Others Real Porn Copyright/Legal issues question

[bobkelly113]

I understand in the US, you can be liable for copyright violations if you use media (pictures, movies, music, etc) that you do not own

Although it might be rare for someone to get into trouble for using porn clips in a game, I personally wouldn't want to risk it

So I was wondering, if I were to make a game using real porn images and gifs, purely for fun/hobby and not for profit, and have someone else upload it to f95zone for me, would I still potentially get in trouble for copyright or piracy violations?

I would also appreciate any other insights or advice in regards to using real porn content in the US.

 

[someyoungguy]

The thing about intellectual property (IP) laws in the US is that profiting from the use of someone else's IP isn't the only way that IP use can violate IP ownership. Basically, from a legal standpoint, any use of another person or company's IP is considered a violation unless it falls into one or more of a few specific exceptions laid out in IP law. Collectively, the exceptions to IP law are referred to as Fair Use, so if you want to look into what can potentially constitute fair use and decide if your project would fall under one or more of the fair use protections, that could potentially be a way forward for you if you're planning on doing this in a 100% legal way. The thing about fair use, though, is that unless there's an extremely clear parallel example of the same type of use as your project, it could still end up wrapped up in an extensive legal battle determining whether it's fair use, because fair use is heavily precedent decided and determined on a case-by-case basis.

Imo, the protection that most of the IP violators like the ones making games with images from existing porn are relying on is less a legal one and more a cultural one. It's common practice for an IP owner to use a Cease & Desist as a first step in trying to stop IP violations in all but the most egregious types of violations. Often, if a violator stops producing a work or changes a work to no longer be violating, an IP owner will not pursue a violation further after a Cease & Desist is obeyed. That, or they're just assuming that an IP owner would never find out about the violating work at all.

If you have reason to believe that your potential project would fall under fair use, my advice would be to consult with an attorney specialising in IP law to find out how likely it would be for your work to constitute fair use. Otherwise, you should just assess for yourself how likely/risky it would be for you to get caught making an infringing work.

 

[osanaiko]

There's no way in the world that the way in which porn video snippets as used in HTML games would ever pass the sniff test - it stinks of profiting from a derived work.

The reason why there are endless webms ripped from porn movies available on imgboards is that tracking down who is infringing is not worth the return.

But if someone sets themselves up as a named publisher, and then tries to get paid for it.... now they have painted a target on their back. While the game is obscure and not making any money, then it's unlikely that the IP owner will notice... but if the game becomes more popular and starts earning money, then it's a simple matter to pursue the developer because now there is a payment paper trail. If the developer is in a non-US jurisdiction then it might be possible to avoid personal consequences, but the money pipe will certainly be cut off because the payment companies are US based or beholden to legal action via various treaties.

 

[aereton]

There's no way in the world that the way in which porn video snippets are used in HTML games would ever pass the sniff test - it stinks of profiting from a derived work.

The reason why there are endless webms ripped from porn movies available on imgboards is that tracking down who is infringing is not worth the return.

But if someone sets themselves up as a named publisher, and then tries to get paid for it.... now they have painted a target on their back. While the game is obscure and not making any money, then it's unlikely that the IP owner will notice... but if the game becomes more popular and starts earning money, then it's a simple matter to pursue the developer because now there is a payment paper trail. If the developer is in a non-US jurisdiction then it might be possible to avoid personal consequences, but the money pipe will certainly be cut off because the payment companies are US based or beholden to legal action via various treaties.

Not to mention, you'll be kicked off pretty much any monetization platform for using real porn. Not just from a copyright standpoint, but because those providers don't want to be held liable for (US based) special provisions involving real pornographic material. Also, payment processors.

All in all, use real porn for small hobby projects but if you want to make money you better use art.

 

[ouch2020]

I understand in the US, you can be liable for copyright violations if you use media (pictures, movies, music, etc) that you do not own

Although it might be rare for someone to get into trouble for using porn clips in a game, I personally wouldn't want to risk it

So I was wondering, if I were to make a game using real porn images and gifs, purely for fun/hobby and not for profit, and have someone else upload it to f95zone for me, would I still potentially get in trouble for copyright or piracy violations?

I would also appreciate any other insights or advice in regards to using real porn content in the US.

It depends on where you are, on the use you make, and luck.

As far as USA goes, it was already indicated, if you make a profit from it without paying royalties, it is a copyright violation.
The "fair use" is however allowed, and if you go around for porn, you will find tens (probably hundreds) of porns that are clear references to movies and series like Star Trek, War of Thrones, DC and Marvel characters, etc. with the "parody" word in it.
Parody is considered "fair use".

Will that, i.e. referring to parody, be enough to avoid a successful copyright lawsuit ?
Well, most often it is not a matter of being successful, it is a matter of creating a cost for you, i.e. a company does not need to be sure they can win, they just need to know that they will create a cost for you you cannot afford.
At the same time, even if as far as I remember few years ago USA still had the biggest porn industry in the World, considering many judges in USA are elected to their position, it would probably be difficult for them to find a judge that likes being labelled as "the friend of porn" - not good for elections .

All in all, as someone else mentioned, at maximum you would probably get a "cease and desist" (which is cheaper even for them, technically, as far as I remember a "cease and desist" is not required to be sent by a lawyer), not a lawsuit.

About that parody element, do the people who made e.g. "War of Thrones" and HBO, or DC comics, or Marvel, not know that there is one or more xxx parodies around and that is why you never heard of a big lawsuit from them ?
They can pretend not to know, to avoid the embarassment of somehow admitting in public that somebody somehow connected to it saw porn, but I cannot believe it even for one second that they do not know - notice it is true that AFAIK often the parodies change a bit a name, or modify a bit the costume so they say it's "cosplay", but it is still obvious that e.g. the character is supergirl (down to the "green slime" which is obviously supposed to be kryptonite) or Wonder Woman.
I am not considering stuff like Alice in Wonderland because it could be argued that the original story should be more than old enough to be in the public domain, so insofar as you make your adaptation, it would still be good.
For "Game of Thrones", they even hired real porn actresses for the role of some of the girls of "little finger", and they were not just extras, they had actually some talking scenes and therefore mention in the cast, it would be damn hypocritical to complain about porn parodies being made of it, and there is the "parody" defense.

Incidentally, look here on F95 for "real porn", there are a bunch of games with it, maybe you can also ask their authors for advice/feedback.

For Patreon, Subscribestar etc. , it goes as much by luck as by rule.

They rules may or may not refer explicitly to porn and the case you present, but the simple truth seen with other games here on F95, is that something may well be in the list of things they forbid, and still get money through them.
An author that has become known for his model of Lara Croft is making (while "milking the cow", I would say :-D) an adventure/animation with horse and Lara for a long time, and has apparently still thousands of subscribers on Patreon.
At the same time, a developer was threatened to be kicked out from Patreon because his game had incest and bestiality (specially, with a dog and, separately, a horse) and either was enough to be kicked out, and they even said he tried to make a patch to put them back and distribute it even outside Patreon, he would still be kicked out.
I know well because I made and maintain the patch to put back the incest (someone else is taking care of the bestality), and I was in contact with that developer, and basically, it seems Patreon reserve the right to decide what they will allow you to do or not, with almost no appeal possible.

Though talking about Patreon, Subscribestar etc. can touch the "for profit".
It is true that in theory, even if you do not make money from it, they could still claim copyright infringement, but it would make it even less probable that will do anything more than at maximum a "stop" (the "cease and desist", saves them the hassles of a court case), even if they ever decided to do something.
If you are making money out of it, it makes more possible, if not more probable, that they could do something, though depending also on the amount - copyright infringment is civil lawsuit for money, if their money loss and your money gain from it is basically nihil, they can still claim damages in theory, but in practical terms most often they would get at maximum the simbolic award and the legal fees.
Yes, Patreon, Subscribestar etc. are considered as making a profit out of it.

Sorry for not giving a simple answer, but in reality, this what you can expect from a lawyer (not a laywer, but I worked on legal stuff, including criminal) - they will give you advice, but they are not responsible for what you do, the responsability stays with you (or in other words "we won", but "sorry, you lost", said the lawyer to the client ;-)).

From another perspective, but that is my personal one...
To use real porn, you would need to have real porn with the right character and the right scenes filmed in the right way to fit exactly in the story you want.
Not impossible, but quite complicated. And if you have to try starting to use "gen AI" to create videos for that, it is not said to be so easy and fast - plus, even if they are porn actresses, there either the result is not so good, or if the result is close to perfect, you risk to go against another law that has nothing to do with copyright and is directly criminal.

I would check if there are models that represent the actresses you want to put in the scenes, and create the 3D images - yes, you will not have easily video (that is more complicated), but you will be able to do them the way you want, and in that why it is even less probable, and even less possible, that you get any legal trouble.

Hint, even in that case, remember "parody", and I know it is not your case for now, but if ever you decide to do something with DC, Marvel, characters from movies, other than "parody", remember tricks like one cannot register, claim copyright, trademark on names like Natasha (Romanoff) or Lara (Croft), etc.
Natasha, because you will get a bunch of ladies from various countries in Eastern Europe where it is quite diffused asking you for money :-D, and Romanoff is not so diffused in Russia, but it was the family surname of the last Czar, so, not exactly something invented, non-existing and uniquely linked to a Marvel character.
Lara, because Lara is a name that existed from long before (no, it was not invented for Dr Zivago), and they admitted themselves that "Croft" they took randomly from a phonebook, so, again not something that they pretend they invented and is unique (because if they pretend it was unique a therefore worth money in itself, the people with that surname could the same and ask them for money) - though it is true that most people making parodies change a bit typically keep the name and change a bit the surname, often towards something more "evocative" ;-D, since they give anyway a look that is recognasible.

P.S. I focused on USA.
In some other countries, if the use is limited and you do not get any money for it, it is enough to recognise that you took bits from around to be OK.
Or you can pay a small amount (well, maybe "small", is typically based on what you are creating, the price and the size of the expected audience, though they can also have specific parameters for software like expected number of players) to an organisation that manages the rights in that country for all the copyright owners, and then you are covered, though it also depends on whether it is music, images or part of movies/videos (in general, music is the simplest, movies/videos the ones that may come more expensive/complicated).

 

[Deleted member 3586865]

I understand in the US, you can be liable for copyright violations if you use media (pictures, movies, music, etc) that you do not own

Although it might be rare for someone to get into trouble for using porn clips in a game, I personally wouldn't want to risk it

So I was wondering, if I were to make a game using real porn images and gifs, purely for fun/hobby and not for profit, and have someone else upload it to f95zone for me, would I still potentially get in trouble for copyright or piracy violations?

I would also appreciate any other insights or advice in regards to using real porn content in the US.

I am not a legal expert but there is a hint in your question.

If it copyrighted will require you to obtain the permission to use it.
Simple.

Now, it may be true that if you are a pimple or even smaller in the vast ocean of the internet, that no one cares. Just be careful for the one moment someone does care. Your cards are very limited.

All material from a promotion, a video or photos i have to assume are protected by copyright.
Reading on parody, it's a slippery slope at best. Best to have a lawyer then, since its up to interpretation and intent.

If it burns under the nails, you may want to jump the shark since you stated to do it for no monetary gain.

 

[ouch2020]

All material from a promotion, a video or photos i have to assume are protected by copyright.
Reading on parody, it's a slippery slope at best. Best to have a lawyer then, since its up to interpretation and intent.

Parody in itself works fine (though I admit I find it somehow hypocritical on occasions), it is used by studios in porno industry all the time.
More than the "parody" itself, his problem would be that one thing is a porno parody called e.g. "This ain't Game of Thrones, an XXX parody", another is him taking parts of that parody and using the extracts.
The first parody goes, but the parody of the parody, made using extracts from the parody itself, I think would be stretching things too far - but this is just an opinion.

Another thing nobody mentioned, that is fair use, is critical comment, that's why people can do videos on youtube about movies without paying royalties even if they put multiple extracts of few seconds from the movie - but a porn game is not a critical comment or review, and I honestly cannot see a way in which would be possible to put it in that way, not an entire game.

I still would stick to the making ones own images, but it's true that it is a bit like answering "nope, can't do" to the original post, especially if you are in USA (as I wrote, in other countries, it can be simple to be legal, even if one has to see the ratio cost/benefits).

 

[Deleted member 3586865]

Well, porn movies aren't really great creative things.
The plot usually has nothing to do with the copy of the original source and it's probably because it doesn't matter to the intent, which is sex.

Fair use is different to different countries.
I know in mine, a song for example can be played for x seconds before you need to pay royalties. At least this was the case years ago.

I am not sure about the fair use for movies in your example.
clearly, when i watch Bill Maher, the "copy" isn't legal but on YouTube. But for the same reason it expires at one point.

Perhaps there is a loophole when adding commentary to it which i had seen as well.
It doesn't show the whole reel but parts of it.

I consider it a grey area.

But i agree that if you say, Games of Thrones but state "parody" the plot can be used without the obligation of royalties. I was looking on some law explain sites and it seems murky. A 50/50 possibility. Like if someone wanted to sue you. I am not a legal expert but just a person to make sense of it.

Though, any game from Nintendo probably will not go through as parody. They sue you to submission if it even resembles faintly anything of their IP.

 

[ouch2020]

Well, porn movies aren't really great creative things.

Well, I feel here we are starting to go on the slippery slope (personally, I have a clear idea, but I know many would not agree with me) that brings also to the discussion o whether porno actresses by default are actresses or prostitutes that have sex while being recorded.

Though, any game from Nintendo probably will not go through as parody. They sue you to submission if it even resembles faintly anything of their IP.

Well, there we are also going in something different, we are talking about trademarks, it falls still under the general idea of IP, but it is not the same as copyright.
It is like Nike, Nike as name in itself cannot be copyrighted, is the name of a Greek goddess, but Nike with the little symbol, and if I remember correctly even the little symbol in itself, are registered trademarks.