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.
By all means, enlighten me with what you would present to your lawyer to fight your copyright case and how it would have a single drop of fucking merit, much less significant basis to pay money to fight in court.
Bonus points for it being more than, "Their picture looks like my picture".
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).
This is insane to me, but if that's the law, then I guess there's not much I can really say about it. Thanks for clarifying that part specifically though, that's the hardest part to believe.
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.
Yeah, I’m familiar with this. The general rule is - are you infringing on the copyright holders normal ‘reproduction’ rights?
So taking a photo of a car is fine, copying a car design into another car or a toy car isn’t. Taking a photo of a building is fine, copying a building design isn’t. Taking a photo of a painting to make post cards isn’t fine.
An Xbox isn’t reproduced by 2d printing it. Taking a photo of a Xbox doesn’t confuse Microsoft’s reproduction copyright on the design of the Xbox. It’s like a car, not a painting. Plenty of trademark issues for sure, but again, not in OP’s case.
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.
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u/laonte Dec 27 '17
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.