What to do if your video game art is being used in advertisements without your permission

Recently, this article posted on Polygon outlining the many commercial uses of the iconic watchtower image from Firewatch.

These uses were not authorized by Campo Santo, the developer, which leads to the question: what do you do if you find yourself in this situation?

*This image is decidedly not from Firewatch.

First, pat yourself on the back. You made something so good people want to copy it.

Then, regroup. There are a few options, but they depend a bit on how it is used and what your goal is. We will start with how is it used.

Is it used for a purely commercial purpose? In the Firewatch situation, companies as big as Salesforce pilfered the work for entirely commercial purposes: advertising. When this happens, you have great options. More on those below.

Is it for something less-than-purely-commercial? You may want to consider whether the use is a “fair use” under the law. If it is a screengrab for a review or a related news story, for example, you probably should back up and let it go – that would be a solid fair use defense against any claim you might raise. You can search the internet and find hundreds of different definitions of “fair use,” but your friendly neighborhood lawyer will be happy to talk through these issues with you.

Of course, many situations will fall in between those extremes. That’s what lawyers call “grey area.” It’s a technical term.

Then we move on to what your goal is.

If your goal is just to stop the use of your work, there are a few options. If it is on the internet, odds are you can submit a DMCA takedown notice to the host of the site. If the site is hosted by the infringer (as might be the case if the use is by a really big company), or if the infringement is not online, you can send a cease and desist letter.

Cease and desist letters are like sending a shot across the bow. They say, “hey there, I see what you are doing and I don’t like it. Knock it off or I will really do something about it.”

Then, if the cease and desist letter doesn’t get the result you are hoping for, you can file a lawsuit for copyright infringement.

If your goal is to extract a payment from the company using your image, you could go a different route. It might be worthwhile to try first to extract a license fee from the company. Consider what you would have charged if they had approached you first. Try to find the appropriate contact at the company to say “hi, I love that you love my work. I usually charge $____ or ____% for a non-exclusive right to use imagery from my game. I’d love to discuss an appropriate deal in this case.” Then, if that fails, you can still resort to the cease and desist and formal legal action.

Of course, in all of this, a competent and qualified video game lawyer can be a huge help.

Brandon J. Huffman

Brandon is the founder of Odin Law and Media. His law practice focuses on digital and interactive media, entertainment, internet related issues and crisis communication. He serves as general counsel to the International Game Developers Association and is an active member of many bar associations and community organizations. He can be reached at brandon at odin law dot com.

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