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 Harper & Row v. Nation Enterprises is a bad fit. In that case the issue was more relating to the financial impact that that first publication gained (or lost) by the material published. In this case, the prerelease deals primarily with information that becomes freely available from GW prior to the shipment of the White Dwarf. As such, the financial losses would be minimal.

 Sean_OBrien wrote:


(Mega-snip)

Sometimes the pictures are the news, and no commentary is needed - this is generally the case when the new product is graphic in nature or when there is no other method in which a news agency can confirm or relate the story, other than with pictures. In those cases, the courts do not require a transformative or further discussion by the news agent. For example, the courts have found in Nunez v. Caribbean Int'l News Corp (http://caselaw.findlaw.com/us-1st-circuit/1286688.html) that the presentation of facts in copyrightable form do not preclude other sources from using those facts to disseminate those facts. In particular, the Nunez court found the following when weighed against the 4 prong test of fair use:

◾Is the purpose and character of the use commercial or non-commercial?
...
◾The nature of the copyrighted work.
...
◾The amount of the original work used
...
◾The effect on the potential market

(more big snipping)

1: Purpose and character
If Faeit had ads on the page, and IIRC he did, then the infringing use was probably commercial in nature. The minuscule amount of money - if any - actually raised would probably not matter.

The "transformative nature" of the infringing work is also examined with this prong. There's more wiggle room here, but the use is unlikely to be transformative enough to pass muster. He was using photographs of the work for what is arguably the exact purpose of the work itself - to inform GW fans about what is coming in the near future. The assignment I had on fair use this semester was set in the 6th Circuit, so I'm most familiar with the law there. In that circuit, excerpts of academic material in university course packets were found to be insufficiently transformative. Karaoke re-recordings of popular songs were also found to be insufficiently transformative. Unless the 6th Circuit is a very radical outlier, I think this factor will probably be found to weigh against fair use. At absolute best, it would be neutral.

2: Nature of the copyrighted work.
GW is presenting pictures of their creative work (new products) in a magazine that showcases their creative content, which is itself their own creative work. Generally speaking, the more individual creativity that goes in to the work infringed, the less likely that the factor will weigh in favor of fair use. The more the content is like news reporting, or restatements of facts, the more likely it is that fair use will be found.

There is very little chance that anything that GW produces is going to be considered to be "news" for the purposes of fair use analysis. Generally speaking, "North Korea tests nuke" is the kind of news they are talking about. As important as gaming is to us, it's not so objectively important that the public interest in learning about GW's plans would outweigh their first publication right. As far as "facts" goes, for fair use purposes we're talking about names in a phone book, or a baseball score. "Here are the game rules for this new thing" is not likely to be considered "factual." The Harper & Row case would indicate that the deliberate attempt to scoop GW, in the face of GW's first publication rights, will weigh heavily against a fair use determination here.

The court will also look at the material being infringed. The core purpose of copyright is to encourage creativity and the publication of new ideas, concepts, stories, music, art, etc. Games Workshop's material falls squarely within what copyright is intended to protect.

I don't think that there's any question that this factor will weigh against fair use here.

3: Amount of original work used.
This one is a tough call. On the surface, it looks like the limited extent would probably weigh in favor of fair use. At the same time, Harper & Row involved a case where a relatively small portion (13%) of the infringing work was used. SCOTUS still found that the factor weighed against fair use. One of the reasons for that was because the infringing article was focused entirely on the infringing work. That's broadly similar to this case.

There's a chance that this factor will be found to favor fair use, but it's more likely to be neutral or to disfavor fair use slightly.

4: Impact on market.
This is the hardest to determine, largely because the E-Bay ruling threw a big wrench into everything. Justice Thomas wasn't all that clear when he wrote the opinion, and the effect is still a bit unclear.

Probably, if Faeit's work is commercial in nature (and I think it probably is), then it probably becomes his responsibility to show a lack of market effect. Probably, GW can show that this factor favors them with a relatively minimal amount of work. I honestly don't know how to evaluate this factor.


All in all, though, even if we treat the "impact on market" factor as favoring a fair use determination, none of the other factors clearly do, and at least one argues strongly against. I really don't think that a court would be likely to find that Faeit's use of GW's materials is within fair use.

I hope I'm wrong about that, though. I really liked and am going to miss that site.




Automatically Appended Next Post:

 Sean_OBrien wrote:
 Harper & Row v. Nation Enterprises is a bad fit. In that case the issue was more relating to the financial impact that that first publication gained (or lost) by the material published. In this case, the prerelease deals primarily with information that becomes freely available from GW prior to the shipment of the White Dwarf. As such, the financial losses would be minimal.

I wish I could agree.

I think the impropriety of Nation's conduct played a large role in the outcome in the case, and I think it would here. Like I said, I haven't had the time to research fair use with the focus on these facts (but might over the summer, when I'll be doing a lot of IP research). That said, given everything that has been found to not be fair use (karaoke, college course reading packets, etc), I just can't see there being a really strong fair use defense available here. It would be worth a try, but I really doubt it would succeed.

Mike Dunford wrote:


2: Nature of the copyrighted work.

There is very little chance that anything that GW produces is going to be considered to be "news" for the purposes of fair use analysis. Generally speaking, "North Korea tests nuke" is the kind of news they are talking about. As important as gaming is to us, it's not so objectively important that the public interest in learning about GW's plans would outweigh their first publication right. As far as "facts" goes, for fair use purposes we're talking about names in a phone book, or a baseball score. "Here are the game rules for this new thing" is not likely to be considered "factual."

These protections aren't just for scooping north korea. it might not be considered news in your opinion, but anyone who looks at that blog in its entirety will note that it is definitely a news blog. The fair use argument is now in the amount of photos used, which I find somewhat excessive but this would definitely need a court decision to say exactly where the line was crossed, if at all.

GBL wrote:

Mike Dunford wrote:


2: Nature of the copyrighted work.

There is very little chance that anything that GW produces is going to be considered to be "news" for the purposes of fair use analysis. Generally speaking, "North Korea tests nuke" is the kind of news they are talking about. As important as gaming is to us, it's not so objectively important that the public interest in learning about GW's plans would outweigh their first publication right. As far as "facts" goes, for fair use purposes we're talking about names in a phone book, or a baseball score. "Here are the game rules for this new thing" is not likely to be considered "factual."

These protections aren't just for scooping north korea. it might not be considered news in your opinion, but anyone who looks at that blog in its entirety will note that it is definitely a news blog. The fair use argument is now in the amount of photos used, which I find somewhat excessive but this would definitely need a court decision to say exactly where the line was crossed, if at all.

The nature of the copyrighted work factor focuses on the copyrighted work, not the allegedly infringing work. Faeit's use is not the key issue; GW's purpose is. The reason for this is because the copyright act is explicitly intended to encourage the production of original and creative material. When the court examines the factor, they're looking to see how original and creative the copyrighted material is, to see how well that work fits with the intended purpose of copyright.

In general, GW's work is a good fit with what copyright is intended to protect, which is why this factor will almost certainly not favor fair use.

Mike Dunford wrote:
If Faeit had ads on the page, and IIRC he did, then the infringing use was probably commercial in nature. The minuscule amount of money - if any - actually raised would probably not matter.

But by that standard pretty much ANY published work would be "commercial". Every single newspaper article would be commercial, any website that has even a single ad would be commercial, etc. It would be pretty much impossible to pass this test and be considered "fair use" if that kind of small and indirect "commercial" benefit was enough to fail it.

GW is presenting pictures of their creative work (new products) in a magazine that showcases their creative content, which is itself their own creative work.

But that's not true at all. The catalog pages are not creative at all, it's a straightforward listing of product names/pictures/prices. It's about as "creative" as a phone book.

"Here are the game rules for this new thing" is not likely to be considered "factual."

Interesting fact: game rules can't be copyrighted, so fair use is irrelevant in that case.

The core purpose of copyright is to encourage creativity and the publication of new ideas, concepts, stories, music, art, etc. Games Workshop's material falls squarely within what copyright is intended to protect.

Which would be true if Faeit 212 had posted the articles, painting guides, etc. But they didn't, they posted the catalog pages which are not in any way a "new idea". It's purely a factual listing of which products are available for sale at which prices.

At the same time, Harper & Row involved a case where a relatively small portion (13%) of the infringing work was used. SCOTUS still found that the factor weighed against fair use. One of the reasons for that was because the infringing article was focused entirely on the infringing work

Besides the fact that the other three factors in that case were very different from this one, the 13% was too much because it was an important part of the book. The 13% was chosen specifically to reveal something that would have been a major reason to buy the book, and giving away that key 13% meant a substantial reduction in the value of the book. That is NOT true in this case because the catalog pictures are a negligible portion of the value of WD (since by the time anyone can buy the magazine GW has already posted all of that for free on their own website).

Probably, GW can show that this factor favors them with a relatively minimal amount of work.

I would love to see how GW can show with a "minimal amount of work" that there was any non-trivial loss from having the catalog pages posted early when GW themselves already post the exact same information before WD is available to buy.

Mike Dunford wrote:
1: Purpose and character
If Faeit had ads on the page, and IIRC he did, then the infringing use was probably commercial in nature. The minuscule amount of money - if any - actually raised would probably not matter.

The "transformative nature" of the infringing work is also examined with this prong. There's more wiggle room here, but the use is unlikely to be transformative enough to pass muster. He was using photographs of the work for what is arguably the exact purpose of the work itself - to inform GW fans about what is coming in the near future. The assignment I had on fair use this semester was set in the 6th Circuit, so I'm most familiar with the law there. In that circuit, excerpts of academic material in university course packets were found to be insufficiently transformative. Karaoke re-recordings of popular songs were also found to be insufficiently transformative. Unless the 6th Circuit is a very radical outlier, I think this factor will probably be found to weigh against fair use. At absolute best, it would be neutral.

You have to first actually identify what is being infringed upon. The White Dwarf section is a portion of a larger work, as such - just trimming out the creative portions of the magazine (everything after the product pages) would be a significant transformation on its own. I say the product pages are not that creative primarily because their creative effort is not dealt with through White Dwarf - but rather through GW HQ. GW HQ sculpts the figures, they design the box art, they even write large portions of the text for use on their website catalog. Much of the White Dwarf activity for those pages is copy and paste from GW HQ work and minimally creative.

I would assume that you are probably referring to the Zomba v Panorama case in your citation on the karaoke (university course packets can be any number of things...though likely Princeton University Press). As such, the court found it was minimally transformative (as here) but that the nature of the work didn't pass the sniff test. Unlike this case which has a purpose of reporting news - the sole and exclusive purpose of the Panorama karaoke discs was to sell them...there was no purpose to inform the public on things which concern them. Panorama attempted to claim some educational aspect, but in their own filings they fell flat by defining karaoke as "entertainment that allows anyone to grab a microphone, hop on stage, and live out their [sic] fantasies of performing as famous music stars" thereby nullifying their purpose defense. Princeton ran into similar problems as the purpose of the copy house was strictly commercial with no intent to inform or discuss the copyrighted material. The fact that the end user of the infringing material did use them for course work was irrelevant.

As a result - both of those cases do not apply directly here. While the transformative aspect applies to some extent (if you ignore the blurry camera phone pictures and stripping of 80-90% of the other content) than you still have the issue of purpose. The two cases cited were entirely commercial in nature. This case is primarily news related.

While Harper & Row did address that the Nation was attempting to get the "scoop" on their competitor - that isn't exactly the case here. While GW is a publisher, they are also a manufacturer of products. Those products carry with it consumer interest and thereby create a demand for news. The attempt is not to scoop a competitor as in the case of the Nation, rather to inform the public of a new product. In fact GW will end up "scooping" WD themselves prior to the magazine ending up in the hands of most of its readers.

Mike Dunford wrote:

2: Nature of the copyrighted work.
GW is presenting pictures of their creative work (new products) in a magazine that showcases their creative content, which is itself their own creative work. Generally speaking, the more individual creativity that goes in to the work infringed, the less likely that the factor will weigh in favor of fair use. The more the content is like news reporting, or restatements of facts, the more likely it is that fair use will be found.

There is very little chance that anything that GW produces is going to be considered to be "news" for the purposes of fair use analysis. Generally speaking, "North Korea tests nuke" is the kind of news they are talking about. As important as gaming is to us, it's not so objectively important that the public interest in learning about GW's plans would outweigh their first publication right. As far as "facts" goes, for fair use purposes we're talking about names in a phone book, or a baseball score. "Here are the game rules for this new thing" is not likely to be considered "factual." The Harper & Row case would indicate that the deliberate attempt to scoop GW, in the face of GW's first publication rights, will weigh heavily against a fair use determination here.

The court will also look at the material being infringed. The core purpose of copyright is to encourage creativity and the publication of new ideas, concepts, stories, music, art, etc. Games Workshop's material falls squarely within what copyright is intended to protect.

I don't think that there's any question that this factor will weigh against fair use here.

Courts actually do not make the determination of what is newsworthy in their eye, but rather if it is newsworthy for someone. Some people want to know what is happening with the Karhdasians or on Jersey Shore. Other people are interested in technology or other news. This news is focused on miniatures. None of those make one issue more newsworthy than the other in the eyes of the law - it is simply a question of whether or not a portion of the public has a thirst for that particular news. To quote the Nunez court:

Appellee reprinted the pictures not just to entice the buying public, but to place its news articles in context;  as the district court pointed out, “the pictures were the story.”   It would have been much more difficult to explain the controversy without reproducing the photographs.

The issue relating to this prong though is actually the nature of the copyrighted material - in this case photographs and blurps of products. There is minimal creativity applied here, but lets say there is some. As such, the court would view the images as factual (the products) or creative. The impact on the creative aspect though is minimal - that is not done by White Dwarf...instead at GW HQ. If you were to extend the claim back to include GW HQ, the posts on Faeit have minimal impact on the creative aspects - the miniatures - which GW would be protecting with their copyright as their primary concern. That leaves the factual elements of the photographs that tell the story.

In Harper & Row v Nation - the court found that the particular portions of the manuscript quoted were some of the most important words in the manuscript. One could argue quite reasonably that the new product pages are some of the least important pages of the White Dwarf (second only to the store listings I would guess).

I see it very hard how you could not see this as fair use.

Mike Dunford wrote:

3: Amount of original work used.
This one is a tough call. On the surface, it looks like the limited extent would probably weigh in favor of fair use. At the same time, Harper & Row involved a case where a relatively small portion (13%) of the infringing work was used. SCOTUS still found that the factor weighed against fair use. One of the reasons for that was because the infringing article was focused entirely on the infringing work. That's broadly similar to this case.

There's a chance that this factor will be found to favor fair use, but it's more likely to be neutral or to disfavor fair use slightly.

Which is why it is important not to look at how much - but what, and what value it has. As stated (a dozen or more times) product information becomes freely available on the GW site for preorder before readers of White Dwarf get the magazine (before it is even shipped to many independent stores and home recipients...though it seems they are trying to make it concurrent for GW stores). In any case, because those images and descriptions are freely available, the impact on the White Dwarf as a whole is minimal. If they printed the whole of the magazine, or if they were showing other pages outside of the product pages - there would be greater grounds for it not being fair use.

In particular the three cases you cited are not in play. Panorama featured complete songs being rerecorded for their Karaoke discs. Princeton copied complete chapters and articles for the course packets that they sold. Harper & Row dealt with the most important parts - "The Nation took what was essentially the heart of the book." You can not make a serious case that the new releases are "the heart" of White Dwarf.

Mike Dunford wrote:

4: Impact on market.
This is the hardest to determine, largely because the E-Bay ruling threw a big wrench into everything. Justice Thomas wasn't all that clear when he wrote the opinion, and the effect is still a bit unclear.

Probably, if Faeit's work is commercial in nature (and I think it probably is), then it probably becomes his responsibility to show a lack of market effect. Probably, GW can show that this factor favors them with a relatively minimal amount of work. I honestly don't know how to evaluate this factor.


All in all, though, even if we treat the "impact on market" factor as favoring a fair use determination, none of the other factors clearly do, and at least one argues strongly against. I really don't think that a court would be likely to find that Faeit's use of GW's materials is within fair use.

I hope I'm wrong about that, though. I really liked and am going to miss that site.

And again - the impact on the market...none or increasing it. GW release the photos ahead of time on their website. If anything, as found in the Nunez case, this would increase demand by increase the excitement around the release. It is not like the Harper & Row case that actually resulted in a cancelled contract and lost money. It is not like the Princeton Publishing case that actually resulted in students buying the cheaper course packets as opposed to the more expensive text books. It is not like the Panorama case where they skipped on paying the licensing fees for music. No - there is no demonstrable negative impact on the market. White Dwarf sells for the stuff after the new release pages, not because of the new release pages.

Is Faeit deleted, or is it just "blocked'?

Edited extensively to reduce the tl:dr factor as much as possible.

 Sean_OBrien wrote:

Mike Dunford wrote:
1: Purpose and character
If Faeit had ads on the page, and IIRC he did, then the infringing use was probably commercial in nature. The minuscule amount of money - if any - actually raised would probably not matter.

The "transformative nature" of the infringing work is also examined with this prong. ...Unless the 6th Circuit is a very radical outlier, I think this factor will probably be found to weigh against fair use. At absolute best, it would be neutral.

...As a result - both of those cases do not apply directly here. While the transformative aspect applies to some extent (if you ignore the blurry camera phone pictures and stripping of 80-90% of the other content) than you still have the issue of purpose. The two cases cited were entirely commercial in nature. This case is primarily news related.

While Harper & Row did address that the Nation was attempting to get the "scoop" on their competitor - that isn't exactly the case here. While GW is a publisher, they are also a manufacturer of products. Those products carry with it consumer interest and thereby create a demand for news. The attempt is not to scoop a competitor as in the case of the Nation, rather to inform the public of a new product. In fact GW will end up "scooping" WD themselves prior to the magazine ending up in the hands of most of its readers.

Yes, I was referring to both Zomba and Princeton. Yes, the use there was more apparently commercial than the use here. And, yes, I do tend to be pessimistic when I'm analyzing things. Still, I think the "commercial purpose" is going to be a problem for a fair use analysis here. If there was advertising on the page, I think it's going to be difficult to convince a court that the use was not commercial.

As you said, it's important to determine exactly what is being infringed. I'm not sure that's simple, either. There's definitely something to the whole "it's news" argument, but I think that GW might be able to frame the issue as involving the copyright for the individual images within the White Dwarf, particularly where the images are GW's photographs of unannounced and unreleased GW products, and particularly when those pictures are being used for the same purpose (announcing the release of a new product) as they are within the WD.

Mike Dunford wrote:

2: Nature of the copyrighted work.
GW is presenting pictures of their creative work (new products) in a magazine that showcases their creative content, which is itself their own creative work. ...
The Harper & Row case would indicate that the deliberate attempt to scoop GW, in the face of GW's first publication rights, will weigh heavily against a fair use determination here.

The court will also look at the material being infringed. The core purpose of copyright is to encourage creativity and the publication of new ideas, concepts, stories, music, art, etc. Games Workshop's material falls squarely within what copyright is intended to protect.

I don't think that there's any question that this factor will weigh against fair use here.

Courts actually do not make the determination of what is newsworthy in their eye, but rather if it is newsworthy for someone. ...
In Harper & Row v Nation - the court found that the particular portions of the manuscript quoted were some of the most important words in the manuscript. One could argue quite reasonably that the new product pages are some of the least important pages of the White Dwarf (second only to the store listings I would guess).

I see it very hard how you could not see this as fair use.

I think there's a decent argument to be made for fair use (more after reading your responses than before), but I don't think it's the argument most likely to prevail. I certainly don't think this is a clear-cut, slam-dunk example of fair use. (To the extent that there is such a thing, of course.)

As to the rest, this comes right back to the previous discussion about what, exactly, is being infringed. If the infringement is viewed as primarily being the infringement of the magazine as a whole, fair use is more likely. If it's infringement of the photo and accompanying product announcement, probably less so.

Mike Dunford wrote:

3: Amount of original work used.

...
In particular the three cases you cited are not in play. Panorama featured complete songs being rerecorded for their Karaoke discs. Princeton copied complete chapters and articles for the course packets that they sold. Harper & Row dealt with the most important parts - "The Nation took what was essentially the heart of the book." You can not make a serious case that the new releases are "the heart" of White Dwarf.

True. If, however, it's infringement of the photo and announcement rather than the entirety of the issue, that changes a bit.

Mike Dunford wrote:

4: Impact on market.
This is the hardest to determine, largely because the E-Bay ruling threw a big wrench into everything. Justice Thomas wasn't all that clear when he wrote the opinion, and the effect is still a bit unclear.

...
And again - the impact on the market...none or increasing it. GW release the photos ahead of time on their website. If anything, as found in the Nunez case, this would increase demand by increase the excitement around the release. It is not like the Harper & Row case that actually resulted in a cancelled contract and lost money. It is not like the Princeton Publishing case that actually resulted in students buying the cheaper course packets as opposed to the more expensive text books. It is not like the Panorama case where they skipped on paying the licensing fees for music. No - there is no demonstrable negative impact on the market. White Dwarf sells for the stuff after the new release pages, not because of the new release pages.

I think you're probably right about this point, particularly since I'm having a hard time thinking of a way to argue that there is a negative impact. I'm just not sure if that's mostly due to post-exam brain fry or mostly due to a lack of plausible argument.

Sean may have already said this above, but Mike, virtually all news is commercial in some way. Nevertheless, the law construes the commercial intent of news much differently because apart from an intention to make money, there is a public interest in the dissemination of news; which tends to largely be composed of facts. Were it otherwise it would not be news.

Arguably, Faeit's primary purpose is to disseminate information (facts), and to comment on that information, not to make money, and especially not to profit by undercutting the value of another work. As can be seen in the cases Sean and yourself have cited, Courts tend to view the purpose and character of a use within the context of the impact that the use has on the value of the asserted work.

The Princeton case is an excellent example. The copy center was selling a product that derived value chiefly by unfairly appropriating that which gave the asserted work value. Further, the principle motivation for reproducing the content was to create a marketable product, as opposed to delivering information for the purpose of academic discussion. The course packets and the text books were essentially competing products, but the course packets were much cheaper. That the course packets were cheaper goes to the impact that the use has on the value of the asserted work. But, that the course packets were principally a competing product, characterized the Court's evaluation of the purpose and character of the use.

It is not just that the use is a product that matters, but the full and complete purpose and character of that use within the context of its relationship to the asserted work. Virtually all news is a product, and someone is making some kind of money from it, but by its very nature, news has a difficult time being a competing product against anything other than other news. News is also news because it is based on facts, hence there is an implicit assumption that the information being copied is of a factual nature, i.e. if the use is news, it colors all of the other factors, and appropriately so. And on top of all of that, we have First Amendment rights in the US, and a government that considers news to be very much in the interest of the health of our society.

In other words, news gets cut a lot of slack. Hence in the case Sean has cited that was actually about news, even when there was a really important question about whether the content was indeed news, you see a finding of fair use upheld. Most of the cases were you do not see a finding of fair use do not involve news, rather commercial uses of a much different character.

I don't see how Nafta-style "leak-posts" (having posted a few myself) would ever be considered as "news", "reviews" or "commentary" in front of any judge.

States may be different, but in the UK, to be considered criticism or review or news, any material quoted must be accompanied by some actual discussion or assessment and the amount of the material quoted must be no more than is necessary for the purpose of the review.

Posting one or two leaked high-elf pics, followed by a 200 or 300 words of discussion, assessment, comparison with previous high elf sculpts, or those of other companies. Fair Game.
Posting every image you can find with barely a sentence, usually something like "Look! New Pics!" is not news. Or review. Or anything else.

I can't see how, in court, you could ever convince a judge otherwise.

 Zweischneid wrote:
I don't see how Nafta-style "leak-posts" (having posted a few myself) would ever be considered as "news", "reviews" or "commentary" in front of any judge.

States may be different, but in the UK, to be considered criticism or review or news, any material quoted must be accompanied by some actual discussion or assessment and the amount of the material quoted must be no more than is necessary for the purpose of the review.

Again, this is the difference between the UK and the US when it comes to journalism and the law ... which also might explain why the notice that GW served against Google was for the UK version of Blogger.

I think gw buried the hatchet with this one. First they terminate their own forum, then the ban of online sales, then the annual price hikes, then the ban of bits sales online, and finally the termination of a very popular fan blog. I have had enough - they're acting like the inquisition. Their games aren't that fun, not enough for me to spend hundreds of dollars on products that only feed a fascist greed driven machine.

I'm leaning a bit more toward fair use than I was earlier, but only a bit. The thing that would probably nudge me the farthest toward fair use would be a citation to a case where publication of leaked photographs (or similar) was held to be "news" for the purposes of the fair use analysis. I'm going to try to find a bit of time to poke around on that for myself, but won't have a lot, so any help would be appreciated.

Absent that, I'm leaning a bit more toward Zweischneid's view. US law does not require that there be some actual discussion or assessment, but courts do seem happier finding fair use where more has been done to comment on the work.

bad, wonky, quoting here...
there was so much to snip...

GW is presenting pictures of their creative work (new products) in a magazine that showcases their creative content, which is itself their own creative work.

Peregrine wrote: "But that's not true at all. The catalog pages are not creative at all, it's a straightforward listing of product names/pictures/prices. It's about as "creative" as a phone book."


sorry, but the "catalog pages" are actually presented as written descriptions with accompanying pictures...
prices have not been listed for a few years for the new releases...
it is more of a creative work than just presenting a name, pic, and price...
even if you don't think it's quality work, there is a copy writer creating a description of the model's history, what it does in the game, and how the kit goes together...
a little bit more creative than a phone book...

when those pages are scanned and leaked, the writer's work is included on the page...
i'm no lawyer, and i don't know if this gives GW a leg to stand on, but there is in fact "creative work" in the new release section of WD...

cheers
jah

Mike Dunford wrote:
I'm leaning a bit more toward fair use than I was earlier, but only a bit. The thing that would probably nudge me the farthest toward fair use would be a citation to a case where publication of leaked photographs (or similar) was held to be "news" for the purposes of the fair use analysis. I'm going to try to find a bit of time to poke around on that for myself, but won't have a lot, so any help would be appreciated.

Absent that, I'm leaning a bit more toward Zweischneid's view. US law does not require that there be some actual discussion or assessment, but courts do seem happier finding fair use where more has been done to comment on the work.

Ins't that basically what Sean cited? I mean, you can't go looking for a case that is EXACTLY on point with all of the facts. Nunez is pretty darn close.

"Appellant Núñez, a professional photographer, took several photographs of Joyce Giraud (Miss Puerto Rico Universe 1997) for use in Giraud's modeling portfolio.   Núñez then distributed the photographs to various members of the Puerto Rico modeling community in accordance with normal practice.   After the photographs had been taken, some controversy arose over whether they were appropriate for a Miss Puerto Rico Universe, based on the fact that Giraud was naked or nearly naked in at least one of the photos.   A local television program displayed the photographs on screen and asked random citizens whether they believed the photographs were “pornographic.”   Giraud was interviewed by two local television stations as to her fitness to retain the Miss Universe Puerto Rico crown.   El Vocero then obtained several of the photographs through various means.   Over the next week, without Núñez's permission, three of his photographs appeared in El Vocero, along with several articles about the controversy.

Núñez claimed that the reprint of his photographs in El Vocero without his permission violated the Copyright Act of 1976.   The district court applied the fair use test of 17 U.S.C. § 107.1  Focusing on the “newsworthy” nature of the photographs, the difficulty of presenting the story without the photographs, and the minimal effect on Núñez's photography business, the court concluded that El Vocero had met the requirements of § 107 and dismissed the complaint with prejudice."

Nunez has a bunch more in the way of "traditional news" interactions surrounding the use of the photographs.

So - Since Faeit is down - where's all the Eldar rumors!? Seems pretty lame and no new info in 3 days...

Nothing has come out recently.

 Janthkin wrote:
Nunez has a bunch more in the way of "traditional news" interactions surrounding the use of the photographs.

Sure, but it is close enough for congress, and certainly more apropos than Princeton. Come on Janthkin, how often do you get a case that is directly on point with exactly the current set of facts?

The question in Nunez was whether the picture itself was the story, right? There was controversy surrounding the content of the picture, sure, but the picture was much more creative in terms of a work of art than promo pictures of a product. The photograph was itself the thing that had value, rather than a photograph of a thing that has value that also has value as a work of art in some capacity that is distinct from the subject of the picture.

As much as the Nunez case was more 'journalism' it was also more 'art' too. Comparatively, the Faeit case is probably less 'journalism' but also less 'art'.

But at the end of the day, the question of whether the picture is the story is what makes Nunez relevant, and far more so than the other cases referenced thus far.

weeble1000 wrote:
But at the end of the day, the question of whether the picture is the story is what makes Nunez relevant, and far more so than the other cases referenced thus far.

My problem with this scenario is that there was no story. "Look, pictures!" just doesn't look like news to me, in the sense of "this speech deserves protection that supercedes someone else's copyright."

Yes, fact patterns rarely repeat exactly; that's where my colleagues in litigation make their money, after all - convincing a judge that the facts are/are not close enough to this other case. But Nunez is so obviously surrounded with the trappings of traditional news, which are completely lacking here, that distinguishing it seems fairly easy.

 Janthkin wrote:

weeble1000 wrote:
But at the end of the day, the question of whether the picture is the story is what makes Nunez relevant, and far more so than the other cases referenced thus far.

My problem with this scenario is that there was no story. "Look, pictures!" just doesn't look like news to me, in the sense of "this speech deserves protection that supercedes someone else's copyright."

Yeah, from my RSS feed:

There are even more pics of the new High Elves floating around from yesterday and today. So here they are, alongside the ones from Friday so that you can see them all together.

Quality reporting.

 Janthkin wrote:

weeble1000 wrote:
But at the end of the day, the question of whether the picture is the story is what makes Nunez relevant, and far more so than the other cases referenced thus far.

My problem with this scenario is that there was no story. "Look, pictures!" just doesn't look like news to me, in the sense of "this speech deserves protection that supercedes someone else's copyright."

Yes, fact patterns rarely repeat exactly; that's where my colleagues in litigation make their money, after all - convincing a judge that the facts are/are not close enough to this other case. But Nunez is so obviously surrounded with the trappings of traditional news, which are completely lacking here, that distinguishing it seems fairly easy.

And yet was that not the case in Nunez?

"Unauthorized reproduction of professional photographs by newspapers will generally violate the Copyright Act of 1976;  in this context, however, where the photograph itself is particularly newsworthy, the newspaper acquired it in good faith, and the photograph had already been disseminated, a fair use exists under 17 U.S.C. § 107."

Were not the photographs in the Faeit case themselves "particularly newsworthy?" The reason GW disseminated the photographs was to disseminate news of a product release. The product photos themselves are news, rather than having to acquire newsworthiness through allegations of scandal, as in the Nunez case. Without the scandal, there would have been no news in the Nunez case. The scandal had to do with the nudity in the photographs vis a vis the pageant mores, hence the photographs were "particularly newsworthy." In the case of the product release photos, the photos themselves are already particularly newsworthy without having to acquire it secondarily.

The release of those products was highly anticipated in the relevant community. There had already been much discussion about the appearance of said products, the possible existence of said products, and so forth. To write a story about the existence of and appearance of those products, the photographs are rather indispensable and I think one can indeed make an argument that the photographs are virtually the entirety of the story. That an article can be posted, and consumed vociferously, that does little else but display photographs of prints of the photographs is itself an indication that the photos are in and of themselves, a story.

The photos were not disseminated as a means to use them for a profit. They were disseminated because the existence and appearance of hitherto only rumored products is news. People in the community wanted to know. They did not want to take copies of the photos as a means to avoid paying for legally obtained copies of said photos, purchased because of their inherent aesthetic value. They wanted to know what the new products were. They wanted to be made aware of the facts contained in the photos.

This is markedly different from, say, selling as yet unreleased model kits, or copies of a BL novel, or even distributing those things. The nature of the photographs makes them news. GW treated them as news. GW created them for the purpose of disseminating facts, not for being consumed as works of art in their own right.

That is a critical distinction, i.e. the photos are less 'art' than in the Nunez case. The photos did not have to acquire any "particular newsworthiness" because they were inherently newsworthy.

 Janthkin wrote:
My problem with this scenario is that there was no story. "Look, pictures!" just doesn't look like news to me, in the sense of "this speech deserves protection that supercedes someone else's copyright."

It's going to be a pretty bad precedent if fair use depends on being "quality" journalism, and anyone who doesn't do a good job of writing their articles is automatically guilty. Whether or not Faeit 212 is a good author is irrelevant, the post was clearly an attempt to inform the community about news-worthy events.

weeble1000 wrote:

 Janthkin wrote:
Nunez has a bunch more in the way of "traditional news" interactions surrounding the use of the photographs.

Sure, but it is close enough for congress, and certainly more apropos than Princeton. Come on Janthkin, how often do you get a case that is directly on point with exactly the current set of facts?

The question in Nunez was whether the picture itself was the story, right? There was controversy surrounding the content of the picture, sure, but the picture was much more creative in terms of a work of art than promo pictures of a product. The photograph was itself the thing that had value, rather than a photograph of a thing that has value that also has value as a work of art in some capacity that is distinct from the subject of the picture.

As much as the Nunez case was more 'journalism' it was also more 'art' too. Comparatively, the Faeit case is probably less 'journalism' but also less 'art'.

But at the end of the day, the question of whether the picture is the story is what makes Nunez relevant, and far more so than the other cases referenced thus far.

Nunez is a good case, but I don't think it's remotely as favorable to Faeit as others here do:

"This is not to say that appellee's use of the photographs was necessarily fair merely because the photographs were used for news purposes, nor does it establish a general “newsworthiness” exception....Were a “newsworthy” use per se fair, journalists and news photographers would be left with little assurance of being rewarded for their work." Nunez, 235 F.3d. at 22.

"Rather, what is important here is that plaintiffs' photographs were originally intended to appear in modeling portfolios, not in the newspaper; the former use, not the latter, motivated the creation of the work. Thus, by using the photographs in conjunction with editorial commentary, El Vocero did not merely “supersede[ ] the objects of the original creation[s],” but instead used the works for “a further purpose,” giving them a new “meaning, or message.” " Nunez, 235 F.3d. at 23.

"Unauthorized reproduction of professional photographs by newspapers will generally violate the Copyright Act of 1976; in this context, however, where the photograph itself is particularly newsworthy, the newspaper acquired it in good faith, and the photograph had already been disseminated, a fair use exists under 17 U.S.C. § 107." Nunez, 235 F.3d. at 25.

I still think there's a real question regarding the purpose of the original. I think there's a very reasonable argument that the intended use of those pictures on those pages of the White Dwarf was to allow GW to announce their new products in their publication. I don't think the overall purpose of all of the issue White Dwarf is going to be nearly as important as the purpose of the individual section. I'm still not seeing much of a new meaning, message, or purpose in publishing a photo of the magazine product announcement to confirm rumors about what new products are coming, and that's why I'd like another case besides Nunez.

I also think that, even if the leaks can get past the "particularly newsworthy" prong, there's still a problem with "already disseminated," and probably a problem with "good faith."

Mike Dunford wrote:
I think there's a very reasonable argument that the intended use of those pictures on those pages of the White Dwarf was to allow GW to announce their new products in their publication.

Except that argument is undermined by the fact that GW publishes the same announcement on their website before WD is available. The first look is elsewhere, and WD is just supplementary advertising to remind you that you should buy this month's new releases.

 Peregrine wrote:

Mike Dunford wrote:
I think there's a very reasonable argument that the intended use of those pictures on those pages of the White Dwarf was to allow GW to announce their new products in their publication.

Except that argument is undermined by the fact that GW publishes the same announcement on their website before WD is available. The first look is elsewhere, and WD is just supplementary advertising to remind you that you should buy this month's new releases.

Do they? I've been consistently getting my White Dwarf (the iPad version) anywhere from a few hours to a full day or more before the new release/preorder email is sent out.

In any regard, even if they make other announcements before publishing the WD, those announcements are coming after the leaks, and that will matter.

Mike Dunford wrote:
Do they? I've been consistently getting my White Dwarf (the iPad version) anywhere from a few hours to a full day or more before the new release/preorder email is sent out.

The GW website was updated with the new releases the same day that WD was available. Maybe the digital one goes up a few hours earlier than the website if you're willing to wake up at 3am instead of getting your news during regular business hours, but for most customers by the time they can go into a store and buy a copy of WD they've already had access to the website pictures. And of course if they have a WD subscription then they won't get it until long after the website has been updated.

In any regard, even if they make other announcements before publishing the WD, those announcements are coming after the leaks, and that will matter.

No, it shouldn't matter because the whole question of timing is about whether or not denying the "first look" status for WD is financial harm to GW or not. And the answer is that WD isn't the first look, so no damage can be done. The leaks would deny "first look" status to the GW website, but since the GW website posts all of that information for free it would be really hard to argue that the product has been devalued at all.


Automatically Appended Next Post:

 jah-joshua wrote:
sorry, but the "catalog pages" are actually presented as written descriptions with accompanying pictures...
prices have not been listed for a few years for the new releases...
it is more of a creative work than just presenting a name, pic, and price...
even if you don't think it's quality work, there is a copy writer creating a description of the model's history, what it does in the game, and how the kit goes together...
a little bit more creative than a phone book...

First of all, yes, prices are posted in the catalog pages.

Second, things like "multipart plastic kit containing three crisis suits and weapons" are not creative. It's purely factual information about a product, and has no inherent value or appeal beyond its information content. Just like a phone book you would only read it if you're looking for specific information, and you wouldn't care at all about the exact form it is written in.

Finally, the "creative work" of the product description is also posted for free on GW's website. Like a phone book the catalog pages just compile the information into a single source without transforming it in any way, presenting it in a new and interesting form, etc.

i have White Dwarf mags in front of me right now, going back 3 years...
there is not a single price on any of the pics of minis....
i just grabbed the Grey Knight issue from 2011, and the only prices i see are the cover and subscription price and the Games Day ticket price...

the new release section has not shown the price for years...
there was even a big laugh over it when they dropped the prices, as it was said that GW didn't want to scare people off by showing how much the minis actually cost...
that was at least two price rises ago!!!

i'm not sure exactly what you are refering to as catalog pages...
the new release section is now presented (in the new format) as an article, not the same blurb that is on the website's pages...
it has much more text, and the author's initials (i.e., a creative writer signing his work)...
if you are refering to the page where they show the boxes of the minis, with the small blurb, even they don't show prices...

i'm not trying to get on your case here, i'm just saying there is a little more work put into the new release section of the mag (where the leaked pics come from) than you are stating...

by the way, i am a digital mag subscriber, and get mine before the pics go up on the site...

cheers
jah

If creativity is a criterion, then as well as the page layout, photography and text there is also the creativity of sculpting the model and painting it.

While all of this legal analysis is interesting, its not like this will ever come to a trial and when things do go to trial even the accurate legal analysis and reasonable speculation about this or that circumstance may not mean a hill of beans when you throw it in front of a jury.

I dont have a lot of sympathy for faeit's site because the way he was doing things was just asking for trouble, and trouble he received.

Anyone that doesnt know not to "poke tiger with sharp stick" pretty much gets what they deserve.

 jah-joshua wrote:

if you are refering to the page where they show the boxes of the minis, with the small blurb, even they don't show prices...

They do, actually. Page 46-47 of the Tau issue shows all the new releases along with prices in several currencies.