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I'm currently working on building a video game related website, and I'm wondering if it's legal to use screenshots or concept art that game studios post on their official sites. At most I would want to crop these images to create links with.

I see other sites like IGN, Gamespot, etc doing this at length, but I'm wondering if they have to have permission.

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5 Answers

Without being a lawyer and/or reading their ToC's, I would imagine that if you added a Copyright notice to the images in either the title or alt elements then that would be ok.

Better still, why not contact the marketing departments of the companies involved and ask? You might even get more out of it like access to their press packs, added to a press mailing list etc.

I did this for one of my sites related to Land Rovers and now have access to the media section of their site which is great for the latest news, press photographs etc, all free and available for me to add to my site.

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+1 It really helps to have a contact in a marketing department. They can give you interviews, and provide you with press releases, and help your site out a lot. –  Christofian May 22 '11 at 20:44
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I could quote and link to the countless pages and pages that go on and on about copyright laws in regards to digital media (I found this very page while looking into laws about screenshots). (Strange how nobody seems to be a lawyer on the Internet.) However those are easy enough to find and moreover, most of them just reiterate and copy-paste the same basic information about fair-use and general requirements and usually end up vague and essentially say that it depends on the specific circumstances.

Instead, I’ll explain what is likely (based on what you have mentioned) to be the case in your situation.

GameSpot (which like TV.com is owned by CBS) makes a point of blocking the posting of any images for which written permission is not obtained, but then again, it is big site, generating revenue.

No sane person would expect for no fan-sites to be made of their product or even to expect that all fan-sites pay for permission to exist. Further, no rational person would expect a fan-site to use only plain text for everything. They may expect you to create your own images, but that is extremely unlikely since anybody that foolish would likely just end up being the kind of person to sue for plagiarism of their images and even for using the names and stories they created.

As such, it is expected that fan-sites would use images of the game/show/etc., but of course, within reason. In your case, using cropped images for avatars or links is highly unlikely to draw the ire of anyone, especially since it is still a small site in the making. It would not likely be impinging on any of their rights or costing them current or future monies, so they would not care and in fact probably be happy for the added exposure.

If your site manages to become huge (think Facebook), then they may try to demand money for permission to use images of their games (i.e., to make the site at all). Of course if that were the case, then you would likely have the money and staff to do so, so no worries.

But even if your site becomes very successful, it is more likely that they will instead just demand that you get written permission and credit them for the pictures (e.g., a copyright or permission notice, link, etc.) Of course you can already implement attribution on your own up front; that way they may not even demand you obtain written permission since you have already provided them with the credit they expect.

Also, don’t forget that because you are presumably dealing with multiple games, you will thus (potentially) be dealing with multiple companies/law-firms, which means that they will probably react differently. Most will probably leave you alone, and the few that bother you can probably be easily dealt with in several different ways (gaining permission, replacing them, or in an extreme case, removing them altogether—and maybe adding a punitive message as to why that game is not included.)

(I never really understood attribution/credit in this regard since nobody is going to think that the authors of the blog are the ones who created the game/movie/etc. in question. Anybody who visits fan-sites is going to know who the author of the original work is. Duh. They may however like a link since links are one of the currencies of the Internet.)

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Case in point, look at Perfect 10, Inc. v. Google Inc. P10 could not prove secondary infringement on the grounds that Google’s thumbnails (made by modifying P10’s original images) could directly or even vicariously contribute to infringement even though it is entirely conceivable that Google’s images could allow a user to find sites that pirate P10’s images. As for direct infringement, P10 barely won on the grounds of derivative works. In your case, you would likely win that too. –  Synetech Dec 30 '12 at 15:19
    
Nice first post! Welcome to Pro Webmasters! –  John Conde Dec 30 '12 at 15:33
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If you take a screenshot yourself, then you own the copyrights to that image. Just as, if you took a photo of the dashboard in your car, or just took a picture of your car, it's your photo to do with as you wish. The car company may have IP rights to the design of the car, but the photo is a separate creative work.

If you want to use screenshots taken by others or concept art published by the game company, then that's a different matter. Some of these may be intended for redistribution similarly to publicity photos. If you receive them in part of a press kit or are otherwise given notice that you can redistribute them, then that's obviously fine to do. Otherwise, you'll have to be prepared to defend your usage as fair use, which is very vaguely defined in U.S. law.

The way Wikipedia and other publishers try to stay within fair use is by reducing the image resolution. However, the Wikipedia community is often over-cautious, and they pretty much forbid posting copyrighted images that are above thumbnail resolution. This makes the images pretty useless much of the time.

But you can also modify the images in other ways to create a derivative work and make it fair use. The more modifications you make, or the smaller the portion of the derivative work that's based on the original, the better your chances of it being deemed fair use.

However, when you're dealing with "fair use", there are no guarantees—even if it seems like common sense or if in a past case your usage would have been upheld. You still always run a risk as there are no objective standards by which fair use is measured/judged. Such is the legal landscape we live in. This is one of the major criticisms leveled against our copyright laws. In fact, when it comes to IP law, many companies will threaten litigation even when they have no legal basis for a claim (such as preventing perfectly legal uses of trademarks or sending DMCA takedown notices for works they don't even own the copyrights to). It's a case of might makes right. As even if you're legally in the right, a wealthy opponent can still bankrupt you through a long and drawn out trial.

So if you're running a high profile site like Gamespot or IGN, it makes sense to just completely avoid using copyrighted artwork that you haven't licensed from the owner. Though if you're a smaller site—particularly a non-commercial site (another factor in fair use determinations)—you're probably safe realistically speaking if you stay within the bounds exercised by other similar sites.

TLDR version:

Fair use is a legal grey area, but these are the general factors:

  • Are you deriving commercial gain from the copyrighted work? If you run a fan site, that's less risky than running a commercial game review site.
  • What percentage of the derivative work is the same as the original unmodified work? Making a collage from 5 different images is going to be safer than making a collage of 2 different images.
  • What percentage of the original work is used in the derivative work? If you just crop out the head of a character, then that's going to be safer than if you used 90% of the original image. Shrinking the image also increases your chances of defending it as fair use.
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IANAL but the copyright law has provisions that allow people to use copyrighted content, it's called Fair use.

Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

  1. If you're not trying to make a profit, item 1 works in your favor.
  2. This seems to apply to facted based information. You can not copy right facts of a news story, anyone can reprint those facts. This doesn't apply here since we're talking about art.
  3. When using a cropped or scaled down version of the image, item 3 is in your favor.
  4. Are you taking business away from them by using this copyrighted material? If you were creating a competing game and used their graphics for that game, they would argue that you're taking away their business with use of those graphics.

You also seem to fall into this provision that allows permission: "criticism, comment, news reporting".

BTW, notice that there's no requirement in "Fair use" to give an attribution to the author. It's nice to do but makes no difference legally.

Overall, I'd say you're safe to use their graphics under Fair use copyright provision. If you want, you can also contact their media division or look for a media kit on their website. They'll probably be happy to provide you with high quality images and other goodies you might find useful.

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Officially 99% of the game art are protected by copyright, only some medias packs/press packs are totally open. Game studios "allow/tolerate" the use of their visual element as long as it's in respect of the game and/or author.

I.e : A site laughing at WoW could have some problem but a ressource site about raiding probably won't be bothered.

Edit : Also, I am not a lawyer but a gamer who visit a lot of gaming website and also own 1

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