Sometimes, small is better. If you are going to infringe on someone elses' copyright (which no one recommends), you want to go the extra mile to do the absolute minimum.
Like a no-good neighbor, State Farm went there. Allegedly. They took the rap for not changing the wrap on an arcade game cabinet.
To be perfectly pedantic (which is alliteration), I sacrificed accuracy for the sake of a pun. There is a more accurate name for the rap-wrap figure of speech, but it might not get past my host's AI bot.
The case is still ongoing, so the defence, so I must give a nod to the presumption of inncence.
https://www.lexology.com/library/detail.aspx?g=d4cdd315-55e9-410e-afb0-73fafd935e75
The spoiler seems to be that maybe one cannot, if one stops short of doing a through job. Maybe --and this is just my thought-- they would have looked less hand-in-the-cookie-jar if they hadn't changed the name of the game they were ripping off... allegedly. Or, they should have changed everything about the game cabinet.
Brian Murphy tells a great story, and offers a highly readable analysis.
He reminds his readers (and now mine) of the four factors necessary for weighing a Fair Use defence and why the judge ruled against throwing out the entire copyright infringement complaint before trial on the grounds of "Fair Use" on every one of them:
- Purpose and Character of the Use. The arcade cabinet was not used to make commentary or criticism or for any other transformative purpose. Instead, it was used “to invoke the same aesthetic tones intended to be evoked by the artwork itself.” Moreover, the use – in an advertisement – was for commercial purposes.
- Nature of the Copyrighted Work. The cabinet artwork is an expressive, visual work, and not a factual work.
- Amount and Substantiality of Portion Used. The majority of the artwork from the cabinet wrap was visible in the spot (even if partially obscured by the actors in the video).
- Effect on the Market. It is “plausible that the widespread, unlicensed use of Atari’s copyrighted works would impact [Atari's] alleged licensing business.
As a sometime, copyright-related weekend warrior myself, I am fascinated by the role played by social media users in the plaintiff's case. Apparently, so-called "die-hard" gamers recognized the true name of the game, and commented --one infers-- on a State Farm social media page.
We didn't use to have that power.
All the best,
Rowena Cherry
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