Copyright, Trademark and Plagiarism in Icons

On June 30, Korean developer Nexon released its latest game, The First Descendant. Described as a free-to-play co-op looter shooter, the game has received mixed reviews, with many voicing concerns over its aggressive monetization.

However, the mixed reviews quickly took a backseat to a different controversy: Plagiarism.

Forbes reporter Paul Tassi took to X (formerly Twitter) to highlight similarities between icons in The First Descendent and Bungie’s better-known competitor Destiny 2.

The similarities are striking, to put it mildly. Some wondered if Nexon was somehow paying homage to Destiny 2, while others accused the company of copying Bungie’s work.

However, a new wrinkle quickly appeared. All the icons in question can be found on an open-source icon site named Iconduck. This led some to conclude that both companies had used open-source icons in their games.

While that would have been a clean and wholesome resolution, it wasn’t meant to be. Others quickly noted that the icons were listed as part of a “Destiny Icons” set attributed to Tom Chapman.

Chapman is the creator of Braytech, a Destiny 2 fan website that offers tools to help players. He responded to the set on X.

In short, Iconduck offered icons (or at least close derivatives) from Destiny 2 as open-source works, which Nexon then used.

This highlights some risks of using open-source creations, especially in large projects. If you aren’t careful, you can get in legal and ethical trouble.

When Open-Source Isn’t Open-Source

According to its site, Iconduck hosts over a quarter million icons. Those icons are licensed under various open-source licenses, all of which permit commercial use.

However, a quick search through those icons shows it isn’t that simple. You can find icons of various copyright-protected works, such as Pikachu, Mario, Superman, Batman, Darth Vader, etc. You can also find many trademark-protected logos, including Google, Apple, Coca-Cola, Disney, etc.

To be clear, there are times when one can legally use such icons. For example, I use social media icons on this site to point to my various presences. However, Iconduck and similar sites indicate that these icons are available for almost any use.

For example, the Disney icon page on Iconduck states that you can use the icon as part of a logo.

That is obviously not true.

The issue is simple: Though the file uploader has waived their rights, Disney, Nintendo, and others still have the rights to their original work. Since many of these icons are copies or near copies of protected works, the rights they are waiving aren’t significant (if they even exist).

However, while a company like Nexon wouldn’t likely use a Pikachu or Disney logo in its game, it’s easy to see how it might have picked up more generic icons with a less obvious origin.

However, that’s part of the problem when using open-source works. You’re putting a lot of faith into the source.

The Hidden Problem with Open Source

You need to ensure three things when using an open-source (or Creative Commons) work.

  1. The Licensor is the Owner: First, you must ensure the person offering the license can legally do so. They need to be either the work’s creator or otherwise hold the rights to it.
  2. That No One Else Holds Any Rights: Second, you must ensure that no one else holds rights to the work. This can be an issue if the work is a derivative of a non-open-source work. For example, although the creator of the Pikachu icon has released his rights, Nintendo and the Pokemon Company still own Pikachu as a character.
  3. That No Other Rights Are Being Infringed: Open-source and similar licenses typically only address copyright. Many of the icons above are company logos or other works with strong trademark protection. However, if used poorly, those icons can still be trademark infringements.

Nexon, for its part, failed to do its due diligence. Sites like Iconduck talk a great deal about how their hosted works are free to use for nearly any purpose but have terms of service that remove them from all responsibility if things go awry.

The Company does not warrant the availability or continuity of the Website or the Services, nor its reliability, quality, completeness, accuracy or whether they are fit for a specific purpose or activity.

Iconduck Terms & Conditions

In short, Iconduck assumes no responsibility, even if the information on their site is inaccurate. It is entirely up to users to perform their due diligence and protect themselves.

The Ironic Twist

Long-time readers of this site will likely remember the name Nexon. In early 2023, the company drew headlines for filing a lawsuit against upstart Ironmace, a competing studio developing the game Dark and Darker.

According to Nexon, Ironmace is a company comprised of former Nexon employees who took copyright-protected work and trade secrets to launch the new company. The lawsuit claimed that Dark and Darker infringed an unreleased game Nexon had been working on.

That case is ongoing. However, in January 2024, an injunction against Dark and Darker was lifted, resulting in the game reappearing on Steam. Ironmace officially released Dark and Darker last month in early access.

This long-running battle angered many gamers, particularly those excited about the game. This earned Nexon a reputation as a copyright bully, targeting a smaller competitor.

While there is nothing wrong with protecting your work, many felt Nexon had crossed the line. Those critics are now enjoying the irony of Nexon using content from a competitor much larger than them.

If you are going to protect your copyright aggressively, you also need to ensure that your work is free of issues. That includes not blindly trusting that “open-source” icons are actually good to use.

Bottom Line

To be clear, none of this is to say that open-source is bad. There are many situations where using open-source work is safe and even standard practice.

However, it is important to remember that open-source work comes with risks. Just because a random website says you can use a work for a particular purpose does not mean you should blindly trust it.

You, as the user, still have to perform your due diligence.

Nexon failed to do that. While it’s unlikely that this will result in a lawsuit, Nexon will likely be scrambling to replace the icons in question and have to deal with the public backlash over the similarities.

However, that backlash likely wouldn’t be as severe if it weren’t for the company’s history. Their aggression against their competitors makes this a case of schadenfreude for the company’s critics.

The worst part is that it was entirely avoidable. All Nexon had to do was ensure they had the rights to the icons in question.

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