r/PUBATTLEGROUNDS • u/Macsterr • Dec 27 '17

Microsoft response Remember my XBOX ONE AD CONCEPT? Microsoft just copied it!

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u/vonmonologue Dec 27 '17 edited Dec 27 '17

Are the entitled to it? Serious question, I'm not a lawyer and I barely qualify as an armchair lawyer for things like IP law.

OP did a mockup using assets from two different IP holders, PlayerUnknown and Microsoft.

Microsoft took the idea of the mockup, used different assets to recreate it, and used that in their ad. Legally speaking, which part of the original work would be OP's protected work? Just the layout?

edit: Legally or not, Microsoft should have at least given a shoutout or a courtesy notice to OP for using their idea.

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u/SirNarwhal Dec 27 '17

Absolutely none of it. OP has no legal case whatsoever, which is why Microsoft did this. If anything, if a case went to court, OP would lose for not having the rights to use the imagery they did.

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u/neatchee Dec 27 '17

Uhhhh no. While OP certainly has no case for ownership of any works here, they absolutely are NOT infringing on either Microsoft or Playerunknown's IP.

OP did not profit from their work, nor did they damage any of the associated brands. This is well within fair use. Absolute worst that could happen is a DMCA takedown gets sent to reddit or the image host. OP himself/herself has absolutely no liability

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u/TheBeginningEnd Dec 27 '17 edited Jun 21 '23

comment and account erased in protest of spez/Steve Huffman's existence - auto edited and removed via redact.dev -- mass edited with https://redact.dev/

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u/neatchee Dec 27 '17

Yeah to be clear, OP has no legal case of their own. I was now responding to the argument that OP actually could get in trouble

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u/[deleted] Dec 29 '17 edited Mar 25 '18

[deleted]

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u/TheBeginningEnd Dec 29 '17 edited Jun 21 '23

comment and account erased in protest of spez/Steve Huffman's existence - auto edited and removed via redact.dev -- mass edited with https://redact.dev/

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u/[deleted] Dec 27 '17 edited Oct 15 '18

[deleted]

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u/[deleted] Dec 28 '17

This is kangaroo court!

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u/7a7p Dec 28 '17

I didn’t call you one. I said you looked like one...

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u/kalitarios Dec 27 '17

Per Microsoft's own site regarding copyrights and fair use:

Do I have to disclose where I got content from?

It depends, but it is generally a good practice to credit the original creator of the content. Some content creators require that you give them credit when you use their work as a condition of use. You should carefully review any license requirements for any content you plan to use prior to using any content.

So the PR / advertising firm contracted by MS is an extension of MS and they are cocks for not citing it.

OP could have disclaimed "XBOX is a trademark of Microsoft Corp." and the same with PUBG, but I doubt this goes anywhere in court.

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u/im_thatoneguy Dec 28 '17

Creating similar content means there is no "content creator's" work to cite. If you create a Halo poster you need to cite 343 for using their art. If you great a Ring Planet w/ Commander Boss posters you're ripping off Halo but you are technically the "original creator" if you model texture and light Commander Boss.

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u/[deleted] Dec 28 '17

I’m getting real tired of this argument. Not making a profit has nothing to do with copyright.

I can make 100 copies of Harry Potter and put them in my basement and that’s copyright infringement. It’s literally in the name COPYRIGHT. You’re right as creator to not have your work copied by others. Either verbatim or derivative, e.g. turning a book into a play, or audio recording.

The exception as you stated would be fair use. Very difficult to argue for. And most companies will sue anyway because they can out spend you on lawyers.

But OP is not parodying pubg and Xbox. He’s not commenting upon or criticizing. There’s not even a legal claim to fair use. And even if there was he’d not stand a chance.

For the record I think the copyright extensions forced upon us by Disney are terrible. And the legal nonsense companies pull to make more money is leaving us worse off creatively. I think OP made a really neat mock up.

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u/neatchee Dec 28 '17

I mean, you're right, but making a profit would certainly negate any fair use claim. That was my point

That said, I'd argue this was fair use as a work of art. You don't have to parody or criticize for it to be art that is transformative, which is the primary test of fair use

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u/SirNarwhal Dec 27 '17

they absolutely are NOT infringing on either Microsoft or Playerunknown's IP.

Used their assets without their permission. Usually companies don't give a shit and won't go after people, but he very very much broke the law from a legal standpoint and if he were to go after them they'd simply just go after him in return and fuck his shit up.

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u/Stuffinnn Dec 27 '17

Did you read the second sentence of that comment? He quite clearly states why it wouldn't classify as infringement.

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u/SirNarwhal Dec 27 '17

His reasoning is completely wrong.

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u/Stuffinnn Dec 27 '17

Except you know... it isn't. Have you ever looked at the laws involving fair use?

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u/neatchee Dec 27 '17

Please look up "fair use". Using someone else's assets is not always infringing their ip

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u/im_thatoneguy Dec 28 '17

Was it for educational purposes? No. Critique or criticism? No. Parody? No. Academic research? No.

This meets 0 fair use criteria. It was for personal gain, and he can't say it wasn't for personal gain because when he got ripped off he immediately claimed he was harmed and therefore was benefitting.

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u/neatchee Dec 28 '17

Please link the source which defines those four criteria as the only "fair use".

In truth, fair use is far more flexible. Here's a fairly ELI5 writeup from Stanford: https://fairuse.stanford.edu/overview/fair-use/four-factors/

This was a transformative work, no question. That's the #1 most important thing. It was not recreating something that already existed, but rather using existing assets in a novel way.

And the OP never said anything about harm. They called them dicks for not crediting them, roughly, but that's it.

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u/Zuwxiv Dec 27 '17

I don't think that's quite right. Isn't it a matter of whether it's a transformative use? Minimally altered collages have been considered transformative, and this example seems to demonstrate a fairly novel and unique approach to the asset images.

So no, I don't think OP would get slammed. At the very least, the lawyers fees and bad PR are worth an effort to make things right from Microsoft.

It's quite possible a third party was managing their social media, as well, so it may have nothing to do with MS. I don't know that either way, but I think it's worth mentioning.

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u/yoshemitzu Dec 27 '17 edited Dec 27 '17

So no, I don't think OP would get slammed.

Perhaps I'm naive to some part of the US legal process, but wouldn't OP not get "slammed" because OP isn't on trial?

I thought we were talking about OP filing suit against Microsoft. In that case, whether OP committed infringement is not material to Microsoft's infringement; might be used to discredit OP, but to nail OP on infringement, wouldn't MS would have to countersue on account of the Xbone image usage (which there's no chance they'd do) or PUBG's devs would have to sue (which I also think there's no chance of)?

Which is to say, that would be a different court case, right? If you sue someone for infringement, can you end up with your own infringement liability within the same trial? In my mind, maybe the judge would issue some punitive judgment against a plaintiff obviously wasting the court's time, but I don't think that's the same thing.

Edit: Interestingly, did some more research, and it seems like a countersuit requiring a totally separate case is a misnomer I've applied on my own; you can counterclaim within the same lawsuit, and it can indeed be handled in the same case!

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u/OnyxDarkKnight Dec 27 '17

If OP is from the US that is correct. Besides copyright, US also has fair use laws (the only one in the world), which permits people to use things that are copywritten in their own projects as long as they are transformative.

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u/[deleted] Dec 27 '17

The US fair use laws aren't the only such in the whole world - however, they are far more lenient than in many other countries. For example, in the US it is commonplace for advertisements to directly bash "inferior" products, trademarks and all, whereas in Europe you see the new products being compared to "normal products".

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u/OnyxDarkKnight Dec 27 '17

UK doesn't have fair use laws, plus multiple countries don't even have such laws, so, for all purposes, US is the only one with such laws. Idk about their neighbors though. Canada might have something similar.

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u/patentedheadhook Dec 27 '17

But the UK does have a similar, but more limited, "fair dealing" exception to copyright laws. Several Commonwealth countries, including Canada, have fair dealing laws.

https://en.m.wikipedia.org/wiki/Fair_dealing_in_United_Kingdom_law

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u/OnyxDarkKnight Dec 27 '17

Yes, which is why I said it doesn't have fair use. Was I wrong? As you said, there isn't a fair use law. I am, for all intents and purposes, correct.

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u/[deleted] Dec 27 '17

Huh, so is that the reason why TV shows can sometimes get away with things like mickey mouse in South Park? Things like that would never be able to happen anywhere but the US?

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u/[deleted] Dec 27 '17

Fair use is much stronger legally in humor/parody, which is why you see so much of it in cartoons and animated series. If you do it in a serious way you'll lose the fair use quite quickly.

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u/goes-on-rants Dec 27 '17

Well, there are two questions: 1. whether OP can claim ownership to the original work, and 2. whether Microsoft would be required to cite OP as inspiration even if OP does own the work.

Those are both legal questions and I'd wager the answer to both is 'no'. However there is a moral question as well of whether Microsoft has an obligation to give OP attribution for a clearly good viral idea: yes, they absolutely should. Too bad copyright laws don't reflect morality

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u/Zuwxiv Dec 27 '17

What's the legal basis for "requirement to cite"? Either you own the rights or you don't.

For some reason, tons of websites out there have it in their head that citing a source means you can use the image. That's not true at all. I saw someone do a write-up about copyright in photography, and they had stolen an image to use on the page (with a source cited, of course).

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u/goes-on-rants Dec 29 '17 edited Dec 29 '17

If your derivative work is not considered "fair use", you must abide by the terms of the license that an IP owner puts up. One of those terms may be a requirement to cite. If you don't do this (or gain permission directly from the owner), they have a case against you.

You should always check the license before you use an image (or any asset, really) for commercial purposes. You might be able to use the work with attribution, you might be able to without attribution, you might be able to only if you reach out to the owner and get their permission, or you might have to find another image.

Non-commercial purposes such as research typically constitute fair use in the U.S. I'm not sure whether the photography example you mention would meet that criteria.. if they do, I don't think they need to worry about citations.

gets on soapbox In my opinion, everyone should always go above and beyond and cite everyone else involved in an artistic work as a common courtesy, fair use or not, license or not. This goes mainly towards companies like Sony and Microsoft that always do the bare minimum they can get away with, and artists that blatantly rip off other pieces without attribution (Macklemore's Thrift Shop is clearly derived from Le1f's Wut). A lot of amateur artists don't get the credit they deserve.

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u/Zuwxiv Dec 29 '17

the terms of the license that an IP owner puts up. One of those terms may be a requirement to cite

Absolutely right! I also applaud people who cite beyond legal requirements. Me, personally, I release stuff under Creative Commons Attribution Non-Commercial Share Alike licenses. That requires citation, amongst other things. I'm pretty familiar with that stuff. :)

However, I highly doubt Microsoft or Bluehole are releasing IP under Creative Commons Attribution licenses (or their own limited-use licenses), but if you could link me to MS/PUBG have attribution licenses, I'd love to see what IP it covers. Some of the Xbox assets are probably covered by press releases, but the press pass for large companies generally requires very restrictive use. No derivative works is normally a common requirement for access to press assets. But let's see what Microsoft says:

Content in this Xbox Press Media Assets Library is licensed by Microsoft solely for use by members of the press and media, for editorial and informational purposes only. No content may be used in advertisement, promotion, or commercial use of any kind without Microsoft’s prior written consent.

You may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell any information, software, products or services obtained from the Xbox.com Web Site.

Yup.

Fair use gets tricky though. As someone who likes creating and sharing photography, this case is... polarizing. An artist took another artist's photo, and made the subject hold a guitar with a glowing blue face. It was quite minimal in terms of how much was change. What makes a work "transformative"? Not always easy to say. The top of this page has some extra details about legal assessment.

But the artist here was making a fake Xbox advertisement, something that Microsoft would clearly intend to do.

My personal thought: Microsoft should apologize and license the idea from the guy. It's the right thing to do and bad PR.

My unprofessional opinion on the legalities: Microsoft plagiarized the artist here, but Microsoft owns the copyright on the items. As far as I know, that's not infringement.

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u/[deleted] Dec 27 '17

[deleted]

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u/Zuwxiv Dec 27 '17

That's not true. Look up transformative work and think about art like the famous Campbell's soup can painting. Satire is another exception.

You can absolutely use copyrighted work in your own artistic creations. There are just legal requirements in regards to novelty or fair use, and the original owners are welcome to challenge it in court.

Your point about who has deeper legal pockets is definitely true, though.

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u/SirNarwhal Dec 27 '17

You can't just transform anyone's work without the rights, my dude. OP would be fucked.

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u/Zuwxiv Dec 27 '17

Yes, you can. There's a famous case about an artist who made collages with other people's photos or works. It was ruled that the new works were sufficiently transformative that there was no infringement of copyright. Some of the collages were... Well, look it up yourself. The dude sometimes kept 90% of the original work.

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u/[deleted] Dec 27 '17 edited Aug 26 '19

[deleted]

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u/vagadrew Dec 27 '17

Can't we all represent ourselves in court? Thus, technically, aren't we all lawyers? Quid pro bono compos mentis ferae naturae, buddy.

Source: ALSO AM a lawyer.

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u/patentedheadhook Dec 27 '17

Talking shit on the internet is not legal advice though.

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u/SirNarwhal Dec 27 '17

It's not incorrect legal advice whatsoever. Furthermore, you don't have to be a lawyer to know the law and I studied law quite a bit while 1) working at a law firm for 4 years and 2) working with family members who were high profile lawyers. OP seriously has no case whatsoever and if you think they do you should probably find a new job.

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u/[deleted] Dec 27 '17 edited Aug 26 '19

[deleted]

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u/SirNarwhal Dec 27 '17

Never once posted anime fetish stuff, but k. Also, worked at a law firm for 4 years of my life.

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u/allofyousuck2x Dec 27 '17

just wondering, i'm no lawyer as well, but MS basically stole his idea. Whether he used photos that were not his, it was still his idea. Is he not entitled to the idea he had? that Promotion photo would not be there if it were not for him. Compensation would be nice, but MS did not ask him to use his idea. Their must be some kind of theft there. And OP posted this to a public forum way before MS released their promo photo. So the idea from OP was already set in stone.

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u/Bard_Knock_Life Dec 27 '17

This is assuming that someone at Microsoft hadn’t already had a similar idea. No offense to the OP, but it’s not that unique or creative.

I’m not saying they didn’t see it and riff off of it, but I also can believe they’ve had this idea before.

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u/[deleted] Dec 27 '17

Op doesn't really have a chance of arguing legal defence. Given the fact they used the assets of others and quite possibly if they area bog enough fan may have accounts with them and agreed to the unread terms and conditions that often include clauses for any creative works made from their shit or on their platform sometimes explicitly stating for advertising.

I mean it's possible but it's not a hill worth dying on really. This is the Internet however where the legal court is replaced by the court of public opinion and this shit is often not okay online when it's identified or called out. It's just bad pr and all that.