* creepy music * We cover a lot of scary stuff on this show, but today is, no clickbait, the scariest topic of all! Copyright. With a little dose of FNAF. All my favorite topics in one episode. *straining* I love 2019! * “cool” music * Hello Internet! Welcome to game theory, where today, call me Gloria Borger. because our top story is an OOPSIE One big oopsie made by one big man. Actually, I don’t know what his relative size is ( -v-) He’s just big in the gaming space. That man’s name is Scott Cawthon! Now, if you’re not familiar with what happened, let me catch you up! Last episode, we analyzed a teaser image for Scott’s new VR game. FNAF: Help Wanted. What I didn’t mention in that video, though was that it was only online for just a couple of hours. In fact, by the time I had gotten to check out this thing, It had been wiped clean from the internet! Only preserved thanks to some dedicated redditors. specifically GBAura Recharged. Now Scott is no stranger to posting things only to rip them off the internet later. He’s done it with comments on my videos, he did it with version 1 of FNAF world, His Contents of the infamous FNAF four box. Yep. Those got changed. Heck, even the script for his new movie was written, approved and ready to shoot, and then he just threw it out! like this community deserves better! But this time, it was different. this time, It was because the team working on the VR game, Steel-Wool had unintentionally used fan art, as he said on Reddit, quote: He then went on 2 days later to clarify further, quote again, So the TLDR of this whole thing is that he pulled down the teaser because it used recolored, re skinned models made by a fan of characters that Scott Cawthon himself created, that looked so close to the original creations, that his own team couldn’t tell him apart from the originals. and this sparked a really interesting question in my head. did Scott legally have to do this? These are his characters after all. And the fan made models were so close that they probably wouldn’t have been seen as any sort of transformative use now obviously he cares about this community a lot and pulling the teaser was absolutely the correct decision from a goodwill standpoint, but what would the law say about this? After doing the research, It’s a lot more complicated and interesting than you might think. To get there We’re going on a twisted copyright journey That’ll show us why Naughty Dog lives up to its name, why your photographs of the Eiffel Tower are probably illegal and why everyone’s in an uproar about Rule 34. Oh boy, Welcome online, copyright law doesn’t know what’s hitting it. That’s a terrible last line. Whoo boy copyright law doesn’t know what’s hitting it copyright laws don’t have a- An indicator- just gonna segway over to the next paragraph Oh! And before we dive into this episode, you might have noticed that I actually released another video alongside this one today, in that upload I specifically talked about this channel and a lot of our own personal issues that we’ve had with fan art in the past. As Well as a way to protect yourself if you’re a fan artist who’s working online right now. It’s actually a really important video for me, touching on a topic that I have stayed really quiet about for quite a long time. So, before you go down into the comments and start laying into me for not being allowed to cover this issue because I Supposedly stole fan art in the past. please go watch that video, too. That’s actually why it’s a dual upload I couldn’t really decide which one made more sense to go first Because really the two complement each other they comment off of each other, so, just please watch both. It’ll do me a favor. It’ll save me a lot of grief when I read the comments, in this. Save my- save my self-esteem a lot of grief as well Oh! The other disclaimer that I should mention at the beginning of this episode is that there’s a lot of fan work out there that is transformative; that is not considered to be a copy of anyone else’s work. This episode actually isn’t about that. Today, we are purely focused on fan art that’s intended to closely represent a character that already exists and all the basic legal mumbo-jumbo That’s around that, so we all on the same page? We all good? Great. Let’s get into it! Now, Scott is far from the only game maker that’s had a copyright oopsie when it comes to teasing a new game. Case in point the original version of the trailer for Uncharted 4: A Thief’s End was released containing a painting that took images from Assassin’s Creed: Black Flag’s concept art. The-the one with the pirate. I gotta give credit where credit’s due here, guys That is incredibly on-brand dealing artwork to promote a game that has the word thief in the title. Very smart, very meta. Ubisoft wasn’t appreciating that level of meta-commentary though, and Sony was quick to pull the video and replace the asset. Oopsies like this also aren’t just limited to marketing materials and teasers either. Back in 2013 A graphic designer named Cameron Booth made a post announcing that he was effing furious with the fact that the game The Last of Us featured a map that he had made of the Boston Metro. First off, I’d like to point out that the last of us, just like Uncharted, is a naughty dog game I guess we know what the naughty is referring to in their name, but after what I assume was a swift apology and a fairly decent payoff Cameron quickly dialed back his language in a later public post saying, “It seems as if matters will be resolved to everyone’s satisfaction shortly.” Great, I’m so happy for you guys, money truly heals all wounds, But this case already starts to reveal some weird nuances of the copyright world because while the graphic designer who made the picture owns the copyright to his map and was Absolutely in his right to complain about the improper usage. He actually doesn’t have the copyright to the Boston Metro itself. Does that sound dumb? You bet it does! In fact it is so dumb that it can’t be anything other than real. Real world pieces Of architecture are subject to their own copyright. Just like one musician can’t copy the song of another musician So to an architect can’t copy the building design created by another architect. Things get even weirder though When you start thinking about what this means for pictures that people are taking in front of buildings those pictures Technically are violating copyright or at least they would be if it wasn’t for this idea of freedom of panorama You see, most countries have some law or General understanding in place that says you won’t get sued if you decide to create an Instagram story showing yourself posing in front of some famous landmarks notice though that I said most Countries most does not equal all case in point France France doesn’t have freedom of panorama. As a result, technically speaking You legally shouldn’t be able to post photographs of the Eiffel Tower But only the night photographs you see because the Eiffel Tower without lights was built in 1889 That one is old enough to have entered the public domain but the lights that go on at night were installed in 1985 thereby making this an artistic work with live copyright making posting photos of it illegal That means that anything you find in a regular Google image search Under Eiffel Tower at night was probably taken by fearless outlaws who are flouting the law Throwing caution to the wind and posting their tourist photos of Eiffel Tower in the evening Probably a bunch of developers at Naughty Dog being like “Whatever, we don’t care. We steal artwork all the time. We’re NaughtyDog, We’re dogs who are naughty.” So what does the Eiffel Tower have to do with FNAF fan art? well Obviously people are taking photos of the Eiffel Tower and aren’t getting thrown in Le Prizon Actually didn’t learn the word for prison when I took French, and that’s because these crazy laws don’t matter for people who are only using the image for personal consumption. You put an image on your fridge or you Slap it on the desk in your office. You’re fine. But the second you publish that image. It becomes a different story Just take a look at any stock image website like Getty Images which is a Business built on legally owning the rights to every image in their archive and you’ll notice that most of the images of the Eiffel Tower Even the ones with low light don’t feature the lights on the building turned on and this is where things get tricky As if they weren’t overly complicated enough you see if you publish a piece of artwork that features a character like Mangle, or Marrio or Mewtwo or heck, Elsa, and you don’t own the copyright to that character then Publishing that fan work is technically a copyright violation. Which merits a huge question: What counts as publishing? Now, obviously Publishing includes things like putting it in a book that ends up in Barnes&Noble but publishing actually has a much broader definition in the legal sense. Publishing in the broadest sense of the word just means causing something to become public or Making it publicly known. That means that everything from printing up and handing out a bunch of Flyers on the street You guessed it hosting it online Is covered. It doesn’t even matter if it’s a non-commercial type of posting. Posting fan art non-commercially on your blog or a site like tumblr or Instagram or Twitter all count as Publishing that image and if you’re thinking to yourself “WoW… That affects a lot of people…” Yeah, it does. You’re absolutely right. Technically speaking, every fan artist on tumblr and deviantART and Pinterest and pixiv and their own independent blog They are technically violating copyright every time they post a new sketch of an existing character That’s not transformative enough to be considered fair use I know, I know that sounds Unbelievable and that every fan artists out there is lighting their torch and rummaging for their proverbial pitchfork to come after me right now But first off don’t kill the messenger here, guys Legally, this is the truth based on the lawyers that I’ve spoken with and the legal papers that we’ve read That is the letter of the law But the letter is obviously only half the story Considering of course that the prisons across the country aren’t filled with Rainbow Dash fan artists and bendy bottlers Though it’d be pretty funny if they were. “What are you in for?” “Killed a guy. You?” “I drew a pink pony very accurately.” In actual practice the situation favors fan artists a lot more than you might first think. As you can see, pretty much everywhere on the Internet It’s really rare for copyright holders to try and enforce their copyright the only instances where you see this actually happen tend to be when a brand feels that The heart that’s being made really miss represents their IP One really convenient example of this in the gaming world is Blizzard. Who issued DMCA Takedowns across a bunch of different fan art in efforts to stop people from making ….How do I put this nicely? Renditions of overwatch characters in… Compromising situations loving each other just a bit too much for their liking for those of you who have the foreign tongue images of their characters in flagrante delicto in the carnal embrace tranquility Basically Blizzard wanted people to skip from rule 33 to rule 35 of the internet handbook, if you catch my drift And you can imagine just how effective Blizzard was at accomplishing that goal. Not that I would know personally It’s just doing research. For a friend. Anyway, according to the guidelines from blizzards policy on fan made creations They crackdown in order to quote: They also said: And I get that, right? It makes sense. Well, it might have been kind of a futile effort to remove Sexytime from the internet, legally speaking They’re entirely within their legal right to protect their brand but speaking of legal rights It is a two-way street Even though it company owns the rights to its characters You as the fan artist own the right to your individual piece of fan art. So going all the way back to our example of FNAF fan art Which there’s a lot out there if you drew a picture of Freddie and the cupcake, what are the actual rights for that image? Well, Scott Owens the copyright to the character, but you you own the copyright to that specific image So you can’t publish it you don’t own the rights to the character But Scott also can’t publish that image because he doesn’t have the rights to your artwork You are both caught, as it turns out, No one really has the rights to publish that image, unless of course you both agree to it, but good luck there. Scott doesn’t talk to anyone, Except for Dawko. Probably a secret son. I don’ know.. Talks to Dawko like all the time now what would have happened if Scott hadn’t owned up to his oopsie and the situation had actually escalated? What could the fan artist who created those character models have done to him? Turns out a very similar issue has come up and Was settled in a fairly famous case with the iconic Obama Hope image from that election artist of the famous Obama image Shepard Fairey who is actually one of my favorite street artists Created the artwork, but he copied the image from a photograph of Obama that he quote found on the Internet But it was owned by an independent photographer from The Associated Press in court the ruling was that the hope artwork Infringed on the copyright of the original photograph the original owner of the photograph now Participates in all money that’s earned by the rights to that image this is also the one case where I’ll actually Mention fair use because Shepard Fairey actually tried to make the argument that his work here was transformative But the court didn’t buy it. In fact, he almost went to jail or is the upshot of this whole thing Is that, in theory, If a legal fight like this one would have happened in Scotts’ case, It could have very easily landed both parties in court and it would have actually been pretty hard for Scott to win. Luckily none of that happened. And I think a lot of that is because Scott holds himself to a higher standard and wouldn’t have wanted to do a disservice to his fans, as he said in his apology, quote” Good on you, man. But there is another compelling reason for Scott to take that teaser down. Money. See, the other big complicating factor in all of this isn’t whether someone is really imprinted on their copyright But whether they’re actually making money while doing the infringing. In the United States criminal copyright laws Prohibit you from actually using someone else’s intellectual property for your own financial gain This means that when you post your fan art online if you’re not going to face any criminal liability. Fan artists, You are good to go. Sketchy nerd t-shirt companies that are selling unlicensed Nintendo merch, though? You might not be so safe. Stop, you violated the law! Pay the fine or serve your sentence. Likewise, if you’re selling your own posters of your fan art images Well that could land you in some legal hot water as well And I know that this is the most sensitive Subject around fan art because of all the commission that artists earn by doing fan art made-to-order for other members of their fan communities I’m not condemning anyone I’m not passing any sort of judgment on anyone elses online business as someone who uses a lot of online images of other people’s IP I’m kind of digging my own grave here as well. This whole topic just makes me uncomfortable Especially since that’s still not the end of this whole story There is still only a select couple of ways that you could actually be sued even if you did commercialize your fan art The company would need to show in court that your art had damaged their company in some way. Using the naughty overwatch picture example again, if I can. If Blizzard took the fan artists to court They would need to prove that somehow this adult-only Content had damaged their brand in some way. In their case, Blizzard is trying to market their game overwatch as a family-friendly experience for all players ages thirteen and over and so the brand may actually get hurt if the first thing that comes up when mom starts googling Arisa is a bunch of this Very family unfriendly images… How much, though? It’s actually hard to tell Well, it seems like they would actually have a good case It’s still really hard to quantify how much their brand would get hurt by stuff like this Which is blurry behind me for your safety I swear. “Your safety is my primary concern” And that’s a pretty clear-cut case here in most instances fan art doesn’t Compete with the official images from the game. So what does all of this mean for you, the fan artist? Well, it means that you probably don’t have to worry about getting sued and even if you are getting close to getting sued You’re probably gonna know that you’re doing something wrong long before anything happens. Like in 2015 The Pokemon company went after a cafe that ran a Pokemon party unofficially at PAX That promoted itself using Pikachu posters in charge an entry fee or and in another case a woman was threatened legal action from 20th Century Fox because she was selling a Firefly themed Hat on her XE store. So, long story short, just don’t charge admission to your next Pokemon themed birthday party and leave the Firefly apparel for Hot Topic. But to bring it all the way back around to FNAF one last time, well, Scott doesn’t stand to gain a whole lot by suing his fans over their creations He does stand to lose a whole lot if he uses a fan-made Model in the box art for a VR game that is for profit and could potentially make millions of dollars. See, if he kept those fan models in his box art it would in theory open him up to a much bigger Legal problem where he might have to pay thousands or even tens of thousands of dollars in royalties Simply for using those two pieces of artwork. So, Scot’ts decision to take down The teaser image was certainly the right thing to do from a moral perspective Buuut, it’s also the correct thing to do from a business perspective, I mean, don’t get me wrong Scott is all about giving back to the FNAF community. But maybe he’s not interested in giving THAT much back But hey, that’s just a theory, and certainly not legal advice. Consider this your official legal disclaimer that I am NOT a lawyer Even though we talked to a lot of lawyers for this episode and if you get yourself into hot water for making your distributing fan Art, you can use this video as an interesting talking piece with your legal counsel But don’t assume that I, Matpat, will be standing up for you in court as your legal defense. “Here, Watch this YouTube video about for FNAF art?” No, it’s not really gonna work. Okay? okay. Keep farting it up out there guys. And remember, that is just a theory, A GAME THEORY. Thanks for watching !