Ford Dealership Swipes Game Image For Ad, Thinks It's Kosher Because It Came From A DMCA Compliant Site

from the mmmmm-no dept

A brief review of the many, many posts we’ve done here about the DMCA and its notice and takedown platform will reveal to even the casual reader that the whole thing is rife with complications, abuse, and inconsistencies. It can be a difficult realm to navigate, but there are times when an entity’s claims of ignorance just don’t ring true.

Which brings us to one independent Ford dealership that decided to simply yoink an image from a relatively new video game and use it to advertise automobiles.

A Boston-area Ford dealership is dealing with some internet blowback this afternoon after folks realized that the car-seller had swiped artwork from the indie game Firewatch to promote the “Ford Freedom” sales event.

The Consumerist link then provides a side by side comparison of the image from the game and the ad that the Ford dealership put out. As you will see, there wasn’t even the barest attempt made to obscure the original image in any way.

So, yeah, they pretty much took an image from the game and slapped some copy on the front and pushed it out to potential car-buyers. That’s pretty much as infringe-y as copyright infringement gets. And the use of the image is even somewhat ironic, given that Firewatch is a game that tasks you with traversing the wilderness entirely on foot and this is an ad for a car dealership.

The media began contacting Ford once folks on Twitter alerted the makers of the game to what the dealership had done. Ford washed its hands of the whole thing, stating that the dealership acted as an independent entity. The dealership, when contacted, pushed the calls off onto the dealership’s advertising department. The advertising department just flat hung up on some inquirers, before emailing out its, um, “explanation.”

The ad exec then wrote back to say clarify that “We always use DMCA compliant sites when getting images,” referring to the Digital Millennium Copyright Act. The ad guy claimed that the Firewatch image was obtained from a DMCA-compliant digital “wallpaper” site, but he seems to be confused about complying with the DMCA actually means.

Very confused, because obtaining an image from a site that complies with the DMCA doesn’t suddenly make those images royalty-free, free to use in commerce, or even non-infringing themselves. All it means is that the site would comply with the notice and takedown procedure once alerted to an infringing work on its site. If no notice happens, the takedown might not happen either, which doesn’t in any way render the image non-infringing.

The fact that we don’t hear of this kind of thing happening more often is likely an indication that the actual rules within the DMCA and how copyrighted images can and can’t be used in commercial ad copy is within the lexicon of most companies’ advertising departments. This particular Ford dealership might want to give HR a call and get the ball rolling on some staff turnover.

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Comments on “Ford Dealership Swipes Game Image For Ad, Thinks It's Kosher Because It Came From A DMCA Compliant Site”

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56 Comments

“Very confused, because obtaining an image from a site that complies with the DMCA doesn’t suddenly make those images royalty-free, free to use in commerce, or even non-infringing themselves. “

This is true, but if I found an image uploaded to Flickr with the appropriate CC license how am I supposed to know it is pirated?

And how do you know they didn’t try to make sure the image was legal to use?

Michaelsays:

Re: Re:

Well, they did not say they found an image with a CC license and used it, they said they took it from a DMCA compliant website.

While they may have actually done the former, they don’t seem to know what it means to be the latter – thus “very confused”.

They did not suggest they did anything other than download the image and use it. At this point, if they had done anything more, they probably would have said so (or at least should have).

PaulTsays:

Re: Re:

“This is true, but if I found an image uploaded to Flickr with the appropriate CC license how am I supposed to know it is pirated?”

You’re not. However, you will have used the image in good faith under the licence offered, so you wouldn’t be to blame for any misuse, that would lie with the person who infringed by uploading it to begin with. Flickr would also be absolved, as long as they comply with a takedown notice once notified that it’s infringing. That’s how it’s meant to work.

“And how do you know they didn’t try to make sure the image was legal to use?”

Because the co-founder of the company they took it from has confirmed they didn’t licence it, his tweet is in the linked source article.

RonKaminskysays:

Re: Re: Re: Re:

you will have used the image in good faith under the
> licence offered, so you wouldn’t be to blame for any misuse

My distinct impression was that US copyright law does not release one from liability in this case (this is not to say that a court might not find the argument convincing). I think that in the best case one would not be liable for punitive damages…

John Fendersonsays:

Re: Re: Re: Re: Re: Re:

It’s a matter of contract law rather than copyright law. If you abide by the terms of the contract (such as CC), but the other party engaged in fraud without your knowledge, then you are not legally liable.

You would still have to stop using the image (or obtain a legitimate license) once you learned the facts, though.

PaulTsays:

Re: Re: Re:2 Re: Re: Re: Re:

Exactly. You might have to comply with a ease and desist, but to be held liable for copyright infringement over which you have no knowledge or control and only use the image in compliance with the terms of the licence you agreed to? If you can be held liable, that seems to be yet another reason why US copyright law is in desperate need of reform. That’s saying that you can never avoid liability even if you do everything to avoid it, because you cannot possibly know the actual relationship between and artist and the outlet you obtain the image from – and that goes for content you paid for, not just free outlets like Flickr.

Bergmansays:

Re: Re: Re: Re: Re: Re:

True, good faith does not necessarily negate infringement. But it matters a great deal when the court assigns penalties for infringement. Doing everything in your power to determine that your use was not infringing means that your liability is probably handled by taking down the image as soon as you are made aware of the problem.

Anonymoussays:

Ford’s legal team must not be very competent. The majority of sites out there are DMCA compliant, that doesn’t mean that companies can use images from such websites in their own advertising. I’m shocked that Ford didn’t get any permission or license from the game company to use that image. Such competent legal counsel … expect Ford to be facing a copyright complaint.

Anonymous Anonymous Cowardsays:

Re: Re: Re: Re:

While that is true, it is still likely a multi-million dollar business and can certainly afford to pay a royalty for advertising artwork, especially since they are not paying a graphic artist to create it from scratch.

However, it appears that the game company, the rights holder, will be satisfied with the Streisand Effect advertising they are getting and don’t appear to be seeking damages via a court.

OldMugwumpsays:

No harm, no foul?

Clearly the dealership is confused, and who can blame them – the whole structure of current IP law is incomprehensible to most people.

I imagine even if the dealership knew the image came from a video game, they thought “hey we’re selling cars, not competitive with a game in any way”, so no problem.

And if the law were reasonable, that wouldn’t be a bad way to think.

Certainly the game people deserve credit for the image, but I don’t see how they suffered any economic harm at all – use of the image doesn’t take a penny from their pocket. If anything it’s free advertising for their game (at least if they’d gotten credit).

Bensays:

Re: Re: No harm, no foul?

Dealership? I wouldn’t expect them to know anything. Their advertising department (and they tend to spend money on advertising!)? Yes, I’d not only expect them to know but I would expect them to also know about licensing images and copyright. It is their job for which they are getting paid (or, I hope, it was their job; maybe they can switch to sales staff…).

t3rminussays:

Re: Re: No harm, no foul?

“Use of the image doesn’t take a penny from their pocket”

AAAAH No.

What about all the time and effort spent creating the image. They had to pay an artist money to produce it.

By your logic, I can download a copy of Firewatch for free, because it doesn’t take any money from Campo Santo or Panic.

The point is they spent a lot of money to produce something, and they deserve to be compensated for its use.

OldMugwumpsays:

Re: Re: Re: Re: No harm, no foul?

How much they spent to produce it is irrelevant.

I can spend millions digging holes and filling them up again – that doesn’t entitle me to a reward for my “time and effort”.

If I look at the image on their website and get pleasure from the beauty of it, that doesn’t harm them in any way or cost them a penny. They already made the image for their own reasons. Whether I get pleasure from it doesn’t affect them.

If their use of the image harmed the creator economically – lost sales in this case (as with the free download of the game), then (and only then) you have a case for limiting that use.

PaulTsays:

Re: Re: Re:5 Re: Re: Re: Re: Re: Re: Re: No harm, no foul?

Artistic, personal, reputation, stylistic, just off the top of my head.

Now, you can argue that these are less relevant in a commercial proposition and you can certainly state that you personally don’t care. But, some people value more than money even if you don’t value anything over and above a dollar price, and those people won’t be satisfied with “well I didn’t lose you any money when I infringed on your work”.

Re: Re: Re:6 Re: Re: Re: Re: Re: Re: Re: Re: No harm, no foul?

I’m with Old Mugwump here. The artist providing the artwork to the video game makers would have either been paid or supplied the artwork subject to an agreement with them. The agreement either did or didn’t assume sole exclusive use by the video game company, ergo the infringement would have been against the video game company’s exclusive right to use that image, but the artwork was most likely paid for.

RE: Paul’s arguments, sorry mate, I can’t agree. Let’s take a closer look.

Artistic, personal, reputation, stylistic, just off the top of my head.

Copyright not only doesn’t, but shouldn’t cover those values, which I agree are real. I’ve been battling the ownership mentality that copyright holders and creative artists attach to the works in question because they are cultural artifacts; once an image or text or song, etc., is published, it belongs to all of us in principle. That is why copyright terms were short to begin with, on both sides of the Atlantic, though only the Americans thought to ring-fence the public interest in their Constitution. This fact does not negate the values outlined above, but if copyright did extend to them, you could forget about remixing, parodies, and other uses of cultural items as they would be subject to licensing agreements and copyright terms would have to last forever in order to properly reflect those values.

Now, you can argue that these are less relevant in a commercial proposition and you can certainly state that you personally don’t care. But, some people value more than money even if you don’t value anything over and above a dollar price, and those people won’t be satisfied with “well I didn’t lose you any money when I infringed on your work”.

Okay, you win this one, but there’s something you forgot. Assuming that the agreement with the artist was for the video game makers to have the sole exclusive right to the work when they got the artwork (let’s assume it was paid for such that the artist was paid once and forever, and does not receive a percentage of video game sales, so no royalties are due), that sole exclusive right has been infringed. The image was supposed to be a component of world-building in the game and is therefore integral to the visual experience thereof.

Infringing on the sole exclusive right to use that image in order to flog motor vehicles dilutes the image’s value because people will no longer associate it only with the game and its particular creative universe, but also with cars. This might spoil a game about walking through the wilderness by making you think about cars while you’re playing it, which may well impact on the sales thereof. Or not. But the video game makers’ sole right to use the image has indeed been infringed and they are entitled to seek remedy.

That dealership needs to apologise, stop using the image to push their cars and pimp the game. I’d be satisfied with that.

PaulTsays:

Re: Re: Re:7 Re: Re: Re: Re: Re: Re: Re: Re: Re: No harm, no foul?

“The agreement either did or didn’t assume sole exclusive use by the video game company”

So, in other words Mugwump doesn’t know whether the artwork was exclusive to the game or whether the artist retained some rights to licence it elsewhere. So, he doesn’t actually know if the artist is losing potential revenue since he could conceivably licence it to other companies – including the one that just infringed on his image for free.

“Copyright not only doesn’t, but shouldn’t cover those values”

Why not? The point of copyright is to give a limited monopoly to the artist to promote the progress and new works. This applies equally whether the artist was paid money or not, whether he released under a CC licence or not (CC depends on the underlying copyright structure), or any way in which he chose to create or distribute the work. It applies whether his motivation was money, experimentation or a favour to a friend. If an artist creates work to be enjoyed in one context but sees it repeatedly ripped off to be used to advertise services he disagrees with, that might make him not wish to continue creating that type of image – that’s one of the things copyright is meant to prevent happening (under its stated original purpose anyway).

The point of copyright is NOT to protect financial income, it’s to give temporary additional rights to the artist. That so many people think money is the only motivator for creating art is a damn shame, but it’s not the whole truth.

As I often say here, I’m in favour of massive reform of the copyright system, but always stop well short of the idea of removing it. If anyone can infringe if they can assume the artist has been paid enough already (with zero evidence, of course), then what’s the point of copyright?

Re: Re: Re:8 Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: No harm, no foul?

Article I, Section 8, Clause 8 of the United States Constitution, known as the Copyright Clause, empowers the United States Congress: To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

PaulTsays:

Re: Re: Re:9 Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: No harm, no foul?

Exactly my point. It’s down to the author to decide what he values in the work, and from that whether it being protected by copyright encourages him to create further work.

OldMugwump is saying that if the work has no further monetary value, it’s OK for others to use however they wish. My point is that works have other types of value, and it’s down to the artist to determine whether those are important, not whichever random internet user who fancies copying the work. There are values other than what you get paid in cash.

Anonymoussays:

Re: Re: Re:8 Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: No harm, no foul?

So, in other words Mugwump doesn’t know whether the artwork was exclusive to the game or whether the artist retained some rights to licence it elsewhere. So, he doesn’t actually know if the artist is losing potential revenue since he could conceivably licence it to other companies – including the one that just infringed on his image for free.

Neither do we. It might be worth finding out as a way to assess the economic impact on the artist. Assume he or she was paid a one-off fee for the artwork. Free advertising if Ford agree to credit him or her, but this is infringing on the video game’s sole and exclusive right to use the image, so the owners are the aggrieved party here.

The point of copyright is to give a limited monopoly to the artist to promote the progress and new works. This applies equally whether the artist was paid money or not, whether he released under a CC licence or not (CC depends on the underlying copyright structure), or any way in which he chose to create or distribute the work. It applies whether his motivation was money, experimentation or a favour to a friend. If an artist creates work to be enjoyed in one context but sees it repeatedly ripped off to be used to advertise services he disagrees with, that might make him not wish to continue creating that type of image – that’s one of the things copyright is meant to prevent happening (under its stated original purpose anyway).

No, no, no. Copyright terms would have to be eternal to prevent someone else from ever using the copyrighted item to promote things the creator disagrees with, etc. When the monopoly term ends, so does any right to exert control over the item’s usage.

Even during the monopoly term, a creator might object to a reviewer describing the magnum opus as a pile o’ poo. Nobody should have the right to stifle speech, and permitting that level of control over it would do so. Once more, with feeling; parodies would be verboten under such a regime. No way.

PaulTsays:

Re: Re: Re: Re: Re: Re: No harm, no foul?

“A crime that doesn’t harm anyone isn’t a crime.”

You might want to check what crimes are at some point, then. There’s plenty of crimes which fit that category, from jaywalking to personal pot use to ripping a DVD to put on your iPad.

You might argue that they shouldn’t be crimes, but that doesn’t mean they’re not. Even so, I don’t see why being able to misappropriate any image for commercial use should be legal even if the law were “reasonable”.

Davidsays:

Never assign to malice when ignorance will suffice.

Sorry, this stinks of Big Al using his golfing buddy’s son/daughter or one of his own relatives to come up with a great ad. And they did.

That they weren’t/aren’t an actual artist or ad focused individual is clear by the explanation, such as it was. Most of those in advertising are extremely aware of copyright and how to obtain permission for works. This does not reek of competence but its negative.

Anonymoussays:

The flaming Pinto people ripped off "Firewatch"???

It’s ironic that an image from “Firewatch” was stolen by the same company who rather than spend a few bucks to fix their gas tanks had no problem fire roasting their customers to death in their Pintos.

“Come in to your local Ford dealer’s flaming hot ‘Freedom…From This Mortal Coil’ sales event.”

Uriel-238says:

Re: Re: Re: Re: The flaming Pinto people ripped off "Firewatch"???

Well there’s also that the Pinto was no more explodey than other cars of the same era. It was just more famous for explodey incidents that couldn’t be consistently duplicated.

But the cars-explode trope made great Hollywood like the dropped-guns-discharge trope.

ACsays:

Re: Re:

Your use of scare quotes suggests facetiousness, but I would argue this is a very good example of transformative fair use. The idea behind that exception is that the new use is so vastly different from the original that the original creator suffers no damages because the market for the work isn’t affected at all.

Using one frame from a video game isn’t going to compel anybody to suddenly NOT buy it.

In fact, given the history of this site, I would bet if it were an independent small company using an image from a AAA game studio instead if the reverse, that’s exactly the stance Techdirt would be defending in this piece.

Anonymoussays:

small aside for stateside denizens.

some years ago i told a fellow contractor (from italy) about a hobby where i locate old or otherwise interesting cemeteries wherever i spend some time and photograph them. he told me a cemetery back in his home was called a campo santo. camp of saints, he said. i mention this because most americans wouldn’t realize what the name means.

very cool name in my book, though my book doesn’t have that many pages.

John85851says:

Sounds like a bad ad agency

So what’s the name of advertising agency that:
1) Didn’t create the artwork on their own, which they were probably paid by the dealership to do?
2) Used an image that was “DCMA compliant” (as if that’s a thing) instead of getting an image from a real stock photo/ art site? Oh, right, because stock image sites charge fees to use their images.
3) Didn’t anyone at the ad agency think it was odd that the “DCMA compliant” site didn’t charge any kind of licensing fee? Or did they think this was a good way to save money?

I wonder if it’s fair to blame the dealership since they probably assumed (rightly) that anything the ad agency gave them would be fully clear for them to use.

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