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Re: [Fwd: Memo on video game thumbnails]

On Fri, Aug 8, 2008 at 11:46 PM, Ben Finney <ben+debian@benfinney.id.au> wrote:

> Could you instead please give us the *text* of their response? That
> would make it much more accessible to followers in this discusion.

Minimally reformatted version below:

         Draft of August 8, 2008


                   Re: Copyright issues in thumbnails images of video games

1. Introduction

         You have asked us to provide legal guidance with respect to
the copyrightability of
thumbnail images of video game screenshots and in what manner these
thumbnails can be
distributed by Debian. The analysis below is based solely on U.S. law.
Under another
jurisdiction the analysis may differ significantly. Consequently, the
assessment contained in this
Memorandum may need to be developed and clarified in light of
additional materials,
information and explanations.

2. Copyrightability of Video Game Screen Shots

         The two basic tests for eligibility for copyright protection
are originality and fixation in
tangible form. In general, games, or more accurately the ideas behind
the games, are not eligible
for copyright protection. Copyright does protect, however, various
modes of expression of the
idea of a game such as the pattern of the game board or the
instruction manual to a game. To
qualify for copyright protection, a work must be independently created
by the author (i.e.
"original") and possess at least some minimal degree of creativity.
The fixation requirement is
satisfied when the work of authorship is recorded on some physical
medium capable of being
perceived, reproduced, or otherwise communicated, either directly or
with the aid of a machine
or device.

         As a piece of software, the code underlying a video game is
copyrightable. In addition,
the display of images on a video game screen can also be separately
copyrightable as a visual
work. The author of the software is also the author of the visual
representation of the game since
it is the author's instructions that create the image. Thus, the
reproduction of a screenshot copy
of a video game display could constitute infringement of that work
notwithstanding the fact that
the game's actual software code has not been copied.

         Arguments that go against this conclusion can be based in the
originality requirement and
on the fluid and fleeting nature of video game images. For example, it
can be argued that
copyright solely attaches to the code and not any derivative works
that are purportedly created by
that code such as a screen shot image. Others may argue that the
images produced by the game
code and the interactions with the players are not "fixed" or,
alternatively, that the players of the
video game are the authors of the images. Therefore the images created
by a video game
program are either not eligible for copyright protection because they
are not "fixed" in a tangible
medium or the images are authored by someone other than owner of the
copyright in the
underlying code. All of these arguments, however, have been rejected
and copyright in the
display of a video game is generally recognized as a separate
copyright apart from the underlying
code. We note, however, that the issue of authorship of the resulting
image is fact dependant and
involves inquiry into the nature of the game and the player's ability
to control the resulting
image. For example, a video game may contain elements of an image
creation utility such as
Paint or Photoshop that would allow a player to manipulate images to
such a degree that the
player himself could claim a significant portion, if not all, of the
authorship of the image.
However, a court has found that in the typical video game context the
player's ability to control
the image is more akin to "changing channels on a television than its
like writing a novel or
painting a picture."

         A thumbnail is a copy of an image; albeit often a degraded
copy. As such, it is a work
derived from the original image. In most cases the only manipulation
performed on the image in
creating the thumbnail is a reduction in the image's resolution and
often some modification in
the proportional height and width of the image. This level of
manipulation is usually driven by
practical concerns and dictated by functional considerations. It is,
therefore, not likely to be
considered a creative expression on the part of the person creating
the thumbnail. In the typical
case, then, there would be no copyright in the thumbnail image
separate from the copyright in the
original, full-scale image. The author of the original image, as the
sole owner of copyright, can
therefore decide whether or not to create, or permit others to create,
thumbnail images. If
unauthorized, a thumbnail image is an unauthorized work that violates
the rights of the author of
the original image. In cases involving copyright in thumbnails images
that have reached the U.S.
Federal Circuit, there has been little doubt that the creation,
publication, display or distribution of
thumbnails of copyrighted images of video game screenshots is also infringement.

         Since the question of whether there is infringement in most
cases is not at issue, the
major court decisions on thumbnail images usually center on the fair
use exception. We
understand that Debian generally cannot rely on fair use to allow it
to offer the thumbnail
images. Nevertheless, it still may be helpful to review the current
law on the subject.

3. Fair Use

                   The fair use exception to copyright protection is
codified in Section 107 of the
Copyright Act of 1976 (17 U.S.C. § 107), which provides that the "fair
use" of copyrighted
material is not infringement and provides the four factors that a
court must weigh in a
determination whether a particular use is "fair." The factors are i)
the purpose and character of
the use, including whether such use is of a commercial nature or is
for nonprofit educational
purposes, ii) the nature of the copyrighted work, iii) the amount and
substantiality of the portion
used in relation to the copyrighted work as a whole, and iv) the
effect of the use upon the
potential market for or value of the copyrighted work.

         In Sony Computer Entertainment v. Bleem (2000) the court
found that use of screenshot
images by the creator of a PC-based emulator of Sony console video
games in advertising, while
constituting infringement, was fair use because of the transformative
nature of the use of the
images to compare between versions of games. In Kelly v. Arriba Soft
Corp (2002), the court
found that although defendant Arriba conceded that the thumbnails were
infringing, the use of
the thumbnails as part of thousands of images from other sources
within the context of a search
engine database was a transformative use. After balancing the
transformative nature of Arriba's
use of the thumbnails with the other traditional factors weighed in a
fair use analysis, the court
found that such use fell under the fair use exception.

         And most recently in Perfect 10 v. Amazon.com Inc. (2007),
the Court of Appeals
concluded that even though there is a commercial market available for
thumbnail images for use
for cell phones and other small displays, the use of the plaintiff's
images for commercial
purposes by Google and Amazon.com was likely fair use. The court's
decision was founded on
the conclusion that the transformative nature of the use of the
thumbnail images within the
context of a search database offering a functionality apart from the
originally intended uses of
the images far outweighed the competitive effects on of Perfect 10's
plans to sell thumbnail
images to a third parties.

         We understand that Debian intends the thumbnails to be used
in tandem with descriptions
of the games within an application that describes what games are
available to be used on the
operating system. The use of the thumbnails in the games-thumbnails
package is most likely fair
use as the use of the thumbnail images in this context is analogous to
the search functionality
employed in both Kelly and Perfect 10 and the use in advertising used
by the defendant in Bleem.
However, this protection may not extend to other users and developers
that may choose to
employ the images for other infringing uses that may fall outside the
fair use exception. Debian
will, thus, not be able to distribute the thumbnails images under a
"free" license which would
have allowed downstream developers to use the thumbnails for any purpose.

4. Conclusion

         Given the potential of infringing acts by a downstream user
of the thumbnails distributed
by Debian, we recommend that Debian distribute the images under the
same license under which
it distributes the underlying game code.



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