At the end of last week, photographer and designer Judy Juracek filed a lawsuit against Capcom alleging that the video game developer used dozes of her images as tiles, backgrounds and other elements in various games. The most prominent of those games being Resident Evil 4 and Devil May Cry.
According to Juracek, the various tiles and elements were taken from her 1996 book Surfaces: Visual Research for Artists, Architects, and Designers. The book comes with a CD of the images, but the images on the disc are not licensed for commercial use without a license, which she claims Capcom never obtained.
To support her claims, she provided over 100 pages of examples with her filing and that included more than 80 different images that she claims were used without her permission in various Capcom games.
To that end, her arguments are very compelling. In most of the examples she provides, it’s clear that the artwork in the game could have only come from that specific photograph with details, lighting and other specific features matching up perfectly.
But if that is not enough, in at least one of the cases the file name that was used in the Capcom game was identical to the name of the same file on the Surfaces CD-ROM. As such, it seems unlikely that that image, or any of the others, came from another source.
However, just because the images came from Juracek’s book doesn’t mean that Capcom deliberately stole them nor that they even committed copyright infringement. Instead, there are a lot of current unknowns in this case that could take it in a variety of different directions.
A Serious Mistake
Modern video games are made up of thousands and thousands of images. Pretty much everything you see in a video game like Resident Evil 4 is a texture placed on top of a three-dimensional object. It’s gotten to a point where we, as gamers, take this for granted.
However, those images still require licensing and video game studios, like Capcom, generally to great lengths to do just that. Normally, they acquire large libraries of images specifically to use for their games, much like how artists and web developers subscribe to stock photo services for use in their creations.
So the question now becomes: How did Capcom come across the images?
The answer, most likely, is not that Capcom ran across a decade-old CD and decide to use images on it (Resident Evil 4 was released in 2005). Instead, it’s much more likely that they either A) Got the images from a third party and believed they had licensed them or B) That sloppiness and time caused the unlicensed images to be included in folders of images that were free to use.
Given the costs and time it takes to make a video game, combined with the legal risk, it doesn’t make sense for Capcom to try and cut corners by not licensing images it uses. Most likely, its process had a breakdown, and whether that was a third party giving them bad information or they made a serious mistake remains to be seen.
In short, someone screwed up. It’s just a matter of finding where the error took place.
The Legal Reality
However, the fact that it was, most likely, a mistake doesn’t change the legal issues. Capcom used the images in at least two video games and, that is most likely a copyright infringement.
Though Capcom will likely try to argue that the use is a fair use, That will be a difficult argument to make.
The use simply isn’t transformative. The images were licensed to be used as references for artists, including those making video games. Instead of using them as a reference, Capcom used the images outright.
Even though the images were only a minor part of the games themselves, licensing such images is customary and Juracek had a process for licensing images for this kind of purpose. According to her complaint, she had done so with “various parties” before.
In short, it was a non-transformative use that did harm to the market for the work. Though fair use is inherently unpredictable, it seems like a long shot in this case.
Another argument that might be used against Juracek is that, in many of the works, her copyright is likely very thin. After all, she only has the rights to her specific photos and not the underlying works she’s taking pictures of. Those works, depending on their age, are either in the public domain or owned by their original creators.
However, it’s pretty clear that Capcom did use her images specifically. Not only are some details so specific that another photo of the same work would look different, but the file name issue makes it unlikely that these are simply very similar photos.
If the photos were provided by a third party, they may be able to target them in a separate case or even bring them into this one. However, their likely ignorance of the infringement doesn’t change their liabilities in this case, though it may be used as grounds for reducing damages.
However, the odds of this case going to a full trial are slim. With clear evidence and a sympathetic plaintiff, the motivation for both sides will likely be to settle and do so quickly. While that can be said about almost any case, it seems even more true here.
Normally, when I head about a lesser-known artist suing a popular company for stealing their work, I am very skeptical of the claims. For every artist that believes they were wronged and wins, there are dozens if not hundreds that ultimately lose in court.
However, Juracek makes a very compelling case. Her examples are both plentiful and very specific. There’s not much question that her images ended up in Capcom’s video games. The question is how they got there.
That will, undoubtedly, be something for Capcom to discuss in their response, but it likely doesn’t change much about the case itself.
That said, this most likely isn’t a case of a nefarious company trying to rip off an artist. It was most likely a mistake and the fact it went almost 15 years without being detected shows just how complicated these issues are.
Hopefully, Capcom and others will take a lesson from this and improve their processes for ensuring that they have a license for the images they use. Not only will it save them a great deal of headaches down the road, but it will help artists, photographers and other creators earn a living from their work.