Surfaces: Visual Research for Artists, Architects, and Designers
Surfaces offers over 1,200 outstanding, vibrantly colorful visual
images of surface textures--wood, stone, marble, brick, plaster,
stucco, aggregates, metal, tile, and glass--ready to be used in
your designs, presentations, or comps, as backgrounds or for
general visual information.
I have a very, very hard time imagining that this is going to get past a fair use argument. Capcom is doing with these images exactly what the author intended. If the author wants to be able to sue for royalties after the fact, then that blurb can only be read as a deliberate booby trap.
Blurbs are not legal documents, and every commercial artist is fully aware of that and has been for a long time.
The collection comes with a CD-ROM of the images — but Juracek said she requires people to license images from her for commercial use by contacting her directly. Juracek said in the lawsuit that Capcom never contacted her for a license.
I might buy this argument if it she was suing the creators of some breakout indie game, but Capcom is a mature corporation with a legal budget and staff. If you rip off one of their products in a commercial context they will not hesitate to redirect your attention from the blurb on the back of the videogame case to the legal small print that says what you may or may not do with it.
Texture CDs were a really common thing back in the day (https://www.youtube.com/watch?v=bsCN0Yx2Vbs) so I don't think the developers were acting in malice when they allegedly stole these graphics.
I suppose it's well within the author's legal rights to sue but it does seem a bit scummy on the author's part to have that blurb but then pull a bait and switch.
I disagree completely, it seems very normal to me that people are encouraged/invited to use something for individual artistic/professional efforts but corporate entities are expected to buy a license.
I strongly suspect most of the complaints here are from people who enjoyed playing Resident Evil or some other Capcom product back in the day and are emotionally identifying with the cool game that they were quite invested in. I also enjoyed RE4, but if it helps just think of Capcom as playing the role of the Umbrella Corporation in this instance.
Huh? Capcom's use has exactly nothing to do with fair use: "the doctrine that brief excerpts of copyright material may, under certain circumstances, be quoted verbatim for purposes such as criticism, news reporting, teaching, and research, without the need for permission from or payment to the copyright holder".
I think what you mean is that Capcom may have believed they had the right to use the images.
As always, the simplest explanation is the most likely: Artist + Deadline = Nobody's gonna know anyway because I like flipped and transformed them.
From the "Look Inside" preview, I'm not convinced the book makes it as clear as it could. The "About the CD-ROM" section includes "the CD images can be used be artists and designers in developing concepts, preparing presentations for clients, and communicating visual information with others". It seems the images can be used directly in some contexts, and "communicating visual information with others" feels very vague to me.
At the very least, a note in this section stating that a licence is required for some uses would be a useful clarification.
> "the CD images can be used be artists and designers in developing concepts, preparing presentations for clients, and communicating visual information with others"
This effectively is a license. It's implied that the copyright holder has not given you further rights than this.
As you say, Capcom may well claim that they are communicating visual information with others.
The defense might press the source of the textures As well. It’s the old if you take a photo of someone’s graffiti, is it your art (the photo) or is the art the graffiti artists still.
Is my brick wall or the marble floor, mansion door or cracked glass the art or is the photo of the item the art...can any photographer take a picture then turn around and sell it?
I guess you always ask for a lot in these lawsuits but the 12million seems high based on the price textured get licenced for today. Not bad for a book from 1996
'Pictures of art' does not apply here. The marble texure is a natural, and unless special, brick walls or cracked glass are not artistic expressions. The mansion door could be art. However, at worst, the texture is a minimal part of an extremely artsy door and still fair use due to the transformative nature.
OTOH, every picture was made with the express intent to make artistic textures. Yes, it is copyrighted by the photographer and can be sold.
One expects Capcom's legal department to be more diligent than folks here making armchair judements after skimming Amazon. You think the implied license is murky yourself -- would you jump to the conclusion that the art is free for all purposes? Or would you do your due diligence before using these resources?
If the legal department cleared it, they've made a poor decision, but I can see this slipping through the cracks - for instance, a legal layperson making an assumption based on the "can be used" text, or the images getting used internally (as the licence seems to allow) without properly keeping track of the sources and the usage restrictions.
I don't disagree that Capcom may have needed a commercial use licence, and that they should have done their due diligence, but I still think the book could have been clearer on this matter.
Or just as likely, an employee in their art department, under typical never-ending gamedev crunch time. just "doing whatever it take to get it done" to get their manager off their back...
If they cleared this, that's a horrible decision. I doubt they did. Its pretty common for employees to do their own sort of back of the envelope analysis or to pass off copied work as their own (especially if they modified it a bit).
They do, which is why I'd love to see a full copy of the book/CD - the complaint doesn't quote the invitation to contact for licences, and in various online previews I can't see any express wording to that effect (though of course it's implicit if you don't have a licence or other legal reason to use). The "About the CD-ROM" section in the book only says "Original images can be obtained from the author. Write to [PO Box]", which I don't see as being the same as "invit[ing] interested persons to contact Juracek if licenses were desired". I'd be curious if more explicit wording is included elsewhere - it wouldn't necessarily change the outcome, but it'd add strength to the case IMO.
I also find the logic at paragraph 17 somewhat strange:
> The parties were required to contact Juracek to obtain high resolution digital files as the CD-ROM files were not high resolution. For the sake of clarity, anyone seeking a license for the photographs from the book or CD-ROM were required to contact Plaintiff to obtain the photos in a high resolution digital file suitable for commercial use as all rights were reserved as set forth in the copyright notice.
What if you don't need high-resolution images for your particular use? Noting that they had to contact the author to obtain higher resolution images seems irrelevant when determining if they had a licence to use the images present on the CD (unless it's alleged they used the higher resolution images and must have obtained them from another source, which I don't believe is the case).
I think the basic argument here is that the book and cdrom are marked as copyright judy juracek, all rights reserved.
There are some specific contemplated and limited uses in the blurb/text. It's not clear to me how those play against the plain fact of the copyright, but I doubt that claiming an author needs to repeatedly claim copyright for it be valid is going to get far.
Just because you only need low res versions, doesn't mean you're exempt from copyright. Juracek without doubt owns copyright on those images. Capcom are going to have to convince a judge they had permission to use the images from the copyright holder. It seems unlikely there was an explicit rights grant on the CD for use in a commercial game, Capcom are going to be trying to lean heavily (too heavily, it seems to me) on that vague wording in the marketing copy to assert they have rights to use them. Juracek could have made their limited rights grant more explicit, but copyright generally works on an "if you do not have explicit permission to use a work in a particular way, you have only very limited rights to make a copy of it" basis.
> Just because you only need low res versions, doesn't mean you're exempt from copyright.
That's not what I was trying to say. What I meant that the claimant's argument is simply "You did not have a licence to use the images on the CD in that way". Presenting the argument as "the parties were required to contact Juracek to obtain high resolution digital files [and they did not do so]" _seems_ to add a particular significance to the high resolution images, when it's, as you say, irrelevant (what matters is whether they obtained a licence, not the high resolution images). Unless I'm missing something, you could replace paragraph 17 with:
> As a result of the book and photographs and CD-ROM, Juracek licensed copies of various photographs to many different parties who sought to use the photos commercially and the book became a very popular way for architects and designers to obtain exclusive high quality examples of unique decorative surfaces and features. Anyone seeking a license for the photographs from the book or CD-ROM were required to contact Plaintiff to obtain a commercial use license as all rights were reserved as set forth in the copyright notice.
and have the same effect. It just seemed like a needlessly complicated way to make the same argument.
this is a "you can use it in private, but not release it to the world" license. these things are common and have existed for a long time. one lucrative market for this type of license is Hollywood storyboards.
I own quite a few of the books with 'old' images in - ie ones that have been collated because they're in the public domain now, and everything is free to use.
I wonder if there was a particular licence in this book? Like if I buy an image from a stock site, generally it's "fine for the web as part of a 'something'" but I need an extended licence to sell it on t-shirts or book covers. Maybe something like that? But I agree that feels like a stretch...
the pictures in the books aren't public domain and, according to the article "Juracek [the photograph] said she requires people to license images from her for commercial use by contacting her directly"
Well, what she says now and what is shown to the customer at purchase/before use is what matters. That's why repos have a LICENSE file - you need proof that someone improperly used the work without adhering to the license or were reckless enough to not read the license before reusing the work.
Isn't it largely the other way around, the accused would need to show that they have some suitable license or successfully argue that the have fair-use grounds (the latter sounds unlikely in this case to me)?
Maybe it's a distinction without a difference in civil matters, since there's not really a presumption of guilt or innocence AFAIK in civil.
No, you need explicit permission to use copyrighted works outside of fair use exceptions. Therefore it’s up to the customer to prove they got permission from the correct source.
A license is a permission to use something in a particular way. If there is no license available for a thing, then you have no permission to use that thing.
I would say that optional Copyright registration and spray and pray is the only viable monetization path for visual artists. Register and make your art available for others without a ton of watermarks or anything. Find them with reverse image search later.
It is very underused because the artists are largely segregated from the legal system, due to lack of exposure alongside real or imagined costs.
This extortion strategy worked pretty well for Getty a few years back (not sure if they've since changed the practice). Probably a bit easier for a big firm with a bevy of lawyers than a lone artist, as you note.
When this book was published in 1996 this sort of model for reference/inspiration was very common in the graphic design world. I had access to a library of books like this. Part of my job was to either work with an art buyer to get the art into production (having all ready done the production from the CD-ROM) or create a suitable replacement if we couldn't get a good price/were feeling cheap.
While this seems like a convincing case, at what point is it morally acceptable to produce new art derived from existing work?
Would it have been fine if Capcom had re-created near identical patterns without use of the book's original digital files? It's a reference book after all.
Not saying Capcom should profit without crediting the original artist. But visual art remixing textures feels more grey area to me than copy/pasting code or someone's writing.
> But visual art remixing textures feels more grey area to me than copy/pasting code or someone's writing.
Artists use reference material all the time, and as long as the new work is the product of the new artist, it's all good. But directly copying art and then modifying it is still copying copyrighted material.
My understanding is in the music remix world, if you want to feature a song in your remix, you should get a license.
Similarly, my brother makes AMV videos and as I understand from him, the music rights-holders (not the anime rights-holders, interestingly...) will then claim all the monetization on those videos.
> But directly copying art and then modifying it is still copying copyrighted material.
As my uncle comment suggests ( https://news.ycombinator.com/item?id=27426639 ) it's not clear cut. Just because you hit ctrl-c then ctrl-v on an asset doesn't mean what you're doing is automatically copyright infringement, it might be fair use assuming you changed something to a point where it's a derivative work based on the original work.
> the music rights-holders (not the anime rights-holders, interestingly...) will then claim all the monetization on those videos.
This is a Content ID Claim, and it's a system YouTube themselves made up so that companies can automatically start garnishing monetization earnings on videos that use their work in any capacity without having to do DMCAs themselves. In no way is this tied to copyright or fair use.
> In no way is this tied to copyright or fair use.
Contenting ID it _totally_ about copyright. The only reason Google built it is to reduce the exposure they have to claims of copyright infringement, by easily (way too easily it turns out) allowing rights holders (or anyone claiming to be one) to post-fact claim earnings from infringing use of copyright material. Just because Google demonetises your video and sends a share of ad revenue to Sony/Warner/whoever, that doesn't mean you _didn't_ infringe copyright.
>Just because Google demonetises your video and sends a share of ad revenue to Sony/Warner/whoever, that doesn't mean you _didn't_ infringe copyright.
Nor does it mean you did infringe copyright. There's no direct correlation between one and the other. You can't use the function of Content ID to infer things about how Copyright works.
Content ID may be ABOUT copyright, but in no way is it TIED to copyright.
As an artist I frankly wonder what's the point of these texture books if you can't re-use the textures in your own works. It's like an audio sample pack where you can't use the samples, or an algorithmic book where you can't reuse the algorithms ...
You can re-use the textures in your own works. You can even create a new original work, using the textures as a reference, and pay nothing. The only thing you can't do is use the reference textures directly in a new work without securing an additional license.
I'm pretty sure that, by volume, most art is not sold in a commercial environment and its creators could use the book without concern.
Different audio sample packs have different licensing terms - some confer full rights to use them in an audio production, some only in non-commercial productions with commercial requiring a license to be purchased.
Similarly, in this case, it's a reference book - and there just so happens to be verbiage that says "for commercial use of any of these, contact the author".
What kind of artist are you? As a painter, I can tell you there's use in having textures to reference while you draw things yourself. It's more like buying an image off getty to get the watermark off but not paying the extra 20 dollars for commercial use.
> Not saying Capcom should profit without crediting the original artist.
Capcom "crediting the original artist" would have made this even worse for them, it'd then be a slam dunk admission of copyright infringement.
You cannot use a copyright work for free then "credit the original artist" to shirk your legal responsibility to negotiate a license to use the work.
There is no "grey area" here. (Arguably there _should_ be, and the hardline copyright stance the actual law takes is mostly Mickey Mouse's lawyers and lobbyists fault, but that's the world we live in...)
I think the answer to your questions and thoughts can be responded to with "It depends." Truly, these cases and their outcomes can not be predicted, no matter how clear cut they appear to be.
Here's a great summary of some of the best appropriation cases involving art, and their outcomes:
I figure this has to happen all over the place. One might hope texture artists are super careful about copyright but realistically the way these things are built someone's gonna use a photo in a photoshop layer somewhere they got off google image search. Capcom just got caught.
If someone trained a neural network to create wood textures, and 1 of N training images came from this book, would wood textures generated by this NN infringe on the author's copyright?
To what extent does the size of N change the answer? (I'm sure 1 is no good, but is 10 enough? 100? 1000?)
My understanding of the situation in US copyright law is that the synthesized images would clearly be derivative works, and thus copyright holders have rights to the (portion of the) output which is derivative.
However, such a use might be considered fair use. (Fair use is not an exception to copyright itself; it just limits what the copyright holder can stop you from doing) There is no perfect checklist of what constitutes fair use, but there are established criteria that weight in favor or against fair use.
Substantiality may weigh in favor of fair use since only some of the input images appears in the output (and less so if mixing many together)
Affect on the original work may weigh against fair use -- if you can use the texture synthesizer instead of buying the original texture reference book.
I think there's limited precedent that machine learning models can claim fair use of their input text, but I'm guessing the specific case of reference textures => texture models may be hard to argue as fair use (unless you have rights to at least most of the inputs)
If they find their image in the training dataset via discovery, that would prove it.
I think the trickier part is figuring out that your image was used in the dataset or convincing the judge that you have standing to compel that discovery search. If you have a bunch of get requests from an AI company's corp IP that could do it.
Once you've got your Neuralink in, they'll be able to do the same thing for anything you create. Moderately influenced by a piece of music you heard when you were three years old? Pay up!
Once the model is working, the training set can be deleted - but it would be hard to modify the model in the future without.
I believe there are ways to add to a training set without retraining on the whole thing, but it's trickier and the math is way over my head. I think in many cases people just retrain over the whole corpus if they want to iterate on the model - so most commercial ML models probably hold on to their training datasets and consider it a business asset.
It's very doable to add without it and my experience is I've often worked with models trained online where the data has a retention of a few months so any old enough model will have been trained on data points that don't exist anymore. Large tech companies tend to not keep all data for a mix of storage cost, lower value for some domains (for recommendations freshness is quite useful), and various privacy concerns. Privacy alone means you should have ways to delete data entirely for many problems. If you train with user data and the user requests to delete all info on them through gdpr that includes your training data. I can't remember the amount of time gdpr allows for deletion (I think 30 days or maybe 60), but if you keep a lot of your data with a lower retention than that by default that makes deletion a lot easier.
There is other data that has naturally very long retentions (sales orders) where even with deletion requests some aspects should be kept just for financial compliance.
There are ways to hornswoggle a trained machine learning model into generating new outputs that "kinda sorta" look like bits and pieces of an input that was used for training. It's tricky, and not always reliable, but it would be a reasonable thing to attempt.
This is why you shouldn't use sensitive material as training data. If you're a startup and you're using all of your customers' private data to train a single model that then gets used by all of your customers -- guess what, you're doing it wrong!
It's the same reason you wouldn't teach your five year old how to read by letting them pour over you and your spouse's text message history. I mean, you could, but then you shouldn't be surprised when they inadvertently utter something embarrassing that they don't necessarily understand, but whose origin is obvious to everyone else at the party.
I'm a lay person, but selling this book highlights:
"CD-ROM included: easy-to-use screen resolution TIFF files of every image"
If I'm buying a $200+ book with an "easy to use" CD of the images - they'd better be highlighting very very clearly that I can't use these in projects.
The subtitle of the book is "Visual Research for artists, architects, and designers" not "free pictures to include in your projects" so I don't think you would have bought the book thinking it was okay to use it in a video game.
I agree that the product description should be clear about acceptable use, but at the same time, the onus is on the person purchasing the product to ensure it's appropriate for the intended use.
If I'm buying something like this with the intention of redistributing the artifacts, I'm going to be scrutinizing the hell out of this and possibly choosing not to buy based on the ambiguity in the product description.
I'm gonna "oh please" your "Come on". Take two seconds and google for a royalty-free image licensing agreement. The first one I found is six pages long, and contains all sorts of long and complicated legal fripper frappery.
Something says Copyright (c) Somebody Year. Don't copy it, particularly for commercial use, unless you also have one of those 6 page "I'm allowed to do this without paying anything more" agreements.
Would that wording lead you to believe you have the right to republish the entire CDROM?
Every audio CD I own has "easy to use high resolution audio files" on it, I've never been under the misapprehension that I'm allowed to "use those in projects" without negotiating an appropriate license. I do know I'll "get away with" ripping those CDs to use on my iPod, or putting them in as background music to a limited viewership work presentation, but that if I "share" those files I'm risking a copyright lawsuit.
> It would take 10 seconds to put in similar size font - not to be used for commercial use of any sort (which is most use these days).
That's not their obligation. The obligation is on the person who intends to use the work in a commercial context, to ensure that they have license to use it.
> The obligation is on the person who intends to use the work in a commercial context, to ensure that they have license to use it.
In _any_ context, not just commercial context.
Copyright is "default deny". Unless you've been granted specific permission to copy a copyrighted work you cannot copy it for any reason apart from a few very tightly defined "fair use" exceptions - criticism, parody, news reporting, research and scholarship, and teaching. And keep in mind that "works" include pictures or photographs and are are by default copyrighted to their creator. You con't need to "register your copyright", although it's smart to as a way to help prove ownership it's not a requirement. Any photo you take or picture(/texture) you draw automatically is copyright to you.
It's not art meant for viewing pleasure, as far as I understand the intended use is rather as a reference work. I.e., the artist who uses the book should base their art on the photographs in the book (but of course without copying, unless they get a license to do so).
I should base my art on the photos without copying. If it's just for me to look at and not copy, why the CD? I can look at the printed picture to base my art on that.
Here is the amazon blurb "ready to be used in your designs, presentations, or comps, as backgrounds or for general visual information"
As a visual artist and coder, it is somewhat sad to see how this HN crowd all seem to question the license or the artist. If it were a coder that had published code in a book, and Capcom clearly used it in a commercial game, this discussion would look a lot different.
I think if you bought a coding book and it had functions, you’d likely be comfortable using that code as part of a bigger projects, with some modifications to suit your needs.
As coders we don’t want to get trapped into a very high cost infringement event when it appears we’ve paid for something but the terms aren’t clear. $200 for a book/cd of textures seems weird that you wouldn’t get to use them.
Can you imagine buying a font for “inspiration” but to use it requires another license.
This also gets into a interesting grey area. They’re licensing photos of a cracked glass or a mansion door and all sorts of textures, but they didn’t create the door or the glass. some of the sculptural elements weren’t created by the photographer. As a photographer myself you can see where sometimes things get a little fuzzy.
Poor Capcom! If only there were somebody, anybody, they could have asked about what might happen if they ignored copyright terms and also the photographer's request that they pay up. If only they had ever heard of possible trouble from lifting others' work.
After all, they have always been happy to let anybody at all sell jailbroken copies of their own games, online!
There is no clear answer if you are looking outside of what a judge will decide. The book says -
"the CD images can be used by artists and designers in developing concepts, preparing presentations for clients, and communicating visual information to others. Although the images are primarily intended for on-screen display, they can also be printed on either a black and white or color printer.
It's clear, only "preparing presentations" not using in presentations.
Equally the book buyers comments all think you can use the photos when making things. So clearly the CD gets sold for wink wink reasons and she would have to know that, but we also all know Capcom have had multiple people using the photos without everyone having a copy and they also know they are not a person just using the photos in a one off illegal presentation.
Legally it will be complex, we will see. It is interesting she allowed formatting shifting, you could print the photos. Was that legal when the book came out or was she adding additional rights and how does that effect the default copyright.
I really, really doubt it. I bet Capcom's lawyers are frantically preparing a settlement proposal for substantially less than was requested, and that they are prepared to write a check for that sum today, instead of going to court.
Juracek's lawyers know this, and that's why they're saying nothing. Saying nothing maximizes their ability to agree to whatever flowery no-fault language Capcom would like attached to the settlement, because those words cost nothing.
I actually felt some sort of weird stability to see that in 1996 people also just put meaningless words together and pretended they had meaning.
But it was strange to leave that open, everywhere else it's a tight language to not allow the extended use, while not explicitly explaining it so it didn't stop book sales.
I'm pretty sure the book says "copyright (c) whatever". Absent a lengthy legal agreement actually granting commercial usage, it seems pretty dumb to do commercial usage.
Good luck with your "because I feel like it and it makes sense to me!" approach to copyright law!
