Bethesda Lawyers After Fallout Fan Site

By compl3x
in Gamers' Hangout

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Grand Master

compl3x

Posted
Posted

uqEwR.jpg

Erling Andersen loved Fallout so much he started his own website where he offered Fallout-style posters for fans to download for free.

Bethesda did not appreciate this.

Andersen said he registered the domain name Fallout-posters.com last December, only to have Bethesda lawyers contact him weeks later asking for the website to be taken down and for the website name to be handed over.

"Now, I?m not out looking for trouble. I set up the website out of pure 'fandom', and the last thing I wanted ? or expected ? was to be threatened with a lawsuit by Bethesda," Andersen wrote. "What ****es me off isn?t the fact that they?re looking out for their trademark ? as they have every right to do so. What I?m ****ed about are large companies abusing their monetary power, hiring global law firms to go after a fan online, immediately threating with a lawsuit.

"Had they had the slighest bit of PR-savyness, they would have shot me a quick personal mail asking me to remove the (supposed) infringing content ? and preferrably sent me some nice Fallout-swag as a nice gesture (yes, I am that corrupt)."

Andersen has removed the posters from his website, but still remains the owner of the website name.

Game Informer has contacted Bethesda for comment.

Grand Master

compl3x

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I don't entirely agree with the way Bethesda handled this but they had the right to do what they did.

Yep. Threatening a lawsuit is overkill. Simply telling the guy to take them down would have sufficed.

  • HighwayGlider and remixedcat
  • Like 2
Grand Master

+Nik Louch Subscriber²

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  • Subscriber²
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I don't entirely agree with the way Bethesda handled this but they had a legally binding obligation to do what they did.

Let me just alter what you said.

As I've said in many many other threads - if you coyright something, you are legally bound to protect that IP for the term of the copyright - you HAVE to. Else it could be used to cite a precedent in a court case. I don't like the system, but there it is...

Grand Master

Lamp0

Posted
Posted

Let me just alter what you said.

As I've said in many many other threads - if you coyright something, you are legally bound to protect that IP for the term of the copyright - you HAVE to. Else it could be used to cite a precedent in a court case. I don't like the system, but there it is...

they don't HAVE to do anything, let alone be jerks about it.

Community Regular

watchthisspace

Posted
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Instead of wasting money on ******* lawyers they should spend more money hiring a decent technical team to get rid of the bugs in their games.

No that's the modding communities job :p

  • Jose_49 and MightyJordan
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Grand Master

spacer

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If he created the posters, didn't use official content, and wasn't selling anything based on the IP, then how was he in the wrong? People aren't allowed to create their own fiction/pictures/content based on their favorite games/TV/movies now? Well, there goes half the internet...

  • Brandon H and remixedcat
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Grand Master

Lamp0

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Legally, yes they do! You clearly have no understanding of copyright law.

You're right I don't know copyright law, I didn't say I did. And I am not saying your wrong...

But it's dumb as hell, why would any decent company follow such a law... Just because it's a law? I mean it's a fan who doing posters for free, surely there is some sort of exception here...

Grand Master

remixedcat

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No that's the modding communities job :p

Yeah thats pathetic how they expect the players to do that.. But some things u cant fix on your own and its up to bethsoft to fix

Grand Master

Phouchg

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But it's dumb as hell, why would any decent company follow such a law... Just because it's a law? I mean it's a fan who doing posters for free, surely there is some sort of exception here...

The keyword.

The Scrolls precedent, should it need to be reminded, was just as stupid. Legal department sees an opportunity, they jump on it with all five.

Collaborator

briley

Posted
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Let me just alter what you said.

As I've said in many many other threads - if you coyright something, you are legally bound to protect that IP for the term of the copyright - you HAVE to. Else it could be used to cite a precedent in a court case. I don't like the system, but there it is...

I disagree - Bethesda was not legally obligated to threaten a lawsuit and demand the domain name (side note: domain names are not covered by copyright law). Bethesda was legally obligated to protect their copyright. Copyright infringement, as defined by the US Copyright Office, is (emphasis mine):

As a general matter, copyright infringement occurs when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner.

Bethesda could have just as easily given the guy permission to do what he was doing. They could have started the conversation with a less confrontational email. There are any number of ways to protect one's copyright, I think the argument is that the route they chose may not have been the most savvy.

Grand Master

giantpotato

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Posted

Here's a quote from a guy on Reddit that explains why this guy is completely wrong about pretty much everything in his reply. http://www.reddit.com/r/gaming/comments/scw23/threated_with_lawsuit_by_bethesda_this_was_my/

Unfortunately, you're wrong on each count. And jurisdiction is likely in the United States insofar as your infringement was "directed" at United States consumers, was done on a website subject to U.S law, and affects directly a U.S company.

(1) It is derivative works.

The fact that you consider it "re-imagining" of existing art properties does not make it non-derivative. Use, for instance, of the Pip-boy image as part of your posters is derivative, as is the fact that many are based on existing similar artwork within the games themselves. Reinterpretations are, almost by definition, derivative.

(2) It is unlikely to qualify for fair use.

Fair use is a four-factor test, consisting of (1) The purpose and character of the infringing use (including the level of transformation), (2) Nature of the copyrighted work, (3) Amount and substantiality of the copyrighted work used, (4) effect on existing traditional, reasonable, or likely to be developed markets.

In your case, the purpose and character of the use does not fall in your favor (while it is transformative, it is done without any criticism, parody, or new meaning, it is essentially a simple transformation of art elements from the games to art on your website). In a similar case, a maker of the Seinfeld Aptitude Test were successfully sued (and could not avail themselves of "fair use" protections) by the copyright owner of Seinfeld.

Your argument for non-commercial use is inapt. Commercial use does not disprove fair use, but "non-commercial" use does not prove it. Non-commercial use, especially in the context of "I do it for free" does not aid your argument, as it still competes with a traditional market for derivative works.

The nature of the work is unimportant here except insofar as it is entirely a creative work, and so deserving of complete copyright protection.

You have taken a substantial part of their art assets and concepts. And while concepts cannot be copyrighted, the particularity of these concepts would entitle them to protection.

Finally, we come to the impact on the market. There is a market for posters, and Bethesda currently licenses to other poster-makers. Your actions, while not profiting you personally, have an impact on that market. You have violated the copyrights of Bethesda, and would be unlikely to succeed on a claim of fair use.

Furthermore, as the Supreme Court found in Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994), the existence of a market into which the plaintiff has not entered does not aid a fair use defense. And, as in the Second Circuit held in Castle Rock Entertainment Inc. v. Carol Publishing Group, 150 F.3d 132 (2nd Cir. 1998) a copyright holder's refusal to enter a market does not diminish their right to exclude others from it.

Your claims regarding a lack of confusion about the name (and too-cute-by-half argument that the word "fallout" cannot be protected) ignore that the analysis is a factual question, and which (in this case) you are likely to lose.

While I agree it is not in bad-faith, your argument that your domain does not cause likely confusion is factually incorrect. However, that part is irrelevant, since your bigger problem is that you did violate copyright law.

Mentor

Billus

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I'd just call it free advertising and call it a day. The matter should be dropped entirely, this is just going to leave a sour taste in Bethesda's mouth. Continued bad press is far worse than dropping the lawsuit and sending out a public, as well as, personal apology.

Grand Master

Razorwing

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I don't seem to understand why Bethesda did this. It's not like the guy is making a profit off the site or anything. Fan advertising is the best and free way to get your name out there. Doesn't cost you a penny to do that.

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