Hi! I'm working on a commercial simulation game for the PocketPC platform and I'm planning to use 3D models in order to make renders out of them and use them as assets in my game. It's a personal project, and I'm in charge of the game design and programming aspects, as well as overall management. I'm about to hire a 3D artist so that he can do the assets for me but today I began to worry about an aspect that, since game programming has always been a hobby for me, I've never taken into consideration, which is the use of copyrighted assets (eg. the md2 files you can download from polycount, which can be used for non-commercial purposes but cannot be used in a commercial project). My concern is not about the models, but the textures. My question is: is there any legal regulation that dictates when a copyright infringment is being committed when creating a texture? To put an example: if the artist goes out with a digital camera and takes a picture of a can and later he uses a certain portion of that picture to make the texture, is it illegal? What about if he takes a certain portion from an already existing image (found on the internet, for example)? Thanks in advance for all your input, --Nacho

First, I am not a lawyer, and this is not legal advice.

Quote: Original post by Ignacio Liverotti
My concern is not about the models, but the textures. My question is: is there any legal regulation that dictates when a copyright infringment is being committed when creating a texture? To put an example: if the artist goes out with a digital camera and takes a picture of a can and later he uses a certain portion of that picture to make the texture, is it illegal? What about if he takes a certain portion from an already existing image (found on the internet, for example)?

The copyright on the first picture is usually with the artist (or possibly a company he works for). However, this could be a trademark infringement, particularly if the logo from the can is used to texture a can or similar product in your program. If it's just about using the metallic texture of the object, then it shouldn't be a problem.

For the second case, you might be dealing with a derivative work, so you would not be able to do this without permission from the original image's copyright holder. I know from talking to web designers that this is often done anyway (in the context of website logos), with substantial changes to the original. But if someone catches on, you could land in hot water, so it's better to always get written permission first or create your own.

Quote: Original post by Ignacio Liverotti
Hi! I'm working on a commercial simulation game for the PocketPC platform and I'm planning to use 3D models in order to make renders out of them and use them as assets in my game. It's a personal project, and I'm in charge of the game design and programming aspects, as well as overall management.

I'm about to hire a 3D artist so that he can do the assets for me but today I began to worry about an aspect that, since game programming has always been a hobby for me, I've never taken into consideration, which is the use of copyrighted assets (eg. the md2 files you can download from polycount, which can be used for non-commercial purposes but cannot be used in a commercial project).

My concern is not about the models, but the textures. My question is: is there any legal regulation that dictates when a copyright infringment is being committed when creating a texture? To put an example: if the artist goes out with a digital camera and takes a picture of a can and later he uses a certain portion of that picture to make the texture, is it illegal? What about if he takes a certain portion from an already existing image (found on the internet, for example)?

Thanks in advance for all your input,

--Nacho

IANAL and this is not legal advice. If you decide to use an identifiable portion of someone else's product, image, etc., it will save you headache later down the road if you ask permission. If you are making the texture from, say, a photograph you took of a piece of aluminum foil, there is nothing in that photo to connect it to another work, trademark, trade dress, et. It's entirely generic. If you take a portion of an image, and I mean even the SMALLEST portion, whereby the author can recognize it as his image, there is the possibility that you will be sued.

Keep in mind that copyright isn't the only IP you have to worry about. You should also think about trademark, trade dress (the packaging/look of a particular product in commerce), and design patents. So never fall into the trap of thinking "well I'm only using a little bit" will be ok.

Best of luck!

If you are going to use objects like a Coke can, just avoid any and all parts in the texture that are accompanied by a trademark (TM), registered trademark (R) and copyright (C) symbol. Better yet, don't rely on other peoples' artwork -- ex: the artwork made by the artist hired by Coke to pretty up the can. It's all about brand recognition. If you use a logo similar to Coke's, it may appear that you are attempting (illegally) to imply that Coke is involved with your work. They do not want their image diluted, so they will sue if you infringe on their trademarks, etc.

Just like I wouldn't want someone taking my company logo and slapping it on a Barney the Dinosaur simulation... I'd be ticked off, because someone might actually be confused into thinking that it was my product.

Gt yourself a REAL artist who can make his own work. The polycount forum is full of them if you need a starting point.

Thanks everyone for your replies. Pardon me for didn't explaining myself better, but when I said "taking a picture of a can" I was referring to a regular metallic structure (eg. a metallic barrel) with no logos attached whatsoever. According to lightbringer, that shouldn't be a problem, what does the rest of you think?

Thanks again for your input,

--Nacho

Quote: Original post by Ignacio Liverotti
Thanks everyone for your replies. Pardon me for didn't explaining myself better, but when I said "taking a picture of a can" I was referring to a regular metallic structure (eg. a metallic barrel) with no logos attached whatsoever. According to lightbringer, that shouldn't be a problem, what does the rest of you think?

Thanks again for your input,

--Nacho

So long as it isn't a specific type of can (i.e., one that readily identifies a product by its shape-- this is the trade dress I mentioned earlier) and there are no labels or other identifying features whatsoever, the object should be generic enough that no one could claim to own the rights to that object.

However, I'm inclined to agree with the prior post-- why not just have your artist come up with his own textures, especially something as simple as a 3D silver cylinder (which is essentially all we're talking about)?

Thanks everyone for your replies. I haven't hired any artist yet, but I wanted to learn about how to deal with this whole texture issue before I did. The other question that comes to mind is the following: How can I legally cover myself in case the artist uses a copyrighted image as a texture? This is going to be a freelance work and, although the artist is goind to send me a separate image file for every texture, I have no way to tell whether the image being used is legal or not.

Thanks again for all your input,

--Nacho

Edit: typos.

[Edited by - Ignacio Liverotti on March 30, 2008 8:48:43 AM]

Quote: Original post by Ignacio Liverotti
Thanks everyone for your replies. I haven't hired any artist yet, but I wanted to learn about how to deal with this whole texture issue before I did. The other question that comes to mind is the following: How can I legally cover myself in case the artist uses a copyrighted image as a texture? This is going to be a freelance work and, although the artist is goind to send me a separate image file for every texture, I have no way to tell whether the image being used is legal or not.

Thanks again for all your input,

--Nacho

Edit: typos.

A warranty and rep in your work for hire agreement with the artist stating that all work product created by the artist is a new and creative work and does not infringe on the intellectual property rights of another, and an indemnification clause stating that Artist will hold you harmless in the event that any third party brings an action against you based on anything contained in the warranties and reps. This is the standard CYA method in employment/independent contractor agreements.

[Edited by - madelelaw on March 30, 2008 9:13:16 AM]

Thanks for your reply madelelaw. I'll add a few clauses to the contract stating what you suggested so that the contractor signs them before starting.

I've been reading your blog, it's very interesting. Please, keep on writing, there's very useful advice in there. Rating++.

--Nacho