It’s a story that is likely familiar to readers of this site. An artist discovers his work being used in a Facebook-based RPG game and, after alerting various communities, other works are discovered and a storm of controversy is created.

It happened back in February with the RPG game Hammerfall where many works from the deviantArt community were found to be used in the game without permission. The game eventually, after much controversy and a protracted public battle, removed the works in question and began to crowd-sourcing the search for new ones.

However, over this weekend, a similar scandal broke, this one involving the Facebook RPG Castle Age. The person who discovered the infringement, Jason Manely. is a well-known artist who, through his company Massive Black, has provided artwork to gaming companies ranging from Activision to Nintendo. He discovered that at least one of his images was used in the game and immediately reached out to the developers in a bid to learn if there were more.

After not receiving an immediate response from the administrators of the game, Manley posted about his discovery ConceptArt Forums, which he also runs, and to the Facebook discussion group for the game.

Very quickly, other works that appeared to be infringement were found, and other artists came forward to say that they see their work in the game without permission.

With the storm started, many waited to see how Castle Age would respond, the answer would come soon enough.

Both Sides Respond

The game’s administrators first responded by removing the link to the forums from within the game, which caused an additional uproar both among players and the visiting artists. However, after that, posted to the forum with the following statement:

“As some of you may know, there have been questions about the validity of some of the images in the game. For the time being, we have removed the images under review from Castle Age. We are looking to resolve this issue shortly.”

This, in turn, prompted Manley to post a reply saying, in part, the following:

“I posted this in the other threads but want to be sure the discussion here is wrapped up without any fighting or further drama. No one wants that.

This case is now going to legal. We did all we could to stop the misuse of our work, and the protect our rights as artists..as creators..as people who too must make a living from the talents we have worked so hard to build over many years of hard earned learning and study. I understand how members of both CA communities feel.”

In a phone conversation with Manley, he explained to me that he is discussing all options with his attorney and, as of Monday, was waiting for the lead developers/operators or their attorney with his lawyer. It is clear, from our conversation, that this matter is not over for him and that “going to legal” represents a new, albeit more private, phase in the process.

Similarities and Differences

One the surface the Castle Age and Hammerfall cases have a great deal in common. Both are Facebook-based RPG games that were found to be using artwork from various artists without permission and, in turn, were forced to remove the work. However, where the Hammerfall controversy was largely spearheaded by a a community of artists, who most operated on deviantArt, where the Castel Age case was spearheaded, at least initially, by a single, albeit very well-known, artist.

That may seem to be a small difference, but since the artist has both the means and financial incentive to file suit against the makers of the game, it makes a litigious outcome much more likely.

Though as far as a public embarrassment goes, the Castle Age case turned out to be much smaller (less time taken, fewer images involved, etc.) but it also seems less likely that the removal of the works will end the ordeal.

As for the game itself, the known offending images have been replaced, but it appears that the replacements have been met with a few negative reviews from current players. Despite this, the game appears to be continuing operation

Personal Thoughts

Throughout the ordeal, there are a few things that I have noticed that have interested me:

1. Manley’s Turnaround: According to Manley, he reached out to an admin at the game first but posted to the forums within a few hours of his message. I’m of two minds on this. I realize that there were likely other artists involved and wanted to get the word out about the possible infringement, but it does take longer than a few hours to respond to a notice. I’m unsure how I feel about this. It caused a great deal of “fighting and drama”, as Manley called it, but also alerted others to possible infringements. It seems to have done both harm and good in this case.
2. Castle Age’s Response: Though Castle age didn’t take too long, approximately a day, to post an official reply in the forums, the initial response of removing the forum link, whether or not it was actually tied to the controversy, gave the impression of trying to cove up what was going on. That being said, no posts were deleted, not that I’m aware of, and many of the involved threads are continuing to be active with no interference. In short, though the response wasn’t nearly as bad as Hammerfall’s, it could have been better.
3. Player’s Reaction: Though many of the players of the game were sympathetic to the artists, others were extremely hostile. Some of it was due to the fact they felt “invaded” by the artists over what, in their view, should have been a private matter, but much of it was hostility that artists whose work was being infringed were working to “shut down” a game they had spent money and time on. Though the anger was misdirected, it was still an interesting case study in how some people view copyright issues.

However, the biggest lesson in this is for game developers. Facebook RPG games, much like games for the iPhone and other platforms, are often built by talented programmers with little to no budget. Though these games can make a lot of money, there is a great deal more to making a game than putting together code.

For these Facebook RPGs, one of the more important, and difficult/expensive elements is in creating the artwork or in clearing the rights to it. This is not a trivial process, especially over hundreds or thousands of images, and requires time, organization and skill.

Unfortunately, at least two popular Facebook RPGs have had issues in this area and I suspect these kinds of issues will become more common with apps and games as they become cheaper to produce.

Bottom Line

In the end, it’s another Facebook RPG controversy more or less in the books. Though this one likely isn’t over completely, its entering a more private phase that is likely to drag on, largely unnoticed, for some time. I’ll report updates as I hear news from Manley or other sources.

But more than a commentary of Facebook or its apps, this case showcases the challenges visual artists face on the Web every day.

In many ways, Manley is a fortunate artist. He has the resources and motivation to make it practical to pursue infringements of his work. Most artists that post to the Web do not have that option.

Visual works are easier to take, harder to search for and, generally, harder to enforce. When it comes to visual artists versus writers, it’s clear who has the tougher time with copyright on the Web.

photo credit: billaday

In order to keep things interesting here, I’ve decided to start an irregular series dealing with your content, copyright law and all things related. This series, entitled “Pop Quiz” will ask seven questions in a particular area.

For those interested in playing, the goal is simple: To be the first to get all the questions right.

If you want to play, simply leave a comment below with your answers to the questions. I’ll confirm the correct answers as soon as practical. The prize for winning, other than a feeling of lukewarm accomplishent, is a link to your home page in the follow-up post, if desired.

If you’re ready to give it a try, this week’s questions deal specifically with your content in Google and how to control where your content appears in Google.

1. What are three ways you can request your site be removed from Google search? (Note: This is your own site or a page on it, not an infringer)
2. What is the email address for the Google DMCA agent? (please only include the part before the @).
3. What, according to Matt Cutts, is the most effective way to report spam to Google?
4. What is the name of the Google service that will email you search results as they are picked up by Google?
5. What is the name of the Google spider, or rather, the name you need to refer to it as when you are trying to block it?
6. What is the meta tag command to prevent Google from displaying a sample of your content in their results pages?
7. What search command lets you see approximately how many pages Google has indexed on a site?

Bear in mind that some of these are designed to be brain-dead simple and others are meant to be a bit more challenging. However, all of them are more than easily researched and looked up.

And yes, it is legal to use Google.

I hope you have fun with this and I look forward to your answers!

The one question that tripped everyone up was the second. According to U.S. Copyright Law, posting to the Web does not constitute publication. This has more to do with a very narrow definition of “publication” according to copyright law. Most likely, it would be considered a “public display” since it can be viewed by anyone but copies are not available for sale or lease unless additional steps are taken.

Thank you to both Jeremy and Amita for playing! It was great fun and I hope you enjoyed it. All of the correct answers are below the fold as well as the sources used.

Answers

1 ) What are five of the exclusive rights that come with copyright protection (Hint: There are at least six)?

- To reproduce the work in copies or phonorecords;
- To prepare derivative works based upon the work;
- To distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
- To perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works;
- To display the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work; and
- In the case of sound recordings*, to perform the work publicly by means of a digital audio transmission.

2 ) Does posting a work to the Web constitute publication, yes or no?

No. This one was tricky but under current law putting a work on the Web constitutes public display. Publication is defined as the following “‘Publication’ is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending.”

See the notes below for references.

3 ) What are three benefits of registering your work with the U.S. Copyright Office (Hint: There are at least five)?

- Registration establishes a public record of the copyright claim.
- Before an infringement suit may be filed in court, registration is necessary for works of U.S. origin.
- If made before or within 5 years of publication, registration will establish prima facie evidence in court of the validity of the copyright and of the facts stated in the certificate.
- If registration is made within 3 months after publication of the work or prior to an infringement of the work, statutory damages and attorney’s fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner.
- Registration allows the owner of the copyright to record the registration with the U. S. Customs Service for protection against the importation of infringing copies.

4 ) How long is the copyright term for works of joint authorship?

Live plus seventy for the longest surviving author.

5 ) What is the copyright term for an anonymous work?

95 years from publication or 120 years from creation, whichever is shorter.

6 ) What are the four factors of fair use?

1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

7 ) What copyright protection does works created by the Federal government have?

None. Works created by the government are in the public domain. As pointed out by Amita, works comissioned by the government may have copyright protection depending on the nature of the work and the circumstances it was created.

8 ) Who can file a DMCA notice (Hint: There are two)?

Either the copyright holder or an agent authorized to act upon their behalf.

9 ) What is the maximum amount of damages the courts can award per work for willful infringement?

Up to $150,000 per work.

10 ) What is the name of the form used to register a textual work with the U.S. Copyright Office (Hint: Will accept both versions)?

For textual works, one would either use Form TX or Short Form TX depending on the nature of the work.

Bonus: Which one of these books is NOT in the public domain: 20,000 Leagues Under the Sea, Treasure Island, The Lion the Witch and the Wardrobe, Alice in Wonderland and War of the Worlds

The Lion the With and the Wardrobe is still protected. C.S. Lewis died in 1963 and his work will be protected for approximately another 25 years.

Sources

The vast majority of these questions came straight from the Copyright Basics Page at the USCO Web site. Also used was the USCO’s Fair Use page and Project Gutenberg was used to help with the bonus question along with the recent WIPO Activity Book.

That should cover all eleven questions. If I forgot a source or one of the answers isn’t explained in these pages, let me know!

This time around the rules are much more straightforward Ten questions, all of them basic copyright questions, and one bonus that should be at least a little bit of a stumper. There are no trick questions, all are solvable and this is even an open book test.

The only rules are that no lawyers are allowed, this is for my fellow laypeople only, and to win the game outright you have to get at least the first seven correct and then the bonus. If no one can do that, then I’ll take whoever has the most questions right along with the bonus. If no one gets the bonus, then its the most right answers.

Clearly, the term “bonus” is something of a misnomer.

The prize, as usual, is a hearty congratulations and a link in tomorrow’s post, which will include the results/answers. Time starts once this is posted live and ends at 6 AM ET tomorrow.

Good luck to everyone. Due to the nature of this contest I will not be responding to comments until tomorrow morning. I’m looking forward to seeing how you do! Also, don’t forget, these questions are based upon U.S. law, your mileage may vary.

Questions

1) What are five of the exclusive rights that come with copyright protection (Hint: There are at least six)?

2) Does posting a work to the Web constitute publication, yes or no?

3) What are three benefits of registering your work with the U.S. Copyright Office (Hint: There are at least five)?

4) How long is the copyright term for works of joint authorship?

5) What is the copyright term for an anonymous work?

6) What are the four factors of fair use?

7) What copyright protection does works created by the Federal government have?

Who can file a DMCA notice (Hint: There are two)?

9) What is the maximum amount of damages the courts can award per work for willful infringement?

10) What is the name of the form used to register a textual work with the U.S. Copyright Office (Hint: Will accept both versions)?

Bonus: Which one of these books is NOT in the public domain: 20,000 Leagues Under the Sea, Treasure Island, The Lion the Witch and the Wardrobe, Alice in Wonderland and War of the Worlds

Conclusions

Though hopefully still a little challenging, this game should be a bit easier than the other. At least there are no tricks this time around.

Simply post your answers in the comments and, even if someone else has posted enough answers to win, go ahead and try anyway, one never knows if they got one wrong.

Above all though, have fun and watch out, you might learn something. I certainly did when looking up the questions.

So Jeremy, congratulations. You earned it by figuring out a very tough puzzle.

However, the puzzle was designed to make a point about the complexity of submitting and determining the validity of a DMCA notice. I think it achieved that.

That, of course, brings me to the solution. The third notice was the valid one, if you want to know why, keep reading below.

Missing Something

All three notices were missing something, the trick was to figure out which missing item was not actually required by the law.

The first notice was missing a statement, under the penalty of perjury, that the notice was accurate. Several who played the game caught that and were completely right. The notice is completely invalid.

The second notice is a bit more tricky and was the one that tripped everyone up. However, it’s missing feature was actually related to the first one. To figure out what is wrong, we’ll look at the sixth requirement under the DMCA:

(vi)A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

The notice has to be filed by either the copyright holder or an authorized agent. Though the second one states that they do not believe the use is authorized by either, it does not state that the notice is submitted by one or the other.

That is a major distinction from EU notice and takedown and is a legal requirement of the DMCA. The second letter, theoretically, could have been submitted by anyone without authorization from the copyright holder. That would be against the DMCA and would haev been grounds for rejecting the notice.

It is a tricky law in that regard, but it is an important element.

Finally, the third DMCA notice was missing the URLs from the original site. However, as Jeremy pointed out, there is no requirement for URLs to be there. All that is required is that the original work be identified, which it was by the title, and that the infringing material be identified as well, which it was via URLs.

You can see examples of this in the DMCA notices filed by companies such as Viacom and Scholastic, which rarely have URLs to original works since their material was never supposed to be online.

The third one, despite being shorter and containing less information, was actually valid.

Thank You

I want to say thank you to everyone who participated and hope that you will take part in the next game, whenever that is. There were a lot of great ideas kicked around and a couple of you emailed me for hints, which is definitely cheating, but was a lot of run.

Let me know what you thought of the game and I’ll try to make the next one a little bit less evil.

Quizzes always bring out my sinister side.

Though the criticism of hosts is a little more fair since they were one of the parties pushing for the notice and takedown provision, the fact remains that the DMCA notice and takedown provision is complicated and, for most people, difficult to use.

Without a good stock letter, most people find it nearly impossible to file a complete DMCA notice and most hosts provide little to no assistance with the process.

To illustrate that problem some as well as explain why hosts make mistakes with the DMCA and why so many submitted notices turn out to be invalid, I’ve decided to create a game. This game will test your knowledge of the DMCA by giving you three notices, only one of which is valid.

You have to pick the right one.

The rules and notices are below the fold so keep reading and post your answers in the comments.

The Rules

The rules are simple, there are three notices below in RTF format. They have different structures and styles but only one of them is complete. To win, all you have to do is post the correct answer in the comments and then explain, briefly, why the other two are invalid.

If you can do that first, then you win no prize at all other than my recognition and, if you wish, your link at the top of this article.

However, there are a few rules before we begin:

1. No Cheating: Keep your eyes on your own paper. Ideally, you should be able to do this from memory. However, if you need help, all you need should be on Plagiarism Today. No searching other sites for the answer. We are all on the honor system here.
2. No Lawyers: This is for laypeople. Sorry. That kind of advance knowledge is just cheating for this quiz.
3. No Spam Sites: I reserve the right to not link to any site that may be spammy or inappropriate. Keep the sites clean, spam-free and appropriate for Plagiarism Today.
4. I Didn’t Cheat Either: Both of the invalid notices have material problems with them. Since they all report the same “infringement” there are no fair use or other legal questions. There are also no issues of semantics. This should be cut and dry and the reasons are based upon the law itself, not what an individual host *might* accept. (Hint: I don’t cheat, but I do use red herrings.)
5. Have Fun: Though not a rule, it is still important. This is a game so have fun with it, just remember it highlights an important point.

If no one guesses the answer correctly in 24 hours, I’ll post it tomorrow as part of my regular update. If this goes well, I might do similar contests on a regular basis.

Please let me know what you think.

The Notices

If you are ready to play, here are the three notices in RTF format:

DMCA Notice #1

DMCA Notice #2

DMCA Notice #3

Open up each file, take a look at them, pick out the one that is correct and explain why the other two are not.

Once again, the first person to do will be given a link at the top of this article and the eternal praise of all who read this.

Have fun and put yourself in the host’s shoes when looking at these notices. This is what they deal with every day.

Conclusions

Web hosts asked for the DMCA and were some of the biggest beneficiaries of the notice and takedown provision. It removed copyright liability from them and gave them a legal system to remove works that were infringing while removing them from the requirement to search for potential copyright violations.

Regardless, the DMCA is a difficult law to use and it is the responsibility of the host to make sure the notices they receive are valid. However, this is designed as a minor illustration to show what they are up against when reviewing such notices and what submitters are up against when trying to create one.

What is needed is a unified, binding DMCA notice that is easy to use and easy to check. This could weed out many of the errors that come with trying to use/enforce the DMCA and, when combined with hosts who are more savvy about copyright law, could prevent many of the DMCA abuses.

In the meantime though, it is problems like these that we are stuck with and left to figure out.

Good luck to everyone.

(Note: If I made a mistake, I apologize. WordPress was being difficult with uploading and it is hard to work on three separate files like that at once. I checked them before and after I uploaded so there shouldn’t be a problem, but this post turned out to be far more difficult than I thought it would be. Please accept my apologies in advance if there are any errors.)