Update x3: This article has been updated, see the information below. Hammerfall is a well-known role-playing game for Facebook. The application has nearly a quarter of a million monthly users and is rated (currently) at a 4.5. However, the game and its creators, Dennis and Mark Kimbell, have found themselves at the center of a serious controversy as a series of deviantArt artists have come forward saying that their artwork appears in the game without their permission.

The controversy is already making waves on deviantArt following a news post by Melissa Findley, one of the artists who has work appearing in the game. She has posted screen shots showing her artwork and other dA artists within the game, which has caused a great deal of attention to be focused on her post in the dA community.

However, this controversy seems poised to only become increasingly ugly as the situation has become much more heated in the past 24 hours. To make matters worse, it involves another old foe of the dA community, Photobucket.

The Story So Far

Earlier this week, Findley was told by a friend that some of her artwork appeared in the popular Facebook RPG. According to her, she began to research the issue and found that a large amount of the artwork in the game, potentially thousands of images, were from various artists on deviantArt.

Hammerfall, which earns revenue in part by selling “honor points”, uses many thousands of images as part of the game, most of them icons and avatars, most used to represent in-game places, people and things.

She, discovered that the images in the game were hosted in a Photobucket account that was open to the public. She, along with a group of volunteers began to look through the various folders for images they recognized and identified hundreds of images that either definitely belonged to artists they knew or were likely from dA. They also used the image search engine Tineye to help them detect matches they were uncertain of and locate artists that they did not know.

As they continued their work, Findley posted a news article on dA (linked above), which is currently one of the most popular article on the site, to alert other artists and provide them with the needed information to get the works removed. She also published a list on her own blog of the artists that were affected along with links to the works from each artist they found being used.

The list, however, was far from complete and as they continued to work on locating as many artists as possible, the situation became very heated. Several dA members went over to the RPG’s forums and left negative reviews and comments, for which many of them were banned as “abusive”. Likewise, Dennis Kimbell turned the Photobucket account to “private” making it so that Findley and the other artists could not easily go through the images in the gallery, turning the already tedious work into an even greater chore. Furthermore, as they continued, Findley reported that images began to get swapped out, making it hard to keep track of which images belonged to which artists.

The work of identifying and seeking removal of the works involved is continuing but, under the current situation, could take another day or more according to Findley.

Kimbell Responds

Kimbell’s response to the accusations have been fairly limited. He has not made a public posting on the games app page but had responded to the allegations at least two different times.

First, in a discussion thread on the game’s forum, Kimbell said that “All the art we used is either under creative commons license or similar, or we contacted the artists for permission, or was bought off of stock photography sites.”

Second, in a message exchange with myself via Facebook, Kimbell went on to say that he thinks it is likely that one of the stock photo agencies he did business with is the source of the problem but that the site “doesn’t seem to be around anymore”. He has not indicated which agency it might have been.

He also confirmed that he set the account to private and declined to reopen it, saying that “is because we don’t use a lot of the art in the account on the game. Also, our in house artwork for future levels is in there. We got permission more art than we needed for the game.”

Finally, Kimbell also confirmed that he has been swapping out images as he has gotten reports of infringement, though Findley has said that the swapping often replaces one image that is infringing for another from a different dA artist.

Moving Forward

At this time it is difficult to say where this is going. Kimbell has asked for a full list of the allegedly infringing works, a list that, according to Findley is many hundreds of images long. However, a complete list is almost impossible to create according to the dA users. Frustrated by the delays, many are following the steps in the original article and filing DMCA notices with Photobucket to get the images removed that way.

Meanwhile, the negative reviews and comments keep flooding in, the score of the game already dropping 1/10 a point due to a series of one star reviews, and the thread about these issues has over 80 replies as of this writing. It doesn’t seem like this is going to die away any time soon and the actions of Kimbell seem only destined to draw out the conflict.

Personal Thoughts

Whenever I approach these situations my first priority is to work things out as amicably as possible. This is why I approached Kimbell on Facebook.

However, Kimbell’s actions to me are very worrisome. He has repeatedly stated that he wants a list of all the allegedly infringing artwork but has done everything imaginable to thwart any attempt to compile such a list. First he switched the Photobucket account to private, then began to move images around and finally started using another account to host images.

If Kimbell were the victim of bad stock photo agencies and had kept proper records, it would seemingly be trivial to remove the images they bought from those agencies or at least identify and promise to remove them as time permitted. But, even barring that, artists were willing to do the legwork, but now, due to Kimbell’s actions, no matter the intentions, the only way to determine which images are infringing is to play through the entire game.

This has the artists, who were already upset, even more outraged and seems likely to only drag out the dispute and increase its intensity.

Conclusions

Obviously this is a dispute very much in progress and I will be reporting more as I get new information. As it sits right now, it is poised to drag on from some time and the actions taken by the game’s developers seem to be making things worse for everyone.

Hopefully this matter can be resolved quickly, but at this time it looks like it is going to be a drawn-out conflict. Sadly, two of the most likely outcomes involve either Photobucket shutting down the accounts involved or Facebook removing the game. Either way, it is the artists and players that are going to suffer the most.

What could have been a heated, but brief conflict will now be even more heated and longer lasting. One thing I’ve learned about the dA community is that they do not give up quickly nor easily.

Update

Shortly after this article was posted, reports began to come up about images missing in the game. It appears that Kimbell and others at the game are now working to remove the infringing imates. According to a forum poster, a note on the front page says the following:

“Apparently the website we paid good money to get our images from was a fake and did not have permission to sell some of the images, so we are working on getting rights to some of the artwork we use and finding new images. Expect new pictures to be back up hopefully within 24-48 hours.”

This is a rather stunning turn of events and seems to give credence to the idea that the images were purchased from an illegitimate stock photo library. I’ll update this article as new information becomes available.

Update 2 (6:20 PM CT)

There seems to be a great deal of chaos and confusion about what is going on right now. Speaking with Findley and other artists involved, there are reports of images going down, being replaced and being move. The reports seem to be highly conflicted right now.

What I can say with certainty is that Kimbell has set up at least one, possibly more, new PhotoBucket accounts and has moved a lot of the images there. This account was set to private by default. It appears that most of the images that were offline are now back online though. It appears that most of the “shuffling” has been more about getting images that were removed working again and not about replacing any misused works.

Findley and her team are working on it and have made some great headway. I have additional information that I’ve been asked not to report on at this time but I want to make it clear that the latest as of this writing is that the images are not being removed en masse, though some do seem to be disappearing, but rather, that they are being moved to a new account.

I will update as this develops.

Update 3 (02/06/09)

Earlier today, the images in the game began coming down and were being replaced by “Vote for this Image” links. I messaged Kimbell about this and he confirmed that all of the iamges are being removed, saying that “We’re starting over on the image thing and asking for people who play the game to help with their own art.”

In short, Kimbell has removed all of the artwork from the game and is encouraging players to upload and vote for the images that they want to see used. Kimbell also said that they will work to verify ownership of all of the images that they receive and will not accept any images that is not either uploaded by the creator or licensed under an appropriate license.

According to Kimbell, the images in the various Photobucket accounts should be removed sometime in the coming days.

This should put an end to this controversy though, obviously, the artists will be checking closely to ensure everything is followed through on.

Though she did not put the blame on iStockPhoto directly, she did note that this is a problem that is becoming “increasingly annoying” for those who use the Internet to showcase their work.

iStockPhoto has not responded as of this writing and there is no way of knowing if the images are still on line at this timeArticle Update: iStockPhoto has responded below and confirms that the images have been removed. Guðleifsdóttir has said that she has contacted a copyright attorney about this and is working “tackle this problem in the best way possible.”

Unfortunately, this seems to be a problem that is, as of right now, unresolved and is likely affecting many other photographers on the Web. Worst of all, there is a great deal of legal uncertainty as to how and if resolution can be obtained.

Legal Uncertainty

Unfortunately, due to the nature of the case, there is no simple way to resolve it.

Guðleifsdóttir is from Iceland, iStockPhoto is based in Alberta, Canada and the person who uploaded in the infringing images is, most likely, in another country altogether.

Since iStockPhoto is located in Canada, it isn’t bound by the DMCA. There is no notice and takedown provision in Canadian law as of this writing. Furthermore, since iStockPhoto profits directly from each infringement, they would likely not be eligible for protection under the DMCA, even if they were an American company.

iStockPhoto does offer a “Notice and Procedure for Making Claims of Infringement” on their site that closely resembles the DMCA. However, it requires a postal letter be sent directly to their president. Given the geography of the situation, that could take a week or to arrive and even longer to be acted upon.

Article Update: iStockPhoto in a comment below stated that the images involved have been removed and a physical letter. I am seeking clarification as to how to bring these issues to their attention without the use of a physical letter.

Finding and targeting the person who uploaded the images could prove difficult as one would first need to get the account information from iStockPhoto and then target the individual or company in their home country. That could easily wind up costing more than any potential damages that could be claimed.

If iStockPhoto is not cooperative in this matter, this situation could be almost impossible to resolve and regular photographers, without the legal resources to go after the company and any infringers, could be left with little recourse against abuse on the site.

Some Good News

The good news is that those I’ve spoken with that have worked with iStockPhoto have reported that they do handle cases swiftly and fairly. Though the requirement of a mailed letter slows down resolution times, they do respond and handle such matters when they are discovered.

Though iStockPhoto doesn’t seem to have much motivation to work with artists, not doing so would not only harm the infringed parties, but their own customers.

Furthermore, if they knowingly sell photos they do not have the rights to offer, they could held liable for other damages by both the artists that were ripped off and the companies that bought the bad images.

All in all, even though iStockPhoto might have the legal high ground right now, they could lose it quickly if they acted in bad faith and all signs point to them responding quickly and effectively to this case. However, the details of what that resolution will include, especially as it pertains to the money earned on the infringing images, remains unclear.

Conclusions

As a company that sell photographs, not merely hosts them, iStockPhoto has a greater responsibility than other sites. It is not merely enough to take down infringing photos when notified via postal mail, they owe it to their customers and to the photographers that legitimately sell their works over the site to try and keep infringing works from being made available in the first place.

To that end, image matching technology is rapidly entering the mainstream and could save the company a great deal of headaches.

Even if the technology isn’t perfect, if it prevents even a small percentage of infringing images from being uploaded, those are images they don’t have to clean up after the fact.

For artists and photographers, it makes image watermarking an even more appealing option, where practical, and highlights the importance of using low-resolution images when posting to the Web.

It isn’t much, but it can prevent your work from being an appealing target for those who wish to make a quick buck.

For more information, see my previous article entitled “The Secret Site of Stock Photography“

At issue, specifically, is PhotoBucket allowing users to print the photos of strangers, including photos that were uploaded illegally, and the lack of a take down stay down system on the service.

PhotoBucket, through their PR agent responded by saying the following:

“Photobucket is committed to protecting and empowering content owners and creators. The site offers features that give users the ability to set private and public settings for their photos and videos. The company also strictly adheres to government DMCA guidelines to protect copyrights through the prompt removal of infringing material and action against repeat offenders.”

It seems unlikely that the response will do much to quell the concerns of the signatories of the petition, which is now over 5500 signatures, or address the issues raised.

I will report more on this as I get more responses and feedback.

As of right now, the petition has gartered nearly 900 signatures and is growing at a very rapid pace. This is due almost exclusively to a huge push from the art community itself, specifically the efforts by several well-known deviantART member including lone-mono, budgie and dozens of others.

I have to say that I have been thoroughly overwhelmed by the response and I want to thank everyone that has posted the petition and the original article on their site. Without your help in getting the work out, this would not have been possible.

Right now my plan is to allow the petition to collect more signatures. Once it reaches over a thousand signatories, I plan to present it formally to the PhotoBucket staff. I will resubmit every time the petition crosses another 500 signatures until we receive a response.

I want to stress that there is a need for both unity and civility at this point. Though emotions understandably run high with this issue, cooler heads prevail in these types of disputes. I want to encourage everyone to give PhotoBucket a chance to address these issues and to not take any unilateral action that could hurt the cause. The next steps are being being planned already and everyone will be involved.

Finally, to all of the deviantART members who are new to this site, I would encourage you to take a look at the Ripped Art Task Force. They are a great deviantART group that deals with the issue of art infringement in a strong, professional manner.

They are a highly recommended resource for deviantART members.

Again, thank you all for your support and please, continue to help get the word out there. As the saying goes, this battle has just begun!

Update 1 PM CT: We are now one of the top ten most active petitions on PetitionOnline.com. See Image Below:

Update 4 PM CT: Rather than send the petition end at the tail end of a work day, I will send it in first thin the morning. I will post updates here and to the other entry after it has been sent off.

Later, in July, she filed a lawsuit against the company behind the DVD, TVX Films, with the aid of a Tampa lawyer, Richard Harrison.

There has been little movement on the lawsuit. According to Harrison, TVX Films has filed a motion to dismiss the lawsuit on jurisdictional grounds but not much else has happened.

However, a forum posting earlier this month on Model Mayhem has pointed to another controversy with TVX films and, possibly at least, another set of legal troubles for the company.

A Potential Pattern

In the forum, a poster named Manuel Rego highlighted the cover of TVX Films’ movie Sunny (NSFW), which appears to have used a photograph entitled “Flowers” (nsfw) by a Russian photographer known as “Roge”.

According to Rego. he was able to get in contact with Roge and said in another posting that the photographer had no idea that the photo was being used and that he was upset about it.

No word about whether or not the photographer involved is considering action against TVX films for the use of the photo.

The forum conversation also discusses, and in fact started with, another image used on the cover of the TVX film “StarBabe” that appears to come from pinup photographer Octavio Arizala (noisy site and nsfw), also known as Winkytiki.

The cover photo on the Starbabe DVD seems to be a doctored version of a photo he shot of a woman holding a science fiction pistol. The photo can be seen on his Web site in various places though I could not find a direct link to the photo.

According to Harrison, who sent me the link to the Model Mayhem forum, “If you look at the three cases (Lara Jade and these other two) you will find that all three had their work on Deviant Art website and all three
photographers reside outside the U.S. Seems like a deliberate pattern, and not sheer coincidence, to me.”

Harrison goes on to say that he does not represent any of the other photographers involved and can not comment on what action they might be taking.

I sent an email to Arizala for comment but he did not respond before the posting of this article. I will update this piece if he does.

It is unclear what, if anything, will come of these allegations. However, photographers and models are being encouraged to take a look at the TVX site, linked in the original forum post, and see if your work has been used by them. I would add that is especially true if you are an international photographer that has used deviantArt and takes photos that might be of interest for this type of use.

Clearly though, there is much about this case that is unresolved and I will continue to bring you more updates as they come to light.

Also, since Lightbox disables or limits access to most of the right click tools, including the “save image” attribute, some Webmasters have come to think of it as a way to prevent or reduce image theft.

However, Lightbox was never designed to stop or slow down image theft. Though it is a very beautiful effect and a very effective way to display images, it is not effective at preventing users from copying images. That was never the goal of it.

In fact, there are several simple and easy means of circumventing the protections Lightbox does provide, none of which require any special knowledge or expertise.

Easily Defeated

Lightbox, as widespread as it is, does nothing to prevent users from downloading the images in a gallery. There are at least three methods that any visitor can use to download the full-sized images to their hard drive.

First, on the gallery page itself, all the user has to do is right click the thumbnail of the image and then select “save target as”. Since Lightbox galleries link directly to the larger image, pulling the javascript on the click itself, this enables the user to download the full-sized image and completely bypass the javascript effects.

Second, after one has opened the image in the Lightbox frame, all one has to do is click the image itself and drag it to their desktop or an open folder. The trick to making this work is to click before the Lightbox frame has fully loaded. After the frame is completely open, this kind of drag and drop is, in most cases, disabled.

Finally, in the same vein as the second attack, it is also possible, while the Lightbox frame is loading, to right click the image and save it that way. In both cases, the best time is after the image has loaded, but before all of the surrounding items have opened up.

In addition to those methods, it is also possible to simply take a screenshot of the image and crop it out or switch off Javascript to completely bypassing the Lightbox effect.

The bottom line is that there are many different ways to copy full images hidden in a Lightbox gallery and any site that relies on Lightbox as part of its content protection strategy needs to realize that Lightbox does not provide any actual protection.

Securing Lightbox

Those who are interested in using and securing Lightbox can take several steps to help reduce the amount of content theft they experience.

1. Eliminate right click on gallery pages: Though very annoying to legitimate users, if you’re certain there is no valid reason to be right clicking on a page, you can disable right click on the gallery page to prevent people from saving the target. Use with great caution.
2. Require Javascript: Since the vast majority of browsers have access to javascript, you can require it to view the gallery page. Anyone who does not have it will not be exposed to the raw images after clicking through.
3. Use Modified Scripts: Using modified versions of Lightbox, you can embed the image in a flash file and let viewers see it that way. The prevents the full image from being exposed.

However, as powerful as those methods are, they can only address some of the ways to circumvent Lightbox. The only real way to secure Lightbox, or any gallery for that matter, is to ensure that the full image is never downloaded to the user’s computer by watermarking them before they are sent out, either on your machine or on your server.

Sadly, Lightbox, nor any other javascript gallery system, will be able to fully protect images, though they may create some frustration and confusion for lazy plagiarists.

Conclusions

None of this is intended to be a criticism of Lightbox. Lightbox never claimed to be nor was it ever designed to protect content. It is an interesting and practical effect, but not much more.

However, when it comes to image protection, Webmasters often times misplace their trust into techniques and methods that were never designed to stop theft. In a desperate attempt to abate very real and very reasonable worries about theft and plagiarism, some will turn to anything that even gives the vague appearance of offering protection.

Sadly, this kind of misguided trust is more dangerous than having no protection at all. If one is vulnerable and they know they are at risk, they can take precautions and seek out real methods to address the problem. If they put their faith in false protection, they do nothing but remain just as vulnerable.

Lightbox is a great script but it is important to note the limitations of it. Anyone who is relying upon it for image protection needs to be aware that it is nothing of the sort. Fortunately, there are real protection methods available and, if you wish, you do not have to remove your Lightbox effect to use them.

It just requires some advance planning and preparation.