What are the legal issues when using copyrighted images to advertise a product that doesn&#39;t contain them? I was on YouTube a couple of days ago watching a video that looked at mobile game advertisements and whether or not they were reflective of the product. To give an example, one game used online ads of supposed game footage with some of the characters being creatures from the Pokémon franchise. However, the actual game doesn't contain these characters at all. On the one hand, I wondered if while the ad could likely be removed on copyright grounds, would the game itself be shielded by not actually including these characters? On the other hand, is advertising a product as though it is connected to a franchise it blatantly isn't not also violating some advertising standards agency's rules of misleading advertising? It obviously seems wrong to be using someone else's work in this way, even if your actual product doesn't contain it, but I'm intrigued by what the actual legalities are here.
The issue you identify isn't really a copyright issue. The same issue would arise if the product contained public domain images in the advertisements that aren't present in the work itself. Essentially, the question comes down to whether there was actionable deceptive advertising. Usually, these claims arise under specialized consumer protection statutes that offer remedies and means of enforcement different from an individualized fraud lawsuit, and usually a deceptive advertising claim is easier to prove than traditional fraud lawsuit. Traditional fraud lawsuits normally require a showing of damages caused by reasonable reliance upon the misrepresentation, which is uneconomic to prove in the case of an individual small consumer purchase. Usually, deceptive advertising of consumer products is established in a lawsuit by a government official in charge of regulating deceptive advertising or a class action lawsuit, and often statutory damages are assigned to each violation rather than requiring detailed proof of economic harm for compensatory damages from some but not other images being present. Often fine print in the advertisement or in a purchase form before buying the product discloses the disconnect. Also, the mere presence of an image in an advertisement doesn't necessary imply that it is included in the product. So prove of deceptive advertising liability in these cases is often difficult even with these relaxed standards. There are many gray area and close cases, and often, businesses settle these lawsuits rather than litigating them. A more specific answer would require knowledge of which jurisdiction's laws apply, which is often a non-trivial question in Internet based advertising lawsuits.
This kind of quotation, for commentary, criticism, or reference, is generally allowed without obtaining permission. In the US, this falls under fair use (see 17 USC 107. In the UK and most commonwealth countries, it falls under fair dealing. In other countries there are various exceptions to copyright that will probably cover this. Even answers that do not directly quote the rule books often use information from those rulebooks to write an answer. Facts and ideas are never protected by copyright, so this is not going to be an issue. See 17 USC 102(b), which provides: (b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. As a comment by user Trish reminds, game rules are facts and are not protected, although their exact wording may be.
No. The images are copyrighted, and you are using them in a way that would leave you with virtually no argument for fair use. The factors for fair use are set out in 17 USC 107, and they indicate that the courts would reject your use: The purpose and character of the use, including whether it is of a commercial nature or for nonprofit educational purposes: There's no indication that your use would be for nonprofit or educational purposes. The nature of the copyrighted work: Works of fiction and art are highly creative works at the heart of the policy for copyright protection. The amount of the portion used in relation to the copyrighted work as a whole: You are apparently copying entire images, though I suppose you could argue that each image is just one small portion of a larger book or website. The effect of the use upon the potential market for or value of the copyrighted work: You are trying to create a board game, putting yourselves basically in direct competition with the makers of D&amp;D. I generally prefer a pretty liberal interpretation of what constitutes fair use, but this just has virtually nothing that would make me comfortable arguing in your favor.
It doesn't make a difference if the product is free or commercial use, if it's initiated by a company or an individual. What you are considering would be a &quot;derivative work&quot; and without explicit permission from the copyright holder, it is considered a violation.
No It says right on the page you linked: These downloads are not public domain, as they are parts of content that has already been licensed and distributed. Although using these downloads may be permissible as long as the project itself falls under the rule of "Fair Use," it is ill-advised to use these downloads for any project intended for profitable gain or commercial advertisement, unless otherwise stated by Kyutwo.com.
If any elements of the game are protected by copyright, then you cannot reproduce those elements (17 U.S.C. §106) unless your reproduction falls under a fair use exception (17 U.S.C. §107). Elements that may be protected by copyright include: artwork specific language on each card the aggregate effects of the cards (i.e. copying a single card's effects might not infringe copyright, but if you copy the effect of a bunch of the cards, such that you are taking expression of the original author's creativity, that might infringe, even if you change the words used) Whether an element of the game is protected by copyright is a fact-intensive question that would depend on the specifics of the game. Whether your copy infringes is likewise a fact-intensive question that would depend on what you copy. Fair use is also a fact-intensive, case-by-case analysis, but in my opinion, it is likely that creating a computer program derivative work (17 U.S.C. §101) of the game for your own personal education would be considered fair use. From a practical standpoint, even if it were not fair use, it would be near impossible for the copyright owner to discover. Posting the code on GitHub tips the scales away from fair use because of (17 U.S.C. §107(4)): "the effect of the use upon the potential market for or value of the copyrighted work." But, none of the factors are determinative on their own. You ask: I likely cannot simply change all the names of the various cards to something else, right? I agree. In my opinion, the selection and arrangement of the effects attributed to each card is an expression of the author's creativity, and no matter what you call the cards, copyright in the game would be implicated if you retained the effects associated with each card. If I start changing the rules of the game, does that make it legal for me to share my source code, for instance? At some point, it will be an entirely different game, so certainly, in the limit, your work would not be infringing. We can't answer where that line is, but in general, the less of the original author's creativity that you re-use, the less likely a ruling of infringement. Also, in general, the more transformative your work is, the more likely a fair use exception would apply.
Copyrights protect the mark as is, and derivatives of it, but does not protect the brand from look a likes or from new trademarks that would be confusing. Consider the Pepsi logo: I could easily draw a circle half red and half blue with a white line straight across, vertically, or diagonally. In fact: © 2018 A. K. all rights reserved. There it is my new logo for my cola company called Hep-C (I'm raising awareness). Under copyright law Pepsi could not come after me because the logo is my own creation. I could even call it Pepsi and it would not be a copyright violation as you cannot copyright words. However, Pepsi has better lawyers than that and with my trademark so similar to theirs and the name sounding so similar (and my new name being potentially disparaging to Pepsi) it would likely confuse consumers between what was Pepsi and what was Hep-C thus under trademark law it would be disallowed for commerce. Now you would have common law trademark protection by virtue of using your mark in commerce, but it would only be for the states in which you used it. Additionally a lack of a registered trademark would disallow you from seeking statutory damages under 15 U.S.C. § 1117.
This is likely not fair use. At first blush it appeared similar to things one might see in The Onion (parody print and online newspaper) or other parody publications or shows (SNL, Key and Peele, etc.). In this case, the context would have likely been deemed transformative. However, since they are selling coffee called "Dumb Starbucks" while using their trademark, they would be be found liable if sued. You can parody a trademark brand, so long as the work is transformative such that the use of the brand goes from selling coffee to making a commentary in which the brand itself is relevant. Amendment I don't think this would pass the test as a parody/commentary. Originally, I failed to notice that they are actually selling coffee. This takes it out of fair use and they would almost certainly lose if sued. If they never sold the coffee, but just had it open as a performance art (like I had originally read this) giving the coffee away to complete the parody, I think they'd be fine. However, they are literally using the Starbucks logo, and selling the same product. This is clearly an infringement of their copyright and not fair use. Sorry for the confusion.