use copyright images under "fair use"

[shanerichard]

i recently built a website banner, Quality Flash Games - Quality Flash Games

it has famous iconic images from video games, and my page is totally filled with video game screenshots, i looked around on other sites, and notice plenty of this going on naturally, some of them big game sites, some smaller..

i was cocerned whether or not im tinkering on the edge of "fair use", i dont want any trouble

i placed a notice in my legal section on the page regarding use of low resolution iconic - obviously trademarked video game characters on my banner and screenshots used throughout site to indicate information about a game to play..

id like feedback as to whether i have understood my rights to imply "fair use" and whether or not generally think i will be ok...

thanks for the feedback, im a not for profit site, so i hope everything is ok

[wige]

Honestly, I think you are past the edge for fair use. For starters, your header does not fall under fair use, because you are using trademarked/copyrighted images to sell video games or products not affiliated in any way with the companies whose images you are using. One of the key factors in fair use is that the image is being used for descriptive purposes only - the images in your header (which incidentally also do not seem to be of reduced resolution) do not describe your products.

Another issue I see on your site is outright trademark infringement. You are selling Flash "ports" of commercial games that are claiming to be the original game, using similar graphics and the same names as the original game. When ports of popular computer and console games were created for use on PDAs, the companies sued and won, requiring that the games be substantially different from the original game. The games must have their own name, and be distinguishable from the original intellectual property.

[shanerichard]

well im actually not selling anything, the games are all available to embed freely to myspace, blogs or your website.

so i feel comfortable about that bit, since im sure the most popular gaming sites arent offering any money to anyone to use them themselves, also there is a fair use defence that can be used, and that is that you honestly believe that what your doing doesnt violate fair use, i searched up the content i displaed in wikipedia that described the use of video game images and screenshots and placed it in the legal section of my site, i feel that section defines defines fair use clear enough that i would be ok, considering what ive done doesnt impede the original copyright owners ability to generate money in anyway, there is more in that secion on website.

as for the screenshots in the banner, they are definately not reuseable for anyone interested in selling them, i think the resolution of them has been reduced at least 30 percent..

also the use of them is very limited taking only a small portion of the screen and are used in a descriptive sense to display what content maybe found within, ie, the characters displayed inform the user that free flash games with those characters are with the site

i would like more feedback though about what you consider selling, obviously if i was trying to sell the flash games i would be definately doing something wrong, cause im sure most of the games are provided only to display on your myspace or blog or website,

most of the top flash game sites supply the embed code to these games freely, so whats the go?

are they all in violation, should they all be sued, for every gif banner and game screenshot, let alone their games
?

take it all down ?

lol, im just saying that my site does nothing that others do, accept try to address the consideration of fair use itself, seamingly no others even bother, i hope that i can feel more comfortable with my site if it gets more visitors and attention,

personally i have no bother taking the banner down, and creating some public domain collage of images that have very little relevance to my site, i could use flash game characters from screenshots such as METAL SLUG

do you think if it came to it, that screenshot images of the popular characters found in the FREE flash games would be considered more appropriate in terms of free use,

but furthermore what do you propose about supplying to play games found only at free flash games sites that are available to embed freely to blogs, myspace, facebook and even websites across the world

what about google and yahoo, and widgetbox

they all supply games of this nature,,,, are they liable too?

[shanerichard]

thanks again for your reply hopefully we shall get to the bottom of all this, so that developers can take heart knowing they are free of recourse creating top quality sites of different types that rely heavily on the reproduction of what would be naturally considered free material, and material that is seaminly in the category of fair use

[cw1865]

You have the trademarks of various companies in your logo and I think that is where you're not only over the edge but a little over the top. That is going to get somebody's attention because its so prominent.

[shanerichard]

You have the trademarks of various companies in your logo and I think that is where you're not only over the edge but a little over the top. That is going to get somebody's attention because its so prominent.

mm, i was hoping that since many other sites do it mine would be fair use, however i was concerned hence the thread

i wonder if anyone sees this and just laughs at the question

Is this fair use..

well i suppose at this stage i should start thinking about designing a banner again,

do you think i could use screenshots of characters found in flash games, i could probably fiddle around with games in full screen and get decent enough resolution screenshots of explosions characters, some scenery or something perhaps some of the less noteable, maybe squeeze a nice Metal Slug Dude in there and others

[shanerichard]

thanks for the candid opinion, i guess you have had experience examing the fair use policy in the US law to draw on your opinion?

im hoping to get interpretations of that too

[wige]

well im actually not selling anything, the games are all available to embed freely to myspace, blogs or your website.

so i feel comfortable about that bit, since im sure the most popular gaming sites arent offering any money to anyone to use them themselves, also there is a fair use defence that can be used, and that is that you honestly believe that what your doing doesnt violate fair use, i searched up the content i displaed in wikipedia that described the use of video game images and screenshots and placed it in the legal section of my site, i feel that section defines defines fair use clear enough that i would be ok, considering what ive done doesnt impede the original copyright owners ability to generate money in anyway, there is more in that secion on website.

Ok, I wasn't sure if you were selling or not, but it really doesn't matter. For screenshots of the games themselves, you would generally be OK, provided that you are posting the games with the permission of the creator of the game. As a marketer/reseller/whatever, you do get some latitude under fair use.

as for the screenshots in the banner, they are definately not reuseable for anyone interested in selling them, i think the resolution of them has been reduced at least 30 percent..

also the use of them is very limited taking only a small portion of the screen and are used in a descriptive sense to display what content maybe found within, ie, the characters displayed inform the user that free flash games with those characters are with the site

This is like saying that you sell Pepsi, but putting the Coke logo in all your ads because it looks nicer and sells better, and anyway, you reduced the size by 30%. In order to qualify as "fair use", the first requirement you must meet is that the image is being used for descriptive purposes. All other considerations such as size, resolution, resellability, etc are secondary.

Your site does not have any of the games depicted in your logo. Therefore, you can not claim "fair use" regardless of any changes you have made to the actual image. You are using the copyrighted image to associate yourself with the copyright holder, when no such relationship exists. The exceptions of fair use can be demonstrated by a few examples: You are writing a review, so you include screenshots or images of the characters; You are selling the game, so you include promotional or in game images to attract attention to your selling of the game; You are writing an article about an older game for an encyclopedia or other publication, so you include images of the game and characters in the article. I can't see how your site would pass this test.

most of the top flash game sites supply the embed code to these games freely, so whats the go?

are they all in violation, should they all be sued, for every gif banner and game screenshot, let alone their games
?

take it all down ?

lol, im just saying that my site does nothing that others do, accept try to address the consideration of fair use itself, seamingly no others even bother, i hope that i can feel more comfortable with my site if it gets more visitors and attention,

Just because everyone else is doing something wrong (many such sites are outside the US jurisdiction) does not mean you should too.

do you think if it came to it, that screenshot images of the popular characters found in the FREE flash games would be considered more appropriate in terms of free use,

Yes. The images you show must reflect the nature of the products you are actually providing.

And again, there is another problem that you may encounter with the games themselves. For example, there is a console game called Asteroids. This game is very well known. You have a Flash game on your site which has the same name, same art style, and same gameplay. The only difference is the background programming. This is considered an emulation, and is a violation of copyright as the gameplay and graphic style, as well as the name, are considered copyrights and intellectual property. There were numerous cases in the late nineties where video game companies went after developers that made emulations of games for PDAs, and were successful in quashing those applications.

[shanerichard]

ive taken the banner down, i will restrict use of iconic images to be used in reviews etc, pretty up a poge here and there, and the iconic images are characters from games playable on the site

sonic, tails, batman, mario, kim possible, ryu, they are characters depicted in games playable on the site, i live in australia so i dont know much about US legislation, but since a large majority of visitors will be from there, i endevour to comply to strict regulatory evironment

as to taking down games that are provided as is for free to embed in your website, myspace, blog etc, from major sites, and i do track them to serving in USA.


i feel comfortable that im not doing anything wrong, since i would have the fallback of pointing at the claims made by site providing the game

since i am a lay person, i wouldnt be expected to know much more about the process and difference in game creation and ownership, just that ive been shown in black and white that i can do it

[shanerichard]

i hate the banner i have now too, i just whipped something up in about 4 mins its ugly, i really do need to build something nice, if you have screen resolution of 1280 - 1024 you can see the results of what forums have done to my sleep,


hahaha, anyway thanks for your help, i didnt think the site would be so touch and go under legal violation, pity that people can all steal mp3 off the net, but i can use an image or mario in my header