Could Capcom intentionally use someone else's work in their games: Semenov&Pevzner comment

Over the weekend, Capcom faced a multimillion-dollar lawsuit from designer Judy Juracek. She accused the company of illegally using her photos in games. Roman Lukyanov, Managing Partner of Semenov&Pevzner law Firm, said App2Top.ru about the specifics of such lawsuits, as well as whether Capcom could have committed intentional plagiarism.Evgeny Obedkov, App2Top.ru : The designer demands up to $12 million in compensation and payments of up to $25 thousand for each photo used.

Is it possible to say that such an amount is justified, or is the court unlikely to satisfy the requirements in full?

Roman LukyanovRoman Lukyanov, Managing Partner of Semenov&Pevzner Law Firm: The USA is the progenitor country of a very important and interesting sanction: statutory damages.

Statutory damages are a legally fixed amount (a fork “from and to”) for copyright infringement. It does not depend on the actual losses of the copyright holder and is collected upon the fact of violation.

Statutory damages are established by American law both for copyright infringement itself and for the removal of copyright information.

The

standard range for statutory damages established by American law is from $750 to $30,000. If the violation is committed intentionally, the court has the right to appoint a larger amount — up to $ 150 thousand. Actually, the plaintiff in this case appeals to this rule and asks to recover the maximum ($ 150 thousand for each of the 80 photos, which is $ 12 million).

The

second amount (from $2.5 thousand to $25 thousand per photo) is a separate violation, statutory damages for the removal of copyright information (copyrights). This range is also established by law. 

Since the final amount of statutory damages is determined by the court based on the outcome of the case, in general, the situation is quite ordinary. The US jurisdiction is famous for large compensations for copyright infringement, so hypothetically such requirements can be satisfied. However, I believe that at least in the declared amount this will not happen. 

Many years have passed between the release of the games (Resident Evil 4 was released in 2005, and Devil May Cry – in 2001) and the filing of the lawsuit. Is it possible to explain why Yurachek went to court only now?

Roman: Probably, Yurachek is not a gamer, so she didn’t know anything about the Resident Evil series and the content of its textures. But seriously, then you can guess endlessly: the plaintiff really did not know about the content of the game, because she does not play; the plaintiff decided to make money in this way; the plaintiff benefited from this state of affairs for some time, and then difficulties arose (for example, financial). I believe that in the process this issue will be established as accurately as possible.

Could such a large company as Capcom accidentally allow copying someone else’s work? Or does the evidence given (more than 200 examples of copying) indicate intentional plagiarism?

Novel: I am almost convinced that Capcom would never commit intentional plagiarism. Such large companies have a powerful internal compliance system for checking all assets used. Capcom is well aware that the use of someone else’s intellectual property is not only a potential loss of millions, but also an image risk. So I have three versions of what happened:

• there is some reason that Capcom allowed to use photos of Yurachek, which we don’t know about yet, but we can find out from the company’s review;Capcom did not use the photos themselves, but used real textures, having visited the same place where the plaintiff was, and using the same references (i.e., the rights to the photos do not create a monopoly for the photographer on the photographed objects, including natural textures);
• it is unlikely, but still — Capcom compliance failed, and these assets were simply missed, without seeing any authorship and violation in them.
• As one of the proofs, Yuracek uses examples (coincidences in file names) from a major Capcom leak that occurred in November.

Is it correct to use such documents in court?

Roman: As far as I understand from the lawsuit, such a match is established only in relation to one file. This is a very weak argument. As for the possibility of using such evidence, of course, the court may find them inadmissible. 

How often are plagiarism lawsuits filed against gaming companies, and does the court always side with the copyright holder?

Novel: I would not say that this is a very popular kind of litigation. Although in the last five years there have been much more such disputes (a lawsuit by dancers against Epic Games and Take-Two due to the use of their dances in Fortnite, a lawsuit by the authors of NBA player tattoos against the developers of the NBA 2K basketball simulator series, a lawsuit by Duke Nukem 3D composer against Valve and Gearbox). 

The court does not always side with the copyright holder, so Capcom definitely has a chance.

Will this case be able to set a precedent and encourage both copyright holders and gaming companies to take the issue of copyright protection more seriously?

Roman: It’s too early to talk about it, because we don’t know the outcome of the process. If Capcom’s fault is eventually established, I don’t think it will change much in the market. Large companies already have quite serious internal procedures for checking content for the purity of rights. The maximum that this can lead to is debugging some internal verification processes. But, as the experience of large projects shows, the risk of violating someone’s copyright will always remain to some extent.