back to article Photographer seeks $12m in copyright damages over claims Capcom ripped off her snaps in Resident Evil 4 art

A US designer has sued for damages of around $12m amid allegations that Japanese games developer Capcom breached copyright by using her photos in titles including the massively popular Resident Evil. The lawsuit [PDF] alleges that Capcom used around 80 images – originally photographed by professional scenic artist and designer …

  1. Ol'Peculier
    Stop

    The old excuse:

    But it's on the internet - it must be free!*

    *not...

    1. Brewster's Angle Grinder Silver badge

      We don't know how the texture artists got it. But this stuff gets passed round the internet. Which is not to say they don't owe the photographer. However it's not impossible they thought they had a legitimate licence.

      1. lglethal Silver badge
        Go

        From reading elsewhere...

        From reading elsewhere, the images were published on a CD attached to a book that was basically a "A book for designers by a designer". It also seems that there was an implicit licence that you could use these images for your own projects. But, and its not clear in any source I've read, if there was an actual separate requirement for a different licence for commercial usage.

        It's also not clear if Capcom took these images from another database of textures. And as such, they had a legitimate licence to a texture database, but the owners of that database did not have the correct licence (or where not using the licence correctly).

        So there's still a lot more to come out on this topic, and I wouldnt be surprised if it wasnt as clear cut as a lot of commentards below are implying...

        1. Brewster's Angle Grinder Silver badge

          Re: From reading elsewhere...

          "And as such, they had a legitimate licence to a texture database, but the owners of that database did not have the correct licence (or where not using the licence correctly)."

          That was the kind of situation I was imagining. And permitted uses (especially for derivative works) vary by jurisdiction so it may be this was legal in Japan and nobody realised it had become unlicensed once distributed in the States.

          However I don't think anyone can contest they used these images. And unless there was an explicit licence, Capcom will be dependent upon their lawyers to find a loophole, even if they are "innocent victims". I suspect the best they can hope for is a reduction in damages if they used them in good faith.

          This will likely be an example of copyright law for decades.

        2. Anonymous Coward
          Anonymous Coward

          Re: From reading elsewhere...

          "implicit license" is something you made up. That does not exist. Anything that's not granted explicitly by the copyright owner is not allowed. If Capcom didn't do their own due diligence and used a shady texture database - tough for them. But clearly, they're perfectly free to sue those database owners for damage.

          Before it's mentioned, fair-use also is explicit in its limitations and I don't see how it could be applied here.

          1. lglethal Silver badge

            Re: From reading elsewhere...

            It apparently (from reading other reports) had a statement along the lines of "You are free to use these textures in your own projects". My understanding was that that is an implicit licence. Are you saying its an explicit licence?

            What I have not read elsewhere is whether there was a statement to the effect of "For use in commercial projects please contact me to obtain a commercial licence."

            If that was there, fair enough then someone at capcom never made that call and so they've been very naughty. If that statement was not their, then the explicit (or is that implicit) licence granted in the first paragraph could be construed to also be for commercial use.

            As I said I'm going off other reports, and do not have access to the book and so can not say. But it will certainly be interesting to see what comes out over time.

            1. The First Dave

              Re: From reading elsewhere...

              "You are free to use these textures" - why would you call that 'implicit' ? It may be a little on the short side, but it IS pretty explicit.

        3. MrDamage Silver badge

          Re: From reading elsewhere...

          Given the way Getty steals other peoples work, and then issues them with a cease and desist, I wouldn't be surprised if Capcom do have a legit license, but their provider didn't.

        4. Anonymous Coward
          WTF?

          Re: From reading elsewhere...

          Searching inside on Google Books, neither the word "license" or "reuse" occur and the word "commercial" only occurs in reference to commercial terms for things like type of stone or wood.

          I assume she will get something but I doubt it will be anything near to what she is asking.

      2. DS999 Silver badge

        If they thought they had a legitimate license

        Then maybe they have to go after whoever sold them that "license"?

        But I'll bet it was just googling and finding a site with some cool images. Just their bad luck that the woman who owned the copyright to them noticed it or was told by someone who did. Whether $12 million is fair is up to the jury to decide, but Capcom won't be able to plead poverty.

  2. DarkwavePunk

    Some of those...

    ...are pretty blatantly cut'n'paste jobs from her original photos. Had a quick scan through the PDF and the shattered glass ones I can't quite see, but a lot of the others definitely are direct lifts from her works. The weird thing is the source material being from 1996. I have little knowledge of Resident Evil (didn't know there was a 2 never mind 4). Scene designers for a major game developer should however be a bit more savvy about where they source their textures/images from. I blame carelessness given the age of the source material, not that she doesn't have a claim or doesn't deserve some kind of payment.

    1. John Riddoch

      Re: Some of those...

      It came with a CD, so chances are they bought the book and CD a while back and imported the images into their "textures library" without due diligence and have been using them since.

      As you say, some of those could be coincidental, but the number of images seemingly replicated shows they've been using a lot of them. It's almost certain she'd win in court, but Capcom lawyers should be advising them to agree a settlement amount, probably along with an agreement to use all images in the future.

      1. DuncanL

        Re: Some of those...

        Given that it seems from the evidence they're likely to win; they've gone for a massive claim and hoping that Capcom will just payout at a lower level to avoid the cost of lawsuit.

    2. Brewster's Angle Grinder Silver badge

      Re: Some of those...

      It wasn't the most in-your-face example. But zoom in and put your specs on, and there's enough unique features that it's clearly overlaid on it.

      I suspect it's first because it's the most reproduced and therefore the one which they owe the most for.

    3. Cuddles

      Re: Some of those...

      "The weird thing is the source material being from 1996."

      Why is that weird? RE4 started development in 1999, so using a relatively recent database of textures seems fairly normal. This isn't a newly released game - not counting remakes the most recent is the 23rd game in the series (although as seems tradiational these days, the numbers are largely irrelevant - RE4 was the 12th game).

      What's particularly interesting is that it appears they copied files directly from the CD without even changing file names. I'd say that makes it less likely they got the files through some convoluted route and might have thought they had a legitimate license. The filing also references another lawsuit where Capcom are being sued for copying designs in the most recent game. Doesn't look great for them really, although sadly I'd be surprised if any punishment is big enough for them to change their ways.

    4. Anonymous Coward
      Anonymous Coward

      Re: Some of those...

      It would have been much weirder if the CD had been published in 2021.

  3. Brewster's Angle Grinder Silver badge

    To my mind, they've argued this the wrong way round. I'd've started with the stained glass and door knockers, which are absolutely slam dunk; after that, you're more or less convinced of anything. There are one or two where, if I saw them in isolation, I'd be sceptical. (The library baseboard is a fairly common design and there's not much unique in the texture.) But when you see everything else they've ripped off, you think, "yeah, they probably lifted that as well."

    1. Persona Silver badge

      Don't start with the stained glass and door knockers. The defence team will point out that there are thousands of photos of them floating around and even produce new identical ones they took earlier this year.

      1. DS999 Silver badge

        I don't think they can plead that any one image. Even the glass break depending on whether it was something she broke herself to take the photo or was out in public elsewhere could be conceivably have other sources.

        The clincher for her is how many of her images are found in the game. That's the smoking gun, and no hand waving about "well someone else could have gone and taken a picture of this wall, that window and so on" can make it go away.

      2. Brewster's Angle Grinder Silver badge

        "...even produce new identical ones they took earlier this year."

        The person who took the photo first gets the copyright. You can't sidestep it by recreating the photo from first principles. But perfectly recreating the image in the lens is no different to slapping it in the photocopier. (This came up a few years ago and El Reg covered it, but I can't find the link.) If it's the same object with different angle and different lighting, then that's a new image. But you don't have a right to copy that image, no matter how you reproduce it.

  4. Falmari Silver badge
    Devil

    Breached who's copyright

    I have looked at the first few images in the PDF and yes, the look like they came from the same source. But is Capcom’s source the photos or the same as the photos source. All those images are from actual places so who’s copyright are they infringing the photographer’s or the actual source that the photos are of.

    Now just playing devils advocate here I bet that they use her photos. But “I bet” is not good enough, her lawyers will have to prove that the photos were the source, scanned from or if drawn copied from.

    Maybe they can maybe they can’t I wish her luck.

    1. Falmari Silver badge

      Re: Breached who's copyright

      Just looked up first release date of game.

      The first game was created by Shinji Mikami and Tokuro Fujiwara and was released for the PlayStation in 1996.

      So same year as the book which came first?

      I can see Capcon arguing those earlier images predate the book because for those images to be in the 1996 release they would have to have been created earlier than 1996 to make the release date.

      That said I still feel they ripped off her photos.

      1. PhilBuk

        Re: Breached who's copyright

        This is about RE4 - released in 2005.

        1. Falmari Silver badge

          Re: Breached who's copyright

          @PhilBuk Is it just about Resident Evil 4 game?

          The PDF from the complainant lawyers says more than a single version of Resident Evil.

          "28. Various versions of Capcom’s RESIDENT EVIL game and merchandise have

          used approximately 80 or more of Juracek’s photographs which appeared over 200 times in

          Defendants’ RESIDENT EVIL games."

          Then go to the exhibit PDF it labels exhibits as Resident Evil 4, Resident Evil HD and Resident Evil to name just the first few. So you can see why I believed (rightly or wrongly) it referred also to the first Resident Evil game.

    2. Anonymous Coward
      Anonymous Coward

      Re: Breached who's copyright

      This link (although it's UK copyright) has some information:

      https://www.gov.uk/government/publications/copyright-notice-digital-images-photographs-and-the-internet/copyright-notice-digital-images-photographs-and-the-internet

      Essentially, copyright on a photo rests with the photographer, for life plus 70 years (thank you Disney). If the picture was taken for their job, then it usually rests with their employer. The owner can sell the rights to a picture agency, for example, who take over the copyright (e.g. Getty).

      What about a modern photo of an old painting (for example), where the original is out-of-copyright. The photo may be copyrighted if the image is an "intellectual creation". So if the photographer has lit it artistically, perhaps arranged it in a wider scene, or taken a picture of only part of a larger item. But, of course, the "may be copyrighted" bit is where lawyers come in.

      As for your devil's advocate bit, remember that they are asking for a jury trial. A jury would consider, on the balance of probability, whether Capcom independently got hold of 80 images from separate locations which were all coincidentally in this book. Assuming that the lawyers could get all 80 images entered as evidence, of course.

      1. MiguelC Silver badge
        Coat

        Re: Breached whose copyright

        It's a question of time periods, really, and it's just down to a small misunderstanding by Capcom's people: as the images were taken "by Juracek", they though that by now copyright would have already expired....

        1. Tom 38

          Re: Breached whose copyright

          @MiguelC, think your punning went over their heads (or maybe they didn't like the joke?)

      2. Falmari Silver badge

        Re: Breached who's copyright

        @AC "As for your devil's advocate bit, remember that they are asking for a jury trial."

        I know, devil's advocate was in reference to the prevailing point of view of comments here and a play on one of the game names. ;)

        Too many down votes and this devil's advocate may cry.

  5. Anonymous Coward
    Anonymous Coward

    "Devil May Care": a previously unreleased high-pitched action/adventure game mostly consisting of blazing through otherwise mundane, real-life scenarios with little regard for the consequences.

    Or it's a lesson in why your legal team should proof read their submissions.

    One of the two.

    1. Falmari Silver badge

      Devil May Cry

      I saw that as well, Devil May Cry

  6. This post has been deleted by its author

    1. tmTM

      Re: Copyright on photos of physical objects

      Two problems there tho:

      I doubt anyone else went and got a picture of that broken window, and you can see when overlaid it's a match.

      Also they copied the files without even bothering to change the names, so files on the original CD ROM appear in the game data with the same names.

      1. John Robson Silver badge

        Re: Copyright on photos of physical objects

        "Also they copied the files without even bothering to change the names, so files on the original CD ROM appear in the game data with the same names."

        That would be the slam dunk - strange that it isn't mentioned in the article.

  7. Anonymous Coward
    Anonymous Coward

    Games devs and artwork

    I used to know a game dev back in the early 2000s. Their big name FPS game used many "borrowed" images. Small stretched images as tiles. At least one set of tunnels borrowed from goatse (Don't google it - read Wikipedia if you don't know what that is).

    They said they had a competition as to who could sneak the worst items into the game unnoticed.

    1. Anonymous Coward
      Anonymous Coward

      Re: Games devs and artwork

      Resistance: Fall of Man used Manchester Cathedral for one level. The Church of England were not happy about it being in a first-person shooter but Sony got away with an apology. Was a nice bit of publicity for the game too.

  8. fidget

    The US Postal Service has been here before,, with US Statue of Liberty replica

    This reminds me of the US Statue of Liberty Forever Stamp. In 2010 the US Post Office used a photo of a Las Vegas replica of the Statue of Liberty on a postage stamp. Ten and a half billion copies were produced. In 2013 the sculptor of the replica sued for copyright infringement. It went to trial, and $3.5 million was awarded.

    The judgement wrote: The court is left to craft a remedy that best reflects what the fair market value of a nonexclusive license for plaintiff’s artwork would have been in 2010. Perhaps the lawyers and judge in this case will use the previously crafted remedy as a precedent.

    https://en.wikipedia.org/wiki/Statue_of_Liberty_Forever_stamp

    https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2013cv0942-136-0

    By the way, it's a "Forever Stamp" showing a replica of the Statue of Liberty, not a "Statue of Liberty Forever" stamp.

    1. lglethal Silver badge
      Facepalm

      The mind boggles...

      Really!?! There are not enough pictures of the actual Statue of Liberty??? You need to use a picture of a replica? What on Earth were they thinking?

      Just crazy.

      The $3.5 million seems like an appropriate punishment, not for using the sculptors work, but for being stupid and not using a photo of the actual Statue of Liberty...

      1. DS999 Silver badge
        Trollface

        Re: The mind boggles...

        Well now you know where the guy who did the RE4 artwork in 2005 went for his next job in 2010. Google image search FTW!

  9. a_yank_lurker

    Uncertain

    While sympathetic to my fellow photographer, I am uncertain how many of the images were purloined; note I have not seen any of the images. My experience is many images take by different photographers often strongly resemble each other. Depending on how each is cropped and processed it is possible to confuse them. The number claimed is suspicious and points to the possibility of infringement. However, we do not know the source used and some stock photo houses are not the most ethical operations.

    I can see infringement actually occurring but the real culprit being a third party that illegally licensed them to the developers. Alternately, I can see the developers not paying attention to the fact ALL photographs are copyrighted like any other work and infringing carelessly. A common misunderstanding is how copyright law treats photographs as many assume they are not copyrighted when in fact they are.

    1. ACcc

      Re: Uncertain

      Having clicked on the pdf linked in the story it looks very clear after the first half dozen that these textures have been taken from the "surfaces" photos, and it just get more convincing the further through you get - it's not just the item photographed but background behind/surroundings; the fractures in broken glass; marble patterns (yes, could be coincidence if a single shot of a column from somewhere like the Duomo in Florence, not if there are lots of shots of marble textures with the patterning copied to textures)

      1. DS999 Silver badge

        Re: Uncertain

        And as pointed out above, while not mentioned in the Reg article they even have the SAME FILE NAMES. There's zero grounds to argue they weren't lifted directly from her work. The only question that remains is were they lifted by Capcom or did Capcom get them through a third party (who they may be able to hold liable, should that third party still exist) and how excessive the jury finds her demand for $12 million.

        She's got a slam dunk, airtight case.

        1. a_yank_lurker

          Re: Uncertain

          Leonard French posted a commentary about the lawsuit. It does appear there is solid case to get to discovery at a minimum. However, he points out a subtle difference in copyright law about photographs. The photographer owns the copyright to the actual photograph but usually does not own any copyright to object(s) in the photographs. So if another source was used of very similar images (better have some very serious paperwork) to hers there is no claim. So the underlying question is not infringement yet but the source of the images.

          Also, French noted that in the lawsuit itself, the CD provided were low resolution images. High resolution images are available for her after signing an appropriate contract, as noted in the lawsuit. If these are high resolution images, this implies intermediary misrepresented their ownership or rights to images. I have not seen were anyone has verified the resolution of the images themselves.

  10. Skiron
    Holmes

    Right:

    From the PDF:

    ---

    12. As part of Plaintiff’s work, she traveled around the world photographing various

    and unique decorative surfaces and features as part of her research related to set design which

    photographs are distinctive and exclusive to Plaintiff. These photos are extremely useful to

    designers and architects looking to create distinctive and memorable scenery and decorative

    features.

    13. As a result of Plaintiff’s work over the years, she grouped together various

    examples of unique and interesting surfaces, textures and features into a book and CD-Rom

    (“CD-ROM”) which represented Plaintiff’s extensive personal research work into decorative

    surfaces and textures.

    ---

    So surely the shiny things she photographs belong to the people that own them, so they must be the Copyright holders, eh?

    1. Anonymous Coward
      Anonymous Coward

      Re: Right:

      Nope, that's not how copyright works for photography.

      You would be right if she had reproduced works of art, eg, a photography of a painting under copyright, where the painting is the only thing on the photography, that would work.

      But buildings are not covered, and things that have clearly no artistic aim (broken glass, bricks) are not copyrighted.

      1. a_yank_lurker

        Re: Right:

        The photograph itself is covered by copyright. The underlying object(s) do not need to be copyrightable themselves. Otherwise a still life or other images could never be copyrighted. So her images are covered by copyright even if they are images of objects that are rather mundane like a brick wall.

    2. Anonymous Coward
      Anonymous Coward

      Re: Right:

      "So surely the shiny things she photographs belong to the people that own them, so they must be the Copyright holders, eh?"

      No. Photographs belong to the photographer. If the subject of the photograph is itself copyrighted (e.g. a painting), then you need to negotiate with both the photographer and the subject-owner. One obvious case is that of wedding photographs. If you want extra copies of the photos taken on your special day by the professional photographer, you have to buy them off the photographer (unless it's part of the deal that you get electronic copies of the raw files).

      It was more clear back in analogue-photography days, when there was a physical negative. But the principle still stands.

      This is also the reason why lots of places have signs banning commercial (or all) photography.

      Edited to add: Damn! Beaten to it.

  11. Draco
    Windows

    A bit of he says / she says

    (BTW: IANAL - and don't pretend to be one on the Internet)

    Point 16 in the complaint states:

    16.This book also included a CD-ROM which provided digital copies of the photos(“photographs”)and suggested that the photos could be useful for various purposes and invited interested persons to contact Juracek if licenses were desired. The CD-ROM also contains a copyright notice “© 1996 by Judy A Juracek All rights reserved”. - bolding by me.

    However, the ABOUT THE CD-ROM in the book states the following:

    The accompanying CD-ROM contains screen resolution TIFF files for all of the images in the book with the exception of seven photographs in the Glass section (G-23, 24, 26, 35, 48, 49, and 51), rights to which do not belong to the author.

    With the appropriate graphics software, on either Macintosh or Windows platform, 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.

    Further information about the image formats can be found on the readme.txt file on the CD.

    Original images can be obtained from the author.

    Write to P.O. Box 7206, Wilton CT 06897 - [bolding by me]

    Nothing in the About the CDROM text prohibits private or public use of the images - indeed, it permits public use, including printing of the images. It does state that original images can be obtained from the author (presumably, these are higher resolution).

    It will be interesting to see if the courts consider the About the CDROM as giving tacit approval for use of the images on the CDROM - recall, 7 images are explicitly NOT on the CDROM for copyright reasons. And whether or not the courts will consider the statement Original images can be obtained from the author as an invitation to obtain licenses for images (as claimed in paragraph 16 of the lawsuit).

    At any rate, this mostly benefits lawyers and not much else.

    1. Ian 55

      Re: A bit of he says / she says

      Certainly if I were Capcom, I'd be saying that I was "communicating visual information to others" via including the textures in games.

  12. Do Not Fold Spindle Mutilate

    As an owner of a copy of the physical book, the book says:

    On the cover of the book "Visual Research for Artists, Architects and Designers". "

    On the frontmatter "All rights reserved".

    At the back "About the CD-ROM", ... "The CD images can be used by artists and designer is developing concepts, preparing presentations for clients, and communicating visual information to others. "

    The readme.txt on the cd also says "All images copyright (c)1996 by Judy A. Juracek"

    If the exact image is used then there a copyright problem. I looked at this exact phrase a couple of years ago to see if the images could be used in non-commercial manner but decided the keyword and intention of the book is research. Look at the pictures get inspired but create your own work.

  13. CrackedNoggin Bronze badge

    Capcom is listed as having $850 dollars million in revenue, $318 million in profit. This shouldn't be too painful, they won't go belly up.

  14. Miss_X2m1

    Guilty, guilty, guilty...

    Guilty, guilty, guilty. Now pay the lady.

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