category, provided (!) the use is minimal, adequate and essential for the new piece of work. Which I don't see with a visual compendium, just for the record.

 

[discoalucard]

So the difference between this project and Ultimate NES Guide is that the later uses images in a informative way?

Absolutely. It uses the box and screenshots to illustrate what the game looks like, and the screenshot background to provide a visual flourish...but the emphasis is clearly on the text.

Though if I were them I wouldn't use a logo that was so close to the actual Nintendo logo, and probably stick in "unofficial" in there somewhere just to cover the bases. One of the other major aspects of Fair Use is that it can't be confused with an official product.

 

[El Topo]

Germany do have the right to quote, review/informational purposes fall into that category, provided (!) the use is minimal, adequate and essential for the new piece of work.

It is even more restrictive than that. A brief overview (for Germany) can be found (in German) here.

That really depends on what you mean by "concept like", though.

There are many (very restrictive) exemptions, but comparing it to fair use is (in my opinion) very misleading. This is a country where you can reasonably get sued for liking a picture on Facebook.

 

[KojiKnight]

So the difference between this project and Ultimate NES Guide is that the later uses images in a informative way?

Probably has more to do with the screenshots being small, in the corner, and the article taking up most of the page.

Also, it doesn't have the 'parody' logos.

 

[Stiler]

Put that on a T-shirt and start selling it, and go ahead and see how far "Fair use" gets you.

You're missing the point completely, slapping an image on a t-shirt is completely different then if you take that screen and then make a book about the history of comic book movies and include that picture from the movie along with text and historical commentary, then it'd be fair use.

Your work has to be transformative in some way, adding commentary, critiquing, educating, etc.

Slapping an image on a shirt and selling the shirt is not transformative in any way.

 

[mollipen]

...so wait, how does this get shut down yet Pat the NES Punk's "Ultimate Nintendo: Guide to the NES Library" can make it to release?

Double standards...

If I make a magazine or book, and use screenshots to support the content (written information, preview, review, feature story, interview, whatever), I'm fine. If the screenshots are the content, I have a problem.

Very big difference. Had this book, say, had that full-spread Zelda shot as the opening of two more pages of deep written content for the game, and every game was handled that way, it wouldn't have been a problem most likely.

 

[IrishNinja]

Late here, but still bummed about this - was looking forward to it, and I haven't seen a KS book pulled since that neat looking Mike Tyson's punch out!! One a while back

Having had first hand run-ins with this kind of thing (HG101 ran into a similar problem with my Castlevania book), there are certain things that are and aren't allowed under Fair Use.

Using screenshots and images is perfectly legal, but it must be used to accompany a critical or historical text. Ultimately it comes to: are you selling text and using art with it, or are you selling art with a tiny amount of text? Based on the previews for this book, plus the fact that the title is "Visual Compendium", it seemed like this project was selling the art, which is a definite no-no. This is in contrast to Pat's book, which is emphasizing the reviews. I'm sure this wasn't a problem with previous books because the project was broader (arcade marquees from different companies, old computer games from British companies which probably don't exist anymore), as opposed to clearly using Nintendo's properties, a company which is still very much alive.

If Nintendo were smart they'd offer a license, which would cost the Kickstarter project money, but make it totally legit. Don't know how much Nintendo would charge for this, but from an another author I heard Capcom quoted $15k to license one of their properties for an "official guide" type book. Since the campaign got like $100k so far and was faffing about with things like lenticular covers, I'm sure they could afford it.

Yeah, makes you wonder if Nintendos simply not licensing much? That Zelda book to Dark Horse felt like it could've led to more, but I've sadly not seen that in the time since.
Also: again, your CV book was fantastic!

*edit who pays for Pat's thoughts on anything

 

[@MUWANdo]

Yeah, makes you wonder if Nintendos simply not licensing much? That Zelda book to Dark Horse felt like it could've led to more, but I've sadly not seen that in the time since.

Nintendo collaborations are a "don't call us, we'll call you"-type deal, for the most part, and they're pretty strict about not responding to unsolicited requests for contributions to fan works of all sorts, including press or charity events or what have you.

The odds of them ever okaying an independently-produced fan work like this one are extremely low.

 

[IrishNinja]

Nintendo collaborations are a "don't call us, we'll call you"-type deal, for the most part, and they're pretty strict about not responding to unsolicited requests for contributions to fan works of all sorts, including press or charity events or what have you.

The odds of them ever okaying an independently-produced fan work like this one are extremely low.

Certainly seems that way, yeah
Which I get, but then you look at, say, fan game efforts and typically they seem more tolerant than say, square and others...granted, differeebt entities, and I'd expect most any living company might cone down on this without their permission....I'd just love to see this one still happen somehow, it looked fantastic

 

[Hesh]

You do not need permission under fair use (and this is something that's really eroding creativity these days, so many people say "ask permission or don't use it," even scholars/museums have started doing this) .

If you are making something for historical or educational purposes and you are using literally snippits (A screengrab from an entire game is clearly a very tiny snippit, like taking a frame from a movie) it should clearly fall well within fair use.

This includes for commerical sale. How do you think reviewers make money? Take someone like Cinemassacre (Angry Video game nerd) he makes money from reviewing games and movies and clearly uses them in his videos. Same principal applies, as long as you are using a snippit and not showing the entire thing, and you're providing commentary or eductation on the work it usually falls within fair use.

You still need permission, even for educational purposes. To take your example about taking a frame from a movie, for my cinema classes in college our textbooks had frames from famous movies in them and each and every one was accompanied by the credit/copyright notice for the film's owner. As I said, when money changes hands you need to have written permission from an intellectual property owner otherwise they can either shut you down, or worse, let you graze a bit and then take you to court for more money than you brought in with the offending product.

 

[Lothars]

Very big difference. Had this book, say, had that full-spread Zelda shot as the opening of two more pages of deep written content for the game, and every game was handled that way, it wouldn't have been a problem most likely.

The other books he's made for Commodore and Amiga had stuff like that and I have no doubt that this one would have had this to. I am still dissapointed about this but ideally it will be settled and still come out.

 

[Stiler]

You still need permission, even for educational purposes. To take your example about taking a frame from a movie, for my cinema classes in college our textbooks had frames from famous movies in them and each and every one was accompanied by the credit/copyright notice for the film's owner. As I said, when money changes hands you need to have written permission from an intellectual property owner otherwise they can either shut you down, or worse, let you graze a bit and then take you to court for more money than you brought in with the offending product.

No you do not, no permission is needed at all if what you are doing falls under fair use. You might be confusing that with licensing the material.

Giving credit is not the same as asking permission either.

If you are using a frame from a movie in a book detailing something like cinematography or something to do with education/history that falls under fair use, 0 permission is needed in that case.

If you however take that still-frame from a movie, slap it on a shirt? Then you'd need to license it to use on a shirt, because you're work isn't transformative/educational/crituqing or adding anything to it.

The idea that you need to ask permission, even if it's under fair use, is something that has became more common these days and it is absolutely not needed.

 

[spekkeh]

You still need permission, even for educational purposes. To take your example about taking a frame from a movie, for my cinema classes in college our textbooks had frames from famous movies in them and each and every one was accompanied by the credit/copyright notice for the film's owner. As I said, when money changes hands you need to have written permission from an intellectual property owner otherwise they can either shut you down, or worse, let you graze a bit and then take you to court for more money than you brought in with the offending product.

Well textbooks straddle the line between educational and for profit. If you write a paper or even publish a dissertation, it's considered fair use and you don't need permission per se.

This visual compendium is very clearly not fair use, I don't know who his legal advice was.

 

[Stevey]

Lol they didn't even ask Nintendo's permission?
GJ guys

 

[BumblebeeCody]

It sucks but I'm not surprised.

 

[Mental Atrophy]

I think these sorts of things ought to be allowed, but if they tried to publish in anyway and Nintendo sued them, there's a pretty big chance that Nintendo would win. Fair use defense can be fickle, though, and sometimes you only need to make a few changes to tilt it the other direction.

 

[Ninja Dom]

Each page would've had info about the game & a paragraph or two talking about it, along with interviews, fan art, & developer profiles, plus a few other things like going into unreleased and homebrew games.

Interviews with who?

Developer profiles?

Wouldn't they already be talking to Nintendo if it had those?

 

[@MUWANdo]

Interviews with who?

Developer profiles?

Wouldn't they already be talking to Nintendo if it had those?

They plan to interview a few European developers and I think they're also reprinting an existing interview with Masayuki Uemura. Their interview lineup was not extensive by any means.

 

[LordRaptor]

If you are using a frame from a movie in a book detailing something like cinematography or something to do with education/history that falls under fair use, 0 permission is needed in that case.

If you however take that still-frame from a movie, slap it on a shirt? Then you'd need to license it to use on a shirt, because you're work isn't transformative/educational/crituqing or adding anything to it.

So adding "Film was shit" as a caption makes a T-Shirt Fair Use?
Nope.

The idea that you need to ask permission, even if it's under fair use, is something that has became more common these days and it is absolutely not needed.

Here's the really fundamental point; you (as user of others work in whatever manner) don't get to be the one who decides whether something is or is not "Fair Use".

That's why people contact rights holders; if a rights holder considers something fair use then there will never be a problem.

 

[Enforcer]

So adding "Film was shit" as a caption makes a T-Shirt Fair Use?
Nope.



Here's the really fundamental point; you (as user of others work in whatever manner) don't get to be the one who decides whether something is or is not "Fair Use".

That's why people contact rights holders; if a rights holder considers something fair use then there will never be a problem.

Leaving aside whether or not the person behind this book was violating copyright or not, rights holders are absolutely not the ones who determine whether the use of copyrighted material falls under fair use. That's completely backwards to the entire concept of fair use. If it were up to the rights holders, then nothing would be fair use. Unfortunately, there isn't one set of clear cut guidelines, but the determination of what's fair use or not is absolutely not in the hands of the rights holders.

More info on how fair use is determined: http://fairuse.stanford.edu/overview/fair-use/what-is-fair-use/ (tl;dr points of interest: the first two paragraphs and the opening of page 2 of that text.)
Obviously the link applies to the US only because as others have stated, each country has its own definition.

 

[LordRaptor]

Leaving aside whether or not the person behind this book was violating copyright or not, rights holders are absolutely not the ones who determine whether the use of copyrighted material falls under fair use. That's completely backwards to the entire concept of fair use. If it were up to the rights holders, then nothing would be fair use. Unfortunately, there isn't one set of clear cut guidelines, but the determination of what's fair use or not is absolutely not in the hands of the rights holders.

I didn't say it was in the hands of the rights holders; I specifically said it that it wasn't in the hands of the (potential) infringers.
As you say, a rights holder is always going to say "no thats mine and I want money for it" and an infringer is always going to say "No, its fair use I want money for it".
Contacting a rights holder and saying "I am doing a work consisting of <whatever> and would like to use <specific work> to illustrate <critical analysis>" and getting a rights holders permission avoids the step of who actually decides what is or is not fair use - the court.

 

[Enforcer]

I didn't say it was in the hands of the rights holders; I specifically said it that it wasn't in the hands of the (potential) infringers.
As you say, a rights holder is always going to say "no thats mine and I want money for it" and an infringer is always going to say "No, its fair use I want money for it".
Contacting a rights holder and saying "I am doing a work consisting of <whatever> and would like to use <specific work> to illustrate <critical analysis>" and getting a rights holders permission avoids the step of who actually decides what is or is not fair use - the court.

I see what you're saying and that does make a certain amount of sense. The way I read your last post, it seemed to me that you were arguing in favor of the rights holders being the arbiter of fair use, which I see now wasn't the case.

It would be nice if there was a clear guideline and/or a set of standards as to what was and wasn't fair use so all the legal shenanigans wouldn't be necessary, but I may as well wish for superpowers while I'm at it.

 

[LordRaptor]

It would be nice if there was a clear guideline and/or a set of standards as to what was and wasn't fair use so all the legal shenanigans wouldn't be necessary, but I may as well wish for superpowers while I'm at it.

It's a tricky issue, because the owners of the property itself are entirely individualistic as to how permissive they are with their use, but generally the more purely commercial an 'infringing' work is, the less a court is likely to side with the infringer.

I don't see a court deciding that a coffee table book with minimal editorial commentary being released purely on commercial grounds and whose commercial appeal is specifically based on the IP of another party is "fair use" or "transformative" though
e:
I mean, the history of hip-hop is filled with issues regarding sampling where courts have ruled a small hook from a song, resampled into a beat and then with entirely new lyrics and meaning added by a different performer have not been "transformative"

 

[Ninja Dom]

Anybody here with extensive knowledge of copyright and infringement law? Can you provide us some insight?