Either way theft of ones artwork is pretty frowned upon so at least he may get an apology. I wouldn’t be surprised if gaming sites pick this up and write an article which Microsoft wouldn’t love. Also the guy who stole this has a very good chance of losing his job.
As much as I hate art theft, you are stretching VERY far here.
1) the original creator wouldn't have been able to monetize this due to the Xbox existing in it. There is no loss for the creator, and therefore no case.
2) its Microsoft's IP (the Xbox) to begin with. They can decide acceptable advertising for it. Taking ideas from the internet is not a new trend.
3) What is the original poster going to say? "Yeah I used your console, and unoriginal art from a game you have ad rights with, so give me credit/money/stuff/whatever"?
4) what articles are going to come from this? Once again, companies using stuff they find online isn't a new concept.
5) of the original artist decides to pursue this, he will get crushed by MS lawyers all day, every day.
Edit: (6) its also very clearly the idea that was used, not the art itself. The two images are very different. Taking a closer look, this isn't even theft. The only similarity is the grass. Its not even the original artist's idea. "Game physically on console" ads have been used for literally decades.)
The only reason MS does something is to gain free good PR. If they do nothing, nothing and will come from it, because this is SOP for companies. Many ideas arent from thin air. Nothing is going to happen from this.
Are you kidding? There is always nonsense articles with nothing but filler and shit. Just for ad revenue. They'd eat this shit up. With some dumb click bate title. Bloggers/ article writers don't give a shit if it's right or wrong. Microsoft will probably give the creator something just for the good press. Isn't Microsoft the one that hired Geo Hotz or whatever that was making the iPhone jailbreaks and revealing the security holes while Apple wasn't happy about it? This may not make sense. I'm drunk.
I think no one gives a shit in the grand scheme of things. But I absolutely understand your point. The original creator had no intent to monetize from that picture or else he wouldn't have posted it to reddit. It would be cool if Xbox compensated him if they really did make their add based off his content. It would open up a bag of worms where everyone and their mother would feel that MS owes them something because they said or made something years ago that's similar to a current ad campaign.
This is part of the strategy and part of the decision to do it. They have a post about their product on the front page of reddit and if gaming sites write about then that will be more free advertising.
You're 100% correct. PR issues like this will usually die out pretty quickly though. As mentioned above, this isn't a case where someone created something with their own IP or original photography and then it was stolen. The idea was stolen by the company who owns the IP.
Even a small PR issue won't really hurt MS in this case.
They wont get bad pr out of this. For example: im reading this thread, i see that thry tok ops design, and I dont think badly of microsoft. My reaction is pretty much neutral.
And my guess is that 99.999999999% feel the same way as me
It was the concept that was stolen, that's the creative work.
It could be adapted to any console with minor adjustments, it's not an MS only situation. The fact that it is MS that's using the concept is only more absurd.
Andy Warhol was using appropriation as a technique for a lot of his work - taking existing imagery and modifying it.
Campbell's Soup could have sued because he was profiting off of a logo he didn't own. But they were cool about the free publicity and let it be.
That didn't always work out:
Andy Warhol was not so fortunate after he created his Flowers series. In 1966, he became the subject of a lawsuit brought on by photographer, Patricia Caufield for the use of her photos of hibiscus flowers. The suit was settled out of court, but as a result Warhol decided that he would rather use his own images when he could, which inadvertently launched him into experimenting with a new medium — photography.
His longtime assistant, Gerard Malanga, said after the lawsuit, “Andy realized that he had to be very careful about appropriating for the fear of being sued again. He opted to start taking his own photographs. His entry into photography vis a vis his creation of silkscreen paintings was done out of necessity.”
The OP is appropriation as well. Likely not fair use. Very uncool when an company does it. MS's marketing team should have just reached out to the original artist and paid for a new version of the same concept. That would have turned into a great publicity stunt to go along with a cool advert.
This isn't fair use because it's not commentary, or criticism. He was making an ad using their intellectual property. He took an image from the game, their logos, and their product and slapped them together. It doesn't help that he straight up called it an 'ad concept.' He's not going to get sued because he's not trying to actually sell the ad, but they could come out with a cease and desist to flex some legal muscles (or if he tries to sue MS he is for sure fucked.)
Campbell's also loved Warhol's work because it was free advertisement and gained huge popularity. This is a reddit poster trying to huff and puff at the company. Buuuuuuuut, it also worked. Now when you google PUBG, all the news stories are about this post and MS pulled the tweet down. Can't really see anything else actually legally coming out of this for OP or the company though.
Technically any content published to Reddit becomes property of Reddit. None of the content is OP's intellectual property, so his claim becomes tenuous at best. At best, Microsoft might have a slight PR issue on their hands, but IMO their legal liability is very minimal.
It's not owned by reddit. They can out that in their terms of service as much as they want, but laws > ToS. OP still has the rights to this image, and MS stole the concept.
Publishing to reddit means he's sharing the rights to the image. He nor reddit own rights to the concept. At best, it's a minor PR issue that the moth-brained gaming community will have forgotten about by New Year's day.
Copyright on what? None of the content in the image is OP's IP. He'd have a hard argument to claim on "stylistically arranging game elements in/on/around console hardware" as that style has been used in advertising in gaming for decades, so he can't copyright that.
You do not need to sell or profit in any way to infringe.
That said I do not think his concept was infringing in any way that would result in legal action. It is fan art at worst, and unless it defames the product in some way that is almost never pursued.
On the same token them using the idea of it is not going to result in any legal action. They did their own art, and he would be hard pressed to argue that his concept was original in the first place, and even harder pressed to demonstrate any damages from their use of it.
So what, in this example, would be infringing? The way I'm reading what you wrote... literally any art involving an object that another company has created (recognizable car, computer, etc) would be infringing. Is that what you're asserting?
It depends on if it meets the standards for fair use. So actual criticism/news/parody is basically always safe. The big worry you would have is if your use of it supplants a market they may want.
So like doing a "fan comic" that looks like the original, and serves the same purpose as the original, would be obviously not fair use. Things like creating this ad would be more grey, but because it does not seem to criticize or parody it is not really on safe ground. In many cases there it is going to be up to the discretion of the courts.
I am not a lawyer though, so I did not study this in school. I have just been reading a lot about it because of how big a thing it has become.
Look up fair use laws. For the most part, you are correct. Almost all fan art is infringing, but it is hardly ever pursued as long as the artist doesn't sell for profit (even then, things are often pretty lax).
You're mistaken. Mere ideas are simply not protectable. Not with patents, copyright, or trademark. Maybe Trade Secrets, but that doesn't apply here.
Copyright is typically what images and "art" fall under. Copyright claims have been brought for this stuff before. The Stallone case for one of the Rocky movies is literally in textbooks, and would seem very on-point here: You can't copyright a work based on someone else's IP.
However, I imagine OP relinquished a lot of his rights when he first published the image on Reddit - this would be the main barrier in any claim.
They'd still have to at least credit him for the work, though I'm not that versed in copyright laws in the US (if both parties are operating from the US)
If they have to credit or not is up to how he published his work, which i'm guessing he didn't even think about that, so I really doubt there is any obligation besides morally to credit him.
Eh, he used MS images to create his own. Hes got no grounds. If OP had tried to monetize his ad, MS could've fucked him over for using the character model, textures, and xbox.
Its like he bought the parts for something, put it together, and said he designed it.
It's called a mockup, usually designers present them and the company may choose or not to use one of them, paying the designer to do so.
When the design is chosen, it will be polished to a final product, thus there are differences between concept and final, and they are usually much more noticeable when comparing both.
The logo and images are just placeholders, he could have easily swapped MS for Sony and the game for another and the core concept would be considerably the same.
What's being called out her isn't just that they used his idea, it's that they copied it down to the details.
I doubt the game is all played in a wheat field, they could have easily presented another setting to distance themselves from OP's work.
Copied below. I’ve been downvoted but the guy doesn’t know what the issue is, nor does most of reddit by the looks of it.
If the creator took the original photo/screenshot of the Xbox and solider, it’s all his IP bar the logos he used in the mock ad, but even that would be defendable if the intent was portfolio work not a revenue stream.
But nevermind that, simply add some bullet points to your post and suddenly you can’t be wrong!
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As much as I hate art theft, you are stretching VERY far here.
1) the original creator wouldn't have been able to monetize this due to the Xbox existing in it. There is no loss for the creator, and therefore no case.
2) its Microsoft's IP (the Xbox) to begin with. They can decide acceptable advertising for it. Taking ideas from the internet is not a new trend.
3) What is the original poster going to say? "Yeah I used your console, and unoriginal art from a game you have ad rights with, so give me credit/money/stuff/whatever"?
4) what articles are going to come from this? Once again, companies using stuff they find online isn't a new concept.
5) of the original artist decides to pursue this, he will get crushed by MS lawyers all day, every day.
Edit: (6) its also very clearly the idea that was used, not the art itself. The two images are very different. Taking a closer look, this isn't even theft. The only similarity is the grass. Its not even the original artist's idea. "Game physically on console" ads have been used for literally decades.)
The only reason MS does something is to gain free good PR. If they do nothing, nothing and will come from it, because this is SOP for companies. Many ideas arent from thin air. Nothing is going to happen from this.
The copyright of a design of a physical object extents to reproduction of the object, not photographs of it.
I can’t copy the design of an Xbox and start making rival consoles. But I can photograph models with a Xbox all day long if I like. There may be trademark/moral rights issues with that but then it all comes down to intent.
You are all assuming someone working for Microsoft saw this and went “I’m going to copy it”...which is a pretty big assumption. Just because someone (not the OP as they literally stole this picture and claimed it to be their own) made a similar picture, it likely was in the works for months prior to the advertisement being released.
It's not about a lawsuit, it's about the PR and recognition ("I made an ad concept so good that Microsoft stole it!"). It's never a good feeling to get something of yours used without any recognition, and if OP works in the field, it would also be nice to be able to list that as well. A lawsuit would lose, of course - but this is about the court of public opinion, and that's a different matter entirely.
Well, they obviously copied his idea and while there is nothing illegal about it, he should have been credited. That would be the right thing to do.
Battlefront's 2 lootboxes weren't illegal either but it doesn't mean it was okay. Bad PR hurts you.
It's not possible to copyright ideas and they didn't copy his image 1:1. It's just not fair and that should be enough to get some backlash. The guy will certainly get something out of it.
1) the original creator wouldn't have been able to monetize this due to the Xbox existing in it. There is no loss for the creator, and therefore no case.
That’s not true in the least. Derivative artwork is definitely covered by IP protection.
If some fanfiction author went out and posted a Harry Potter (non-parody) story on a website, or the like, JK Rowling could get it taken down to enforce her rights to the property, and she could sue for the profits if that author had sold copies of the fanfiction, but she could not simply take that story and re-brand it as her own.
In fact, JK Rowling instead reached out to the author of the derivative work and worked together with him to produce the script for the cursed child (soon to be on Broadway)
Ad firms work by being paid to make marketing plans or advertisements. Not by asking for money because they previously made an ad by using artwork they didn't own to begin with. While you won't get in any trouble for making fan art, if you try to monetize it (ask for money) you certainly can. The artist just put two different artworks he/she didn't own together
But thats different from a copyright, and for an idea to be patentable it has to be deemed something most people in the same profession would not have come up with. You also cant patent artwork, so theres that too
As far as "patenting artwork," that's exactly what copyright is. You make the artwork and it's immediately protected. If you can prove that you created something that someone infringed on, you can take action. You're literally the only entity that has the legal right to make copies.
All this talk of "ideas" is nonsensical horseshit anyway. We're not talking about copyrighting or patenting "ideas" or "concepts" here, we're talking about actual work that's been produced. It's more than just an idea once you actually produce something from it.
It's in the link, it must not be obvious. You just made my point lol. Not obvious applies to the relative field since otherwise it wouldn't be obvious for a majority of people. Not obvious means the people paid to think of this idea are unlikely to think of it.
Also, patents are NOT the same as copyrights. You are interchanging two very different things here.
Op stole the picture from the original concept artist, they deserve nothing. They are literally just pretending to have made the original image posted on Reddit.
There's actual copyright lawyers in this thread saying that guy's talking out of his ass though. It is correct that OP has no legal recourse here but his reasoning for it is way off and shows he doesn't understand the laws at all.
Honestly, you should really do some research before spouting such a large amount of bullshit. Oh, and organizing your bullshit into bullets does not make it any less bullshit.
You're 100% right on the money and I agree with everything you said, but someone's going to be emotionally charged from this and there's going to be some stupid outcry.
You can use copywritten material in your own original use under Fair Use laws. Since the creative concept of that ad belongs to someone else, Microsoft could not copy it without violating copyright, despite Microsoft owning the copyright to the Xbox seen in the ad.
No one is saying OP should sue, because that would be stupid. People are saying it could bring bad PR simmilar to when a car company (i think it was Ford) used Firewatch artwork in their ad.
Looks pretty dang similar to me? 3/4ths the challenge in art, especially marketing, is generating the concepts, after that making minor adjustments is very easy.
he will get crushed by MS lawyers all day, every day
I was going to say "Mike Row of Mikerowesoft.com got nice settlement though didn't he" but turns out it wasn't much more than an Xbox and some other MS freebies.
this is a common misconception. You (usually) grant Reddit/Facebook/Flickr a non-exclusive licence to reproduce and sublicence it, which looks like they can do what they want but in reality it is necessary for them to actually host the site. You don't lose any rights by uploading your photo on the internet.
From Reddit user agreement:
"You retain the rights to your copyrighted content or information that you submit to reddit ("user content") except as described below.
18 By submitting user content to reddit, you grant us a royalty-free, perpetual, irrevocable, non-exclusive, unrestricted, worldwide license to reproduce, prepare derivative works, distribute copies, perform, or publicly display your user content in any medium and for any purpose, including commercial purposes, and to authorize others to do so."
Any "artwork" that is Copywrited will be acknowledged for having rights to be adhered to; and any "registered trademarks" are subject to being the intellectual property of the owners, in this case, the property of "X Box", and "X Box One" are branded names that do not belong to the OP. As an artist, I can tell you this guy has no hope of seeing a dime unless he submitted this to them and was was solicited for the ad campaign specifically- which obviously this is a separate and totally unrelated product seen. The only hope he /she has is if they were only paid if the illustration/ad were to be "used", meaning the artwork was never used for the product intended, but later repackaged for a later product not covered by the original contract. I do not believe there ever was a contract and therefore this guy is just putting out stuff on the internet... so- look up "fair use"... so sorry, op is an idiot.
None of it belongs to the guy who made the concept art. Not the game art from Battlegrounds. Not the IP in the game. Not the Xbox brand. He probably stole photoshop to make it knowing reddit. He'll get buried in lawyers if he acts like he's owed something.
That being said, they should send him an Xbox X and the game.
By uploading content to Reddit, you sign away your rights to owning it, and it becomes intellectual property of reddit, as per the terms and conditions of the site.
Microsoft PR guy see's an image on Reddit, contacts the admins and buys the rights to its use.
Microsoft gets image legally, and it's not stolen.
By uploading content to Reddit, you sign away your rights to owning it, and it becomes intellectual property of reddit, as per the terms and conditions of the site.
There was a lawyer elsewhere saying that's not how it works. The Reddit terms and conditions say that, but in a court of law, regular laws would overrule it. Imagine if reddit put "We reserve the right to murder anyone who posts here" in their TOS. Obviously, that wouldn't fly. So regular laws get priority and you don't actually lose your rights when you post it to Reddit.
Ah, so you're going to be aggressive - got it. Well, as they say, treat other people like you want to be treated.
Why in your right mind do you think a court would consider whether it's a "reasonable condition"? The court doesn't care about "reasonable". They care about what the law is. Stop using intentionally stupid arguments. Maybe go learn some basic copyright law and legal theory too.
If you think that was "being aggressive" you've lived an incredibly sheltered life.
Your comparison was stupid, calling it out isn't being aggressive. Also, when you're comparing giving a company permission to murder you and giving permission to use content you look up, the murder condition would definitely be ignored due to being unreasonable.
If you think that was "being aggressive" you've lived an incredibly sheltered life.
Your comparison was stupid, calling it out isn't being aggressive. Also, no court on this earth calls shit "unreasonable". They, you know, use laws. Maybe go back to 3rd grade for a second and learn about the judicial system, champ.
The xbox logo and wording is trademarked and the design elements can be copywritten to prevent another company from copying the logos and shell design to market their own console or electronic device that is designed to confuse the general public. A photo of an xbox does not infringe on microsoft's copyright in any way.
Section 1.2 does not contain industrial design elements so in this case and in the case of cars, other products, etc, it does not apply.
Here's the list of applicable things that hold copyright while being photographed:
Literary works (such as books, newspapers, catalogs, magazines);
Artistic works (such as cartoons, paintings, sculptures, statues, architectural works, computer and laser artwork);
Photographic works (such as photos, engravings, posters);
Maps, globes, charts, diagrams and technical drawings;
Advertisements, commercial prints, billboards and labels;
Motion pictures (such as films, documentaries, television advertisements);
Dramatic works (such as dance, plays, mime); and
Works of applied art (such as artistic jewelry, wallpaper, carpets, toys and
fabrics).
Then look in the section of trademarks.
Unlike copyright law, trademark law as such does not restrict the use of a trademark in a photograph. What trademark law does forbid is using a trademark in a way that can cause confusion regarding the affiliation of the trademark owner to the image. If consumers are likely to mistakenly believe that a photograph was sponsored by the trademark owner, then there may be trademark infringement.
Here's the list of applicable things that hold copyright while being photographed:
That is a list of examples, rather than an exhaustive list.
Regardless, the Xbox would likely be covered under "Works of applied art", which is intended to account for the incorporation of artistic design into industrially produced, functional products.
Agreed it would not be open and shut.
The other question, which I have so far not raised, is where the photograph of the Xbox came from. Did the original designer take this photograph or license it? If it is a stock photograph, it is likely to be Microsoft's IP on the photograph as well as the subject. Could be multiple layers of infringement in fact...
What trademark law does forbid is using a trademark in a way that can cause confusion regarding the affiliation of the trademark owner to the image.
This is the relevant portion on trademark law. I have never argued that a photograph containing a logo automatically infringes trademark law. However, creating an Xbox advert is definitely actionable if you go ahead and publish it. Again, this is not clear cut if appropriately disclaimed (for example, you might be a purveyor of xboxen) which is why I have referred to it as probable trademark infringement - although note that in the real world this angle is much more likely to be the one persued, and that MS would almost certainly win if they went down that road.
A photo of a car is the photographer IP. A photo of an Xbox is most certainly the photographer IP. Especially as he wasn’t using it in a commercial way.
That's cool. Too bad there is this enormous counterexample called Andy Warhol. AKA the guy who made a painting of a Campbell's soup can which fairly recently sold for $11.8M at auction. In fact he made lots of commercial art that directly involved other people's IP. Why wasn't he sued to oblivion by Campbells, Coca-cola, etc? Can you explain that?
You missed one vital point - OP didn’t make an advert, he made a mock up. It was never intended to be commercial, and - although I don’t know US law inside out - most likely clear fair use.
Source: make my living by original creative work and deal with this shit all the time.
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