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this post was submitted on 11 Dec 2023
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I don't really know what the Florida Joker did other than look horrible, but I kind of agree that Rockstar took his likeness to the benefit of their game. He should be compensated.
I'd be pretty upset too if someone used my likeness in a game and applied it to some fucked up scenario.
And it’s funny how it doesn’t apply both ways. Go make a parody of one of Rockstars IP and see how fast you get cease and desist.
It's almost like the law doesn't protect equally
Something something "it's just as illegal for the rich man to sleep under a bridge as it is for the poor man to sleep under a bridge."
The law does. Lawyers don't.
The real issue isn't an actual cease and desist, but DMCA takedown. I hate almost everything about the DMCA and think it should be repealed. W/o the DMCA, fair use would be a lot more favorable to smaller content creators.
Unless it’s posted somewhere dmca doesn’t apply is my understanding, but if RS finds out about your fan project, that’s what cease and desists are for. Stop working on it, and if you don’t you’re screwed. You couldn’t even “leak” it at that point.
Cease and desist is the far worse one to receive was my understanding.
Sure. But a cease and desist requires a lawsuit, DMCA just requires filling out a form, so the burden of proof is much lower. That's my point.
RS may be able to win even sketchy cease and desist suits, but that costs them money, so they're less likely to bother unless you get really popular.
A cease and desist is literally a letter. The court is not involved in any way.
A DMCA claim only applies to copyright infringement, not any other illegal use of IP, and you can counter claim with just as little work if your usage is legitimate and force them to actually go to court to be able to require to website to remove it.
Yes, a cease and desist is just a letter with no legal obligation whatsoever. I could send one to Rockstar today. The interesting part is the threat of legal action, so I wouldn't send one unless I had a solid case. The letter itself isn't interesting, the judge's order during or after the ensuing legal battle is.
And yes, a DMCA should only apply to copyright infringement, but there's no legal obligation to actually prove that in court before sending the request. Since the request is sent to the hosting service (e g. YouTube or GitHub) instead of the creator of the content, the content is often taken down before the creator even hears about the request. It is not in the hosting service's interests to fight such claims, nor look much more closely than to verify that the sender seems like they likely own the allegedly infringing content.
If you host your own content, yes, you're responsible for whether you take it down before being legally obligated to. Most people use a popular hosting service, especially for something like a video where any form of popularity will likely overwhelm their hosting. That's why people use services like YouTube, they don't want to deal with scaling if demand takes off.
The threat of legal action is the same with or without a formal letter. It's 5 minutes of a lawyer's time. The barrier is zero. Anyone can send one for any reason with no cause.
The hosting provider is not obligated to investigate or defend against DMCA claims. If they receive a valid counter claim, they are permitted to host it again until actual legal action is initiated, in a courtroom. They don't receive them for the exact same reason people don't respond The barrier of a DMCA takedown after the trivial counter claim is much higher than a cease and desist.
The hosting provider is free to ignore counterclaims as well, and they frequently do. So I'm practice, the DMCA is much more effective than a cease and desist when it comes to major content hosts.
Things rarely get to an actual, legally compelled takedown because content hosts so often voluntarily take down content even when there's a valid counterclaim.
Nobody is using DMCA requests on YouTube, your biggest example. YouTube has an easier process entirely unrelated to the DMCA.
Right, and that exists as a direct reaction to the DMCA. YouTube didn't want to deal with the legal process of a DMCA takedown, so they provided a process to shortcut that. Unless I'm mistaken, without the DMCA, lawyers would need to go after content creators, not hosts, to get infringing content removed, so YouTube would not feel the need to automate the process as it has.
That's what I mean about the DMCA essentially causing this setup. It's the same idea as a cease and desist scaring people into complying even when they're within the bounds of fair use, except the host has little if any reason to resist spurious claims. If lawyers can go after hosts, hosts will protect themselves to avoid legal fights.
Without the DMCA safe harbor provision, they'd be directly liable for content uploaded by users. Taking stuff down wouldn't protect them.
I don't think that's true, the law generally doesn't apply if you unknowingly are in possession of Illegal goods. So it would need to be proven that the host knew it was illegal.
Do you have evidence that a host was successfully held legally liable for unknowingly hosting illegal/unlicensed content? The Napster case is the closest I know of (post DMCA though), and that centered on whether they knew about the infringing content, as well as whether they promptly removed infringing content once they knew about it. This is certainly related to safe harbor provisions, but I'm interested to know of any examples before the DMCA was in place, because I have my doubts that they're truly necessary. To me it sounds like a way to hand even more control to copyright holders since they merely need to send a notice-and-takedown request instead of actually proving anything (at least that's my reading of Section 512 of Title 17).
That said, they're are better ways to handle it imo. For example, strengthening rights and responsibilities of individuals over submitted content could force hosts to explicitly partner with them to profit from it, which means they'll share liability and thus be expected to put more effort into verifying legality.
No a cease and desist doesn’t require a lawsuit, where does that apply? You have your lawyer draft a letter and if they ignore it, than you have to go to court and deal with it, but these aren’t used frivolously like DMCAs so they are usually followed.
You can’t DMCA something that isn’t copyright infringement, if you’re hosting it yourself, a DMCA doesn’t even really apply to you either. It’s for third party hosters. And you still need proof regardless, you can’t just dmca stuff and not follow through with proof and enforcement.
Your point is inherently flawed it seems.
Most content is hosted via a third party, and the more popular third parties (e.g. YouTube) don't seem to check the proof, they just take it down.
The cease and desist requires a judge, so it needs to actually have proof, so the barrier is much higher.
If you self-host, sure, but very few people actually do that, especially for something like a parody where reaching a broad audience is the entire point.
You can get a judge to order and injunction for a cease and desist which make it’s legally binding, but it’s not the only method available.
I can send you a cease and desist to stop commenting on my comments, if you don’t I would either than take you to court, or drop it.
A dmca means nothing to the person who did the copyright infringement, great I can’t put the video on YouTube, on to the next one… how inconvenient and obstructive to their work.
You realize you’re on the fediverse where anyone can Self host instances… yeah?
Sure, but how many actually do? And how likely is RS to find out that someone posted something on the Fediverse? I know we all like it, but it's still a very small community and probably not worth their time.
People tend to post stuff to YouTube and then link to it from Reddit, Lemmy, etc, and that's where the DMCA gets involved. How is RS going to send a cease and desist to me when I'm using an anonymous account? I don't even have my email configured w/ Lemmy. If I hosted my own instance, I suppose they could send it through my DNS registrar and/or hosting provider, but I'm guessing they'd go the DMCA route on Lemmy or Reddit just like they would with YouTube.
Almost 13,000 instances as of right now. I also own multiple websites, anyone who runs a business has their own website. I don’t think you realize how easy it is to have your own place to host content.
You don’t think RS lawyers aren’t constantly searching the net for stuff that breaks their IPs rules? It has nothing to do with size. They’ll find it.
I love how you’re still on about it DMCAs, drop it, that’s lost.
They certainly are, but even I find it hard to search Lemmy, I doubt RS lawyers would bother. They're only going to search for things on the major sites, and Lemmy isn't a major site.
Lemmy and other fediverses shows up on Google and other search engines, and can use booleans to search websites from Googleand other search engines. They know how to make it easy even if you don’t.
Can even automate it with a script and have it pop out a list of new websites every morning.
You don’t need to believe, it happens already mate. And cease and desists are far worse than DMCAs since there is no legal ramifications for ignoring a DMCA. Also parody is protected from copyright claim, so they couldn’t DMCA a parody anyways, it would only be able to be dealt with through a cease and desist. Which we already figured out doesn’t require a lawsuit, but you seem to want to ignore this key detail.
Blocked.
They really don't. The only way I get it is if I do something like "site:lemmy-instance ". It can be done, but I really don't think a lawyer is going to bother, much like they likely don't bother with smaller forums and whatnot.
On lemmy? Can you give me an example?
They absolutely can. It doesn't need to be legal, just scary enough for the website to not bother looking into it further. That happens all the time on Github and Youtube, it's not exactly new.
Okay. That seems a bit extreme, but whatever.
Parody is protected. There have been a few made.
How many fan/parody games have made it to light instead of being C&D’d?
Parody is protected, but not when you have vastly more expensive lawyers who will bully you into compliance.
Hundreds, I would estimate.
Can you provide a single one?
Yes? Unless you've been living in a box this is not a surprise:
https://store.steampowered.com/app/1926680/FUCK_PUTIN/ https://store.steampowered.com/app/1151390/Putin_Life/ https://store.steampowered.com/app/2469880/Putin_Must_Die__Defend_the_White_House/ https://store.steampowered.com/app/1540060/Angry_Putin/ https://store.steampowered.com/app/805820/Putin_VS_ISIS/ https://store.steampowered.com/app/866310/Putin_Run_Away_From_Trump/ https://store.steampowered.com/app/515040/Make_America_Great_Again_The_Trump_Presidency/ https://store.steampowered.com/app/769980/Lock_Her_Up_The_Trump_Supremacy/ https://store.steampowered.com/app/705410/World_War_Party_Game_Of_Trump/ https://store.steampowered.com/app/844260/Rustler_Grand_Theft_Horse/
You've also got Saints Row, which parodies GTA pretty well.
None of those are parodies of games……
And no saints row and rustler aren’t parodies, those are games in the same genre. You don’t think just because a game is a same genre it makes it a parody does it…?
Decent video on how it’s one sided against fans
The title says: Grand Theft Horse. The description says:
"DISCLAIMER: Any elements of the game "Rustler" that are inspired by elements of the pop culture are to be seen a parody or caricature."
Why does it have to be a parody only of games? Parody in general is protected, as the games show.
Saints Row is a parody, as confirmed: https://screenrant.com/best-parody-video-games/
Uhh… because that’s what we were talking about here….?
Where does it say it’s a parody of GTA…?
And that proves nothing but another person has your opinion, the only way to prove it would be a source from the developer, but that won’t exist since if they say it, they would be cease and desisted.
It was a parody of GTA when it was announced and shown, as everyone said when we saw it.
We were talking about parody, but okay. They were all games parodying people and other things but apparently isn't good enough for you.
No it was never announced as a parody of gta or they would have been cease and desisted.
Just because a game is in the same genre doesn’t suddenly make it a parody.
You responded to my comment about specific game parodies, I’m sorry you can’t converse properly.
That's apt since you said this:
And now I see you're the same person who deliberately ignores what a rule says explicitly. Well done.
I gave you plenty of clear parodies or other things too, one which has the name + Horse in the title but that's not good enough for you either. Okay.
Different face, different tattoos. Sure, it's definitely inspired by him but looks legally distinct.
With GTAV, Kate Upton also sued for her likeness being taken for one of the loading screens. I don't recall how that one ended.
Looked it up, apparently Lindsay Lohan sued them and lost. The image is without a doubt Kate Uptons face traced over a real life photo though from what I just saw, but she herself hasn't tried to sue them..
It was Lindsey Lohan who sued
https://www.unilad.com/celebrity/news/lindsay-lohan-grand-theft-auto-five-lawsuit-110273-20230907
He just realised that's the only way he can make money off a terrible decision.
But why
Put yourself in his shoes for a second. You have appeared on TV over something you did. Good or bad, it doesn't matter. Then you realize some game company that's making a parody of the society you live in use your image and personality traits that are directly identifiable to you to create a character that parodies YOU. And they put this other YOU in various scenarios that you may or may not agree with. And they're going to pull a hefty profit from using this version of YOU while you don't receive a penny.
Does that sound fair?
Yes? They're not using his likeness, they're using a parody.
Should Trump be compensated if they use a parody of him in a video game? E.g. should Trump profit from this game?
I can understand if they use an actual likeness, but a parody isn't an actual likeness, it's a new character that's a satirized version of an actual person, so their actions in game wouldn't be construed to match the actions of the satirized person. That's how parody works, and it's absolutely protected speech and doesn't require compensation.
Ah. Good point. You might be right. Well we'll see how it turns out.
This guy is just a guy, trump is a ex-preseident. If Rockstar was "parodying" a sick old man and uaing their likeness in agame that they will gain incredible amounts of money from would that be okay? If they're adding a version of this guy in a game that's identifiable that its him, than he needs to be compensated or straight up not consent to this bullcrap and Rockstar shpuld be removing him from their gsme. Calling it parodying doesn't make it okay snd parodying a political figure is totally different from using the likeness of some guy with tattoos in their game.
Use of someone's likeness without their permission isn't illegal in and of itself, it's only illegal if it causes them some form of harm, in which case it is defamatory. And this wasn't even an exact replication of anyone's likeness, but instead a similar but quite different rendition, to the point where it's absurd to think that any of the actions portrayed by the character are defamatory to the original person.
Yeah, it's weird, but from my understanding there's nothing illegal about it. I could design a model based on a sick old man I saw at a hospital or something, and as long as my use of that model is not defamatory or otherwise causes harm to this individual, it's fair use. That's the law. It would be weird, but AFAIK totally legal.
And yeah, parodying a political figure is different, it's just the one I could find. You can still be sued for defamation against a political or other public figure, and in fact that's probably more likely, though the burden for a political figure is a bit higher (i.e. criticizing their policies is usually protected speech, even if otherwise defamatory in nature).
It's a likeness, not the same. It's a parody which is clearly covered by law and there are thousands of similar examples.