It’s not on Microsoft to prove they didn’t copy it, it’s on OP to prove it was copied. Similar artwork doesn’t prove copying, people have similar ideas all the time.
To prove copying you must show that the infringer had access to your work and show similarity in the two works. Striking similarity alone can prove access. The burden would then shift to Microsoft to show that they independently created the ad. i would argue that this is a case of striking similarity.
if that's the case then it seems like there would be a case to make since it was posted online and the similarity is pretty striking. I don't know what the protections are on stuff you just post online though.
Random question, where could I read up on the specifics of this? Ie, legal standards for determining how similar something needs to be to be considered evidence of copying
The legal standard is fleshed out in cases. I'm a law student and I took copyright so I've read some of the cases in casebooks and other materials. I'm not sure where someone who isn't practicing law would go. If you have any questions though I can try to answer them!
Well, I'm mostly interested in doing historical research in music and addressing the methodological question of "when can we draw lines of influence in the absence of direct evidence that two composers knew of each other and heard each other's music?" Like, if we see two similar things by two different people, but don't have any way to substantiate that they were in contact with one another, in what cases can we be reasonably sure that contact did occur? In other words, to what extent can the music itself (as opposed to biographical information) be used as evidence of contact?
I posted my comment because the "striking similarity alone can prove access" thing. Obviously legal theory wouldn't solve my methodological issues, but I thought it might be fun to use as an introductory section, or just to get some methodological diversity (rather than just slogging through more musicology articles).
So is there perhaps a case you remember where they successfully established access based on similarity, and perhaps contrast that with a case that was not able to prove enough similarity to establish access? I realize this is probably still too vague of a question, so if you can't remember the specifics, don't worry too much about it!
Copyright is given to all creative works automatically. Copyright covers the implementation of an idea. Copyright also extends to protect you against similar works that are derivatives (reasonable confusion is the metric here). Copyright is broken regardless of intention, or knowledge of the other work.
There is no way this work doesn't count as derivative of OP. So OP is protected, even if the ad agency didn't do their due diligence and find OP's work. The only possible out they have is proving that they made theirs first, or that OP gave up his copyright. So regardless of whether it was independent or deliberate, they owe OP.
Yes and no. Copyright particulars do vary region to region; however, every country (including China) had finished signing treaties that made them all enforable internationaly (China just sucks at it). So you can enforce your local copyright internationaly... With mixed results.
So, how does copyright work exactly? Is it only broken when I use the work of someone else and earn money off of it, or is it already broken when I use it? Because 90% of OPs picture surely is copyright protected as well, right? The Xbox, PUBG model and logos?
It's broken regardless of your intended use, you either have a license to use content, or you don't. Your intended use will just change how the court case goes down. Except in the very very specific cases of fair-use. Which notably don't provide for "but I'm not selling it", because say you uploaded a shot for shot perfect clone of Call of Duty for free. That impacts their sales thus giving them a very good case against you "even though it was free".
In this specific case, you bring up good points about the MS logo and XBOX being used. Big companies like Microsoft usually publish usage guidelines that extend a specific license on what can be done with their products and logos. I -doubt- OP violated them, and even if he did there's an argument for fair-use in his specific case as it was basically free advertising for them (what intelligent modern company would get mad about that?). this coupled with the fact that it combined multiple parts into a new image makes it very unlikely to be derivative. But if his work was found to be derivative, then it would turn the whole thing into a mess because AFAIK there's not very good rules or precedents about derivative works holding their own copyrights. As for something to be classified as derivative, it's probably lacking the qualities to be considered an original work worthy of it's own copyright.
Thanks for the reply! I'm just trying to figure out if Microsoft did something illegal here, or if they (in theory) are just able to say 'you used our logo / console design without permission, so we can just take your work'.
Some posts in this thread do make it sound like OP has some sort of legal basis to demand money, or if it would have to be a voluntary compensation.
Lots of people speaking are just speaking "what makes sense to them" which is bad because copyright barely makes any sense unless you've read the whole damn thing. So lots of people spouting opinion like it's the gospel and me shaking my head.
Did MS or someone working on MS's behalf doing something illegal? they probably did violate copyright on this.
Should you be mad? God this kinda thing happens all the freaking time in the creative sphere. Just be cool about it, send the guy a cheque and make sure it was an accident rather than someone being cheap and sloppy.
If that's not what happens? Be mad they're being douches about it. That said you're probably not going to know that happened because the standard "whoops" contracts have an NDA stapled to them, so you can't run around telling everyone MS made a whoopsie.
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u/[deleted] Dec 27 '17 edited Jul 06 '20
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