Hello!
I have a legal question about developing games, and I wasn’t sure what category to put it under.
I have a game using photos I have taken, and some of them happen to have logos in them, for example publishing company logos on the spines of books on a bookshelf, logos on bottles in a bathroom bag, logos on boxes, tools, or bits of paper on a desk, that sort of thing.
My question is, do I have to find some way to obscure or scramble all these logos before I publish the game online?
Thanks in advance!
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I’m not a lawyer - nor do I play one on tv - but while it may be possible in practice to not draw attention by doing that, I believe you would be in technical violation. And if somehow someone decided to take notice, they could cause you a lot of problems even if the legal system ultimately declines to punish you.
Blurring out the logos would probably be a worthwhile step. Certainly much simpler than replacing them.
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I’m not a lawyer either but I’m pretty sure “incidental inclusion” of trademarks - when they happen to appear on things in a wider picture - is generally OK. (Otherwise there’d be few urban places in the western hemisphere that it was legal to publish photos of.) From the first google result I find:
The question of incidental inclusion of trade marks was considered in the Trebor Bassett case in relation to cards with images of footballers wearing shirts showing the trade mark. The court in that case found that the publisher was not “using” the trade mark within the meaning of the trade mark legislation.
And the logo on a footballer’s shirt on a football card would be much more prominent than what you’re talking about.
(I’m surprised that case happened, because surely the whole point of putting your logo on footballers is that anyone who sees the footballers in question sees your logo, but capitalism is weird.)
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This was what I thought, because though I knew it could be a problem (because the bounds of human stupidity surpass the bounds of human comprehension) it would bring up the question: how is it legal to take pictures at all?
But I thought it would be more problematic for including pictures in an artistic work that could be called commercial (though my game will be free to play online).
I googled it too, but only got vague and unhelpful results. The example of the footballers is just right. Thanks!
I’ve seen many examples of video and film taken of actual life in which logos were blurred. Why commercial photos would be fine, but commercial video not, completely escapes me. It might have something to do with the perceived audiences, or maybe the size of the pockets of the publishers - I don’t know. Sometimes I suspect that laws about product placements and advertisements might have tried to kibosh people who try to sneak ads in, and so people who aren’t trying to promote products would be violating a law.
A key difference might lie in the distinction between documenting reality and creating an artistic work.
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Context and purpose have a lot to do with the reasons things are blurred for legal reasons. You (royal ‘you’) can try and infer why it happened from a situation, but you may not be right.
A common one in Australia is that the ABC, our national broadcaster, can’t be seen to be promoting commercial third parties, a point enforced with some probably semi-complex legislation, and/or in their charter. So in a lot of their in-house factual/science programs, logos are blurred on computers (e.g. Apple symbols on laptops) or products when they appear. But not all. It depends on what’s seen to be happening in the program, the message conveyed and what the subject matter is. And again, this is ABC-specific.
If you think about the purposes of trademarks as intellectual property, questions you can ask yourself in terms of ‘what’t the likeliness of aggravating the trademark owner through this image’ include - does it look like you’re explicitly leveraging someone’s trademark for your own gain (of any kind)? Could you intentionally or unintentionally be seen to be deceiving someone into thinking the trademark owner is affiliated with you, or endorses what you’re doing? Are you adding a ton of value to your image (e.g. massively increasing the chances people will be interested in looking at it) by including the trademark, that you wouldn’t get without having the trademark present? etc. In the case of casual inclusion in a photo, the answers will usually be no.
-Wade
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