Several questions about copyright.

[Glacial_cry]

I have made an HTML game with gifs and clips of videos i picked up from a couple of porn sites(direct downloads from free sites, not the originals) and want to post it on various places, and i have some questions about the possible copyright issues;



1- First of all can i say something like "As long as i dont make money with it, im perfectly safe, legal and finance wise."?

2-Say i got a patreon page up for the said game and earning money through tips, legally speaking would it possible and feasible at all for me to spin that as "Im making money off of tips, not from the game itself directly, its a free game".

3-Even if that didnt work, shouldnt i technically still be "safe" considering that i just picked my videos from the "already stolen" pile?

4-What could happen to me in the worst possible scenario? Im guessing it would be unrealistic to expect a life sentence because i stole a couple of 10 seconds-long porn clips. Or a fine in the range of millions of dollars. Quite clueless on that front seeing i never had to deal with anything like that, so if you can give me your best guesses, i would appreciate it.

5-And can that worst possible scenario averted or it's impact lessened in any way at all? If so, what would those ways be?



Thanks in advance, pardon the butchering of language.

 

[c3p0]

First of all you would better discuss this with a lawyer that know the laws in your country than ask this on forum.

As I neither a lawyer nor know in which country you live. Take all things with a doubt.

1- First of all can i say something like "As long as i dont make money with it, im perfectly safe, legal and finance wise."?

No, only because you don't sell don't make this more legal.

2-Say i got a patreon page up for the said game and earning money through tips, legally speaking would it possible and feasible at all for me to spin that as "Im making money off of tips, not from the game itself directly, its a free game".

No, same as above.

3-Even if that didnt work, shouldnt i technically still be "safe" considering that i just picked my videos from the "already stolen" pile?

No, cause that doesn't make it more legal too.

4-What could happen to me in the worst possible scenario? Im guessing it would be unrealistic to expect a life sentence because i stole a couple of 10 seconds-long porn clips. Or a fine in the range of millions of dollars. Quite clueless on that front seeing i never had to deal with anything like that, so if you can give me your best guesses, i would appreciate it.

Best case nothing, because they don't bother to do something as there is no money in it. Normal case you will receive a cease and desist letter and in the best case without any sum to pay. Worst case would be court. And what a court decided is on a case to case basis, obviously depending on the law, country and the case itself. Worst outcome, I think, would be jail, normal would be a sum you need to pay, if you lose the case. That could be easy in the range of ten thousand or more, depending on how much the other site want and how the court rules.

5-And can that worst possible scenario averted or it's impact lessened in any way at all? If so, what would those ways be?

Doing nothing illegal in the first place?

 

[TessaXYZ]

It's a copyright violation no matter how you try to spin it. Making money or not making money has absolutely nothing to do with it (though that would certainly increase the damages).

 

[snookums.d.panda]

While I'm not a lawyer, I can see the following happening in response to your statements:

1 - "Doesn't matter, you're using our content without our permission."

2 - "The tips you're getting are from using our content without our permission, so you are in fact making money off our content."

3 - "So in addition to using our content without our permission, you're now admitting to having acquired it illegally?"

4 - Worst case scenario? Well, seeing as I'm unaware of what content it is you're actually talking about here, I'd say that worst case is that some of your clips are considered to be Revenge Porn. Again, not a lawyer here, but I think that sort of stuff mainly falls under criminal law rather than civil, so I'm thinking your game isn't worth a possible criminal record.

If it's all stuff produced by professional porn studios? Then expect to hear from some lawyers, as from what I've read these companies are very protective of their copyright. As for worst case in this regard? Well, I'd like you read up on the legal case between

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Why this case? Well, it's because the guy running RomUniverse decided to not hire a lawyer and instead used "Internet-Lawyer" logic against actual lawyers. I feel that you should read how well that turned out for him, because that's the level of argument you're trying to use right now.

On the bright side though, the fact you're asking these questions does put you at least one step ahead of that guy.

As for #5? Well, I'd say keep this one as a personal project to work out your ideas on, then use the experience to come up with something less problematic. Because right now you know there are issues, and are basically crossing your fingers in hope that you won't get caught or be too small a fish to be hearing from any angry lawyers.

I'd also take the time to get an understanding of how copyright law works in your country/region, preferably by speaking with someone works with/understands them rather than from some randos on the internet.

 

[kintarodev]

This came to my mind:

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If you don't want to tip a visit to kotaku just google gary bowser

 

[Meaning Less]

This came to my mind:

You must be registered to see the links

If you don't want to tip a visit to kotaku just google gary bowser

Are you saying there is a real dude named Bowser that is an enemy of nintendo? Too funny to be true.

 

[anne O'nymous]

Are you saying there is a real dude named Bowser that is an enemy of nintendo? Too funny to be true.

Well, wouldn't you get mad if your name was known worldwide as a vicious villain princess kidnapper ?

 

[anne O'nymous]

[...] Normal case you will receive a cease and desist letter and in the best case without any sum to pay. Worst case would be court. And what a court decided is on a case to case basis, obviously depending on the law, country and the case itself. [...]

I thought about that, and there's something that everyone (including me) tend to forget when it come to this kind of subject: if you're sued, your fucked and you'll loose, this whatever the court can possibly decide.

Face to Justice, you're not anymore Anne O'nymous, C3p0, or Glacial_cry, you're there under your real identity... And, if some of us don't care this much, for others it would be a real issue that can put them in way more troubles than the trial itself.
In most countries, all the process will be public, from the indictment to the sentence, passing by the trial itself. Of course, for most cases you'll never know that it exist unless you are searching for it. But searching for it, isn't it what your boss risk to do when you'll ask of a day off because you're sued ? Searching for it, isn't it what your friends, and families, risk to do when you'll be out of yourself because of the trial ?

So, before anything else, isn't the risk to be publicly uncovered as creator of a lewd/porn game the most important one ? And therefore the one you must keep in mind when you've to weight the benefit/risk balance ?
If you are not ready to be uncovered, or if it could seriously mess with your life, you should consider that no benefit worth this risk. Because, if you end face to a vicious IP owner, he could perfectly not care about the fact that suing you would cost him more than he can win. Uncovering you, and therefore sending a clear message that if someone mess with him, he can destroy his life, worth more than all the money he could get...

 

[kintarodev]

So, before anything else, isn't the risk to be publicly uncovered as creator of a lewd/porn game the most important one ? And therefore the one you must keep in mind when you've to weight the benefit/risk balance ?

Couldn't care less... at least not nowadays when from my POV so many people are just f*ck up in so many ways... At least I put my free time in something creative and that I enjoy (creating).

Never bought and never will this narrative of it's ok to create a game where you can smash a character's head in so many different ways but it's not ok to simulate some virtual sex...

 

[c3p0]

Never bought and never will this narrative of it's ok to create a game where you can smash a character's head in so many different ways but it's not ok to simulate some virtual sex...

Do a game for the Americans and Germans, no sex and no violence. I also find the current "believe" system in this regard misleaded. My dream would be that all types of games are available for all different plattforms, but I know better.

 

[Icarus Media]

If it's all stuff produced by professional porn studios? Then expect to hear from some lawyers, as from what I've read these companies are very protective of their copyright. As for worst case in this regard? Well, I'd like you read up on the legal case between

You must be registered to see the links

Why this case? Well, it's because the guy running RomUniverse decided to not hire a lawyer and instead used "Internet-Lawyer" logic against actual lawyers. I feel that you should read how well that turned out for him, because that's the level of argument you're trying to use right now.

"I didn't upload the games myself!"

"Why did you write that you did in your own defense statement then"?

Good lord I wonder how he lost?

Also I have to wonder not only at the stupidity of the guy but also the court, they fined him 1.7 million but shut down his site. I'm not saying what he did was good or bad or that I'm defending him or piracy or whatever, but I find it's like the MAFIA thing where someguy owes them money and doesn't pay up so they break his legs, well duh now he can't pay at all because he can't make an income.

Surely the better thing would have been to make a court order that any and all proceeds from the site go towards paying the debt? Ordering it to run and only shut down when the agreed amount was reached? I'd have to get my Intellectual Property law textbook out but I'm sure there have been cases (in the UK, which I know are not the jurisdiction in the example) where the pirated works legal and/or beneficial title is passed onto the person infringed. I recall one case in the UK, the names escape me but where a music artist used a sample without permission from another artists song and the subsequent song royalties (I'm not sure if the legal ownership was also tranferred) were ordered to go to the owner of the sample used completely from then on irregardless of any other work done around that sample to create a new track.

That said I liked the defences he gave:

1) I didn't upload the games, other people did. - But he contradicted this in his written statement that he or his admin uploaded the ROMS of the games to the site. I think this is what ultimately got him to be honest. Now I'm not sure about California law but in the UK we have the doctrine of vicarious liability so even if someone else did an infringing act such as the admin you can be held liable for their actions.

2) I'm protected by DMCA Safe Harbour Law. -This is actually a good defence to argue, except that he destroyed his own defence when he said he uploaded ROM's of the games himself. That and he submitted the argument at the wrong time and thus gave rise to procedural impropriety. Also under section C of which he saught to rely it states that the person must be unaware the content is infringing and must derive no monetary benefit from it, he was charging for premium membership and so the defence doesn't apply.

3) Nintendo doesn't own the games because of First Sale Doctrine. - Which is an individual right to do with property as he/she has legally obtained, key words being legally obtained. Just because the first upload was legally obtained by that uploader does not mean title and such a right passes onto every downloader. It also only applied to the first or original file, not subsequent copies or derivative works.

I've probably gone more into depth that I should have for a forum post on a pirate site but Law is fascinating to me.

You must be registered to see the links

You must be registered to see the links

You must be registered to see the links

The court files themselves for anyone who wants to read about them.

You must be registered to see the links

DMCA legal stuff.

You must be registered to see the links

- First sale doctrine.

Had to look them up.

 

[Gwedelino]

I thought about that, and there's something that everyone (including me) tend to forget when it come to this kind of subject: if you're sued, your fucked and you'll loose, this whatever the court can possibly decide.

Face to Justice, you're not anymore Anne O'nymous, C3p0, or Glacial_cry, you're there under your real identity... And, if some of us don't care this much, for others it would be a real issue that can put them in way more troubles than the trial itself.
In most countries, all the process will be public, from the indictment to the sentence, passing by the trial itself. Of course, for most cases you'll never know that it exist unless you are searching for it. But searching for it, isn't it what your boss risk to do when you'll ask of a day off because you're sued ? Searching for it, isn't it what your friends, and families, risk to do when you'll be out of yourself because of the trial ?

So, before anything else, isn't the risk to be publicly uncovered as creator of a lewd/porn game the most important one ? And therefore the one you must keep in mind when you've to weight the benefit/risk balance ?
If you are not ready to be uncovered, or if it could seriously mess with your life, you should consider that no benefit worth this risk. Because, if you end face to a vicious IP owner, he could perfectly not care about the fact that suing you would cost him more than he can win. Uncovering you, and therefore sending a clear message that if someone mess with him, he can destroy his life, worth more than all the money he could get...

I don't want to give irresponsible advices, but at the very same time, the risk of finding yourself in this kind of situation is extremely, extremely low, and this because :

- Not all IP owners are very protective of their content.

- Nearly all the porngames projects are completely unknown from the population.

- It takes a lot of effort to tackle every little project. IP owners focus on the big ones (which aren't the porn ones).

- Getting sued is often the very last step, in general devs will have plenty of opportunities to stop before crossing the red line.
Extreme cases are always people who are willing to go to the very end, ignoring all the warnings before.

I don't know of any case of trial that happened because of a porngame. (copyright infringement)
I have heard of a case of a cease and desist letter for 1 Nintendo Parody porngame, but that's all.
Yet there are hundreds of parody porngames on F95 right now.

 

[anne O'nymous]

Never bought and never will this narrative of it's ok to create a game where you can smash a character's head in so many different ways but it's not ok to simulate some virtual sex...

You totally missed the point. Remove your blinders, there's way more than a simple morality crusade here.

Take a look at the threads here, there's on made by a creator who've been fired because he was doing an adult game while working for a familial recreational park (or something like this). He would have been fired the same if he was making a game where you can smash a character's head in any possible way, as well as for any other activities that would have harmed the image of the park.
Same if you works for a game studio with a clause of none concurrence, or if the fact to be sued could tarnish the image of company you works for.

And, as I said, the issue isn't limited to that, it also regard your friends and family. Making a game where you can smash a character's head in so many way, when your mother is the head of an anti-violence association, isn't a good idea by example.

I don't want to give irresponsible advices, but at the very same time, the risk of finding yourself in this kind of situation is extremely, extremely low

I never said the opposite.

But what you wrote is part of the risk/benefit balance. The risk to be caught can be extremely low, if the consequences is to see your life totally ravaged, is it a good idea to take it ?
I don't know the answer to this question, and in a way I don't care about it. I'm not saying, "don't do it", nor, "it will happen", I'm saying, "know what the worse can be if it happen".

 

[♍VoidTraveler]

All you need to know about copyright is that you need to copy it right.

 

[danarchist_lewd]

If you aren't making money, it would be considered Fair Use if the work is significantly transformative. Significantly transformative would mean that it cannot be considered a viable alternative to their product (ie why buy the original when I can just buy this game?)

*however* regardless of what you do, if a company decides they can send a Cease and Desist order, which you will likely want to follow. If you don't, they'll sue you and even if you could win the cost in time and money makes it not worth it.

How likely your are to receive a cease and desist is largely based on what companies you are taking content from, and how large your project becomes. I think generally speaking most of these companies don't want to sue smaller creators because it makes them look bad, but they will if you don't comply when asked.

Also, the kinds of "it was already stolen so I thought it was okay" and "the game is free, I just make tips from a link attached to the game" arguments you're putting forward would absolutely not fly. Don't try to be cute.

 

[kintarodev]

You totally missed the point. Remove your blinders, there's way more than a simple morality crusade here.

Take a look at the threads here, there's on made by a creator who've been fired because he was doing an adult game while working for a familial recreational park (or something like this). He would have been fired the same if he was making a game where you can smash a character's head in any possible way, as well as for any other activities that would have harmed the image of the park.
Same if you works for a game studio with a clause of none concurrence, or if the fact to be sued could tarnish the image of company you works for.

Yes I guess I put a different scope on the topic discussed, but I can't agree I was wrong or not. It was just a different angle.

The cases you pointed are also very specific, and let's admit it, just poor personal decisions in clearly inapropiate scenarios (who makes ''''adult stuff''''/'''porn''' at work???)

All you need to know about copyright is that you need to copy it right.

Indeed. Will never get tired of recommending this manifesto:

 

[moskyx]

Yes I guess I put a different scope on the topic discussed, but I can't agree I was wrong or not. It was just a different angle.

The cases you pointed are also very specific, and let's admit it, just poor personal decisions in clearly inapropiate scenarios (who makes ''''adult stuff''''/'''porn''' at work???)



Indeed. Will never get tired of recommending this manifesto:

View attachment 2568833

I don't think you understood the examples given. 'Making a game while working for a family recreational park' doesn't mean the guy was using the company's computer and showing his DAZ models in the frontdesk screens, just that he was an employee doing those games at home in his free time, yet he was fired once this hobby came out to light because having a dirty old perv as an employee allegedly had a reputational cost for the company. Those are the potential consequences people have to ponder when choosing to become an adult game dev: would you be actually 'safe' if someone links your creations with your real self?

 

[Wankyudo]

I don't want to give irresponsible advices, but at the very same time, the risk of finding yourself in this kind of situation is extremely, extremely low, and this because :

- Not all IP owners are very protective of their content.

- Nearly all the porngames projects are completely unknown from the population.

- It takes a lot of effort to tackle every little project. IP owners focus on the big ones (which aren't the porn ones).

- Getting sued is often the very last step, in general devs will have plenty of opportunities to stop before crossing the red line.
Extreme cases are always people who are willing to go to the very end, ignoring all the warnings before.

I don't know of any case of trial that happened because of a porngame. (copyright infringement)
I have heard of a case of a cease and desist letter for 1 Nintendo Parody porngame, but that's all.
Yet there are hundreds of parody porngames on F95 right now.

While that might be; it just takes one person to set the precedence in court and everyone who follows is just perpetually fucked.

The thing about the people who ask about copyright questions is, their question boils down to "what protection does my game have if I use copyrighted content?" There's only one answer to that question. "None." Everything after, "It doesn't happen a lot," is irrelevant to the question. Hell, even the comments on Fair Use doesn't really apply because 1. Users do not have distribution rights to the videos they cut the clips from and 2. If the video is not legally obtained (like the stolen clips thing OP said) then it's all fruit from the poisonous tree.

The doom and gloom stuff isn't meant to scare people into not making the games they want to make. It's meant to make them understand that if they use copyrighted content in their game, then that game by default is on borrowed time. It could be a day, it could be a year, it could be a century. Hell, maybe they never get hit by it; but the truth is it's easy to tell someone that probably nothing is going to happen but what people fail to understand is that it's not our ass on the line. It's the devs, and blowing smoke up his ass isn't going to do him any favors because the worst case scenario is his life is perpetually fucked while ours still isn't.

 

[Meushi]

Also I have to wonder not only at the stupidity of the guy but also the court, they fined him 1.7 million but shut down his site. I'm not saying what he did was good or bad or that I'm defending him or piracy or whatever, but I find it's like the MAFIA thing where someguy owes them money and doesn't pay up so they break his legs, well duh now he can't pay at all because he can't make an income.

Because Nintendo care about stopping the infringing, not the money. Like the mafia, they're more interested in making an example of infringers to scare off others, than recovering the costs of any particular infringement. Seems to be pretty standard practice, that's why copyright trolls are a thing. Or Disney spend money to chase down small fry infringing on their IP.

he was fired once this hobby came out to light because having a dirty old perv as an employee allegedly had a reputational cost for the company. Those are the potential consequences people have to ponder when choosing to become an adult game dev: would you be actually 'safe' if someone links your creations with your real self?

I agree with the general point (significant risk of reputational damage & economic loss), but in this particular example the employment contract the dev had signed specifically forbade working on adult material. Said employment clause was for the reason you discuss, to protect the business reputation. But the risks of discovery for the dev were a bit more clear cut in this case.

 

[Hagatagar]

Because Nintendo care about stopping the infringing, not the money. Like the mafia, they're more interested in making an example of infringers to scare off others, than recovering the costs of any particular infringement.

Mario is Italian...
Nintendo using Mafia Tactics...