In-Game Photography: Who Owns The Pic?

What is the name of your state?Hello everyone, I have recently been faced with an issue of copyright that I would like your feedback on.

This discussion to apply to any mods played under Steam.

For the purposes of this discussion, I'm going to call myself an "in-game photographer". In the past I have spectated clan and 1 vs 1 matches, and have taken photos and caught some pretty neat pictures in the process. These photos could be at creative "angles", posed pictures (player jumping through air).

Here would be an example: Sample Photo
This photo will never be recreated. It is a picture of a moment in a fixed place and time, and could never be reproduced again.

I may even use some of these "photos" in derivative graphic designs. These could be in the form of wallpapers, banners, web interfaces, forum signatures, etc.

The problem I am trying to resolve is this. When a photographer takes a picture of the Trump Tower in New York, does Donald Trump own that picture? Generally, you would assume a photographer owns that picture since it is a "visual interpretation" of the Trump Tower. Then that photographer could go and make posters, edit the photo, etc and make money from it.

What if I were to do the same thing, but using in-game screenshots? I understand that the game-maker owns the engine,models, textures, etc. The game-maker would in no way be able to reproduce the photos that I took. The photos were taken in multiplayer action, and I am capturing moments in time.

So where is the line drawn? I have no plans to commercially use the in-game photos, I have only used them as part of clan site articles, gallery features, etc.

Who owns the in-game photo? And why would it be different copyright then a photo of Trump Tower?

And more importantly, what kind of agreement could a graphics designer (and big fan of the game) and a game company come to if I were to create commercial posters using game images and my creativity? If any?

On a related note, if I designed a custom level/map, who owns that? Me or the game developer? If I create custom models and skins, who owns that? And most importantly, who would own "in-game photography" of my custom level/map and/or custom models?

The thing is, how far can they enforce this? What if I write a song with Counterstrike lyrics? Or using samples of gunshots in a mix? Or fabricate a replica of a sentry gun out of steel? What if I create artwork in Photoshop based on TFC and someone wants to buy it in the form of a printed poster?

Valve, the developer of Half-Life and mods based on it, Counterstrike, TFC, etc. includes part of the EULA;

"6. USER GENERATED CONTENT
"User Generated Content" means any content made available to other users through your use of multi-user features of Steam and may include, but is not limited to, chat, forum posts, screen names, game selections and player performances. You expressly grant Valve the complete and irrevocable right to quote, re-post, use, reproduce, modify, distribute, transmit, broadcast, and otherwise communicate, and publicly display and perform the User Generated Content in any form, anywhere, with or without attribution to you, and without any notice or compensation to you of any kind."

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I do want to make clear that I have no intentions of selling my work, and I am not intending to set a court precedence. I appreciate all intelligent and educated responses. I am writing an essay on the matter and all mature contributions are appreciated.

This photo will never be recreated. It is a picture of a moment in a fixed place and time, and could never be reproduced again.

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Now that's not true. The "photo" was generated by a computer -- if a computer could do it once, it could do it again. Unlike life, there are only a finite number of possibilities in a computer simulation. It might be really tough to reproduce, but "could never be reproduced again" is overstating it a bit. That's not really relevant to your analysis, but just thought I would nit-pick.

When a photographer takes a picture of the Trump Tower in New York, does Donald Trump own that picture?

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Only if Donald Trump paid the photographer to take it, and the photographer was either an employee of Trumps, or had some other type of contractual obligation to give ownership of the picture to trump.

If YOU took a picture of the Trump tower, you would own the picture, and could pretty much do whatever you wanted with the picture -- reproduce it, modify it, sell it, etc. Now, if the picture was taken and then later marketed in such a way that it implied that the picture was an "authorized" souvenir or something, then you might have a problem -- but that would be a trademark issue, and not relevant to the "ownership" of the picture.

What if I were to do the same thing, but using in-game screenshots?

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Ahh, not the same thing at all.

I understand that the game-maker owns the engine,models, textures, etc.

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The game maker may own more than that. You have to realize, even though the game moves along due to human input, in reality it is the computer program itself that makes the display -- and since the computer program (and object) code are covered by copyright, the output is as well -- I don't remember the names of the more recent cases, but you can look up Atari v. Oman, which was one of the early cases that defined what was "copyrightable," and found that the display WAS a creative work and therefore copyright extended to the display.

The game-maker would in no way be able to reproduce the photos that I took.

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Again, this is a computer program -- there are ALWAYS a finite number of possibilities -- so this statement, while maybe practically true, is not factually true.

Who owns the in-game photo?

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I am not sure that this has ever been tested in the courts. Based on the existing case law, since the image was created by the software, the holder of the copyright to the software would also hold the copyright to the "in-game camera" image.

And why would it be different copyright then a photo of Trump Tower?

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It's different because you are NOT taking a photo -- you may call it a photo, the program may call it an "in-game camera" or the like, but it is NOT a photo -- it is simply the output from the computer program for a particular instant. And since it was created by the computer program, well, see above.

The more important question is "does anybody care?" If you are not out to make money, and Valve or whoever isn't willing to sue you, then what difference does it make who owns the materials?

Most of the rest of your questions would be better answered by perusing the EULA. A lot of this stuff has simply not been tested in the courts, so there are no "bright line" rules to determine what is "okay" and what is not. Until someone decides to take this stuff to court, it's all kind of nebulous.

Thanks for the information, that is a great help indeed.

But what of "derived works"? When does copyright end when the original artwork (in this example let's use the screenshot) becomes something else, through digital manipulation?

Where does the copyright end? Where is the line drawn between a "derived work" and blatant ripping?

I looked up Atari vs. Oman on the web. Here is the quickest synopsis at this URL; Atari vs.Oman. The case was originally about the Copyright registrar refusing to allow copyright on a game software stating "there wasn't enough originality in the game to warrant copyright". Eventually the game developer won the case proving "a measured applicable modest degree of creativity standard". Or simply put "There is enough originality in this game to make it copyrightable."
If this is the case, could a derived work, even if it is based on an existing game, have copyright of it's own? After a demonstration of reasonable creativity and originality displayed by the artist?

In one case, I had taken a picture of myself screaming (fake, he he) and used it as an avatar on a forum. Later, I found it on a site using my face on a button to sell t-shirts! They had liked the look so much they couldn't resist lifting it off the forum they found it on. That really bugged me, and is an obvious rip. But what of the guy who used the pic again, but only of the screaming mouth part that wasn't so obvious? That didn't bother me as much, but was not as clear a rip, and more of a derived work?

In the case of the Trump Tower photo, if someone took my picture and blended it with a desert photo they took, so that it appears as though the desert is overcoming the building, what claim would I have to that "collage"?
And isn't the basis of graphic design in many cases "collaging" existing pictures? How do they get away with copyrights? Who owns the new work then?

Without going point-by-point, the general rule is that a derivative work is owned by the creator of the derivative work -- but this "general rule" gets complicated in a hurry when the original work is still covered by copyright, and the derivative work is "unauthorized."

The original author of a work has the right to control the creation of derivative works -- you don't have the "right" to create a derivative work from a copyrighted work without permission from the copyright owner.

Basically, there aren't many "bright line" rules that tell you what is and what isn't acceptable in copyright. A derivative work, authorized or not, still may not be able to be copyrighted as a seperate work if it is not "transformative" enough. If you only use part of a work instead of the whole to make a derivative work, then you may be allowed to do so under "fair use," with or without the permission of the original owner. Fair use analysis is a whole other animal.

If you want to use these in-game camera screenshots, your best bet is to contact the game manufacturer and ask what they think is okay -- if they say its okay, then it is, regardless of what the "actual" rules are under copyright. I know the Microsoft game licenses (for flight simulator and the like) expressly ALLOW the use of screen shots in things like calenders, etc. -- even if you are going to sell the calenders -- as long as the screen shots are used in such a way that they don't interfere with Micorsoft's trademark rights.

But that's Microsoft granting a license to use otherwise copyrighted works -- it doens't mean that such works are generally unprotected by copyright or anything.

Thanks for your input. I guess the determining factor in anything is what you agree upon when using a piece of software, agreeing on the terms, etc.

If I ever were to go commercial with some artwork based on a game, I wouldn't try to do it on my own anyway. I'd contact the game developer and pitch them the ideas, and show them the artwork, and work with them instead. Just like Todd McFarlane created action figures based on the Spawn franchise, I'm sure some agreement could be reached that would be beneficial to both parties involved.