VERSUS.Legal about the lawsuit against Capcom: “It is unlikely that the company’s actions can be called accidental copying”

Also on App2Top.ru a comment by the law firm Semenov &Pevzner on this issue is available.

Evgeny Obedkov, App2Top.ru : The designer demands up to $12 million in compensation and payments of up to $25 thousand for each photo used. Is it possible to say that such an amount is justified, or is the court unlikely to satisfy the requirements in full?

Alexandra KurdyumovaAlexandra Kurdyumova, senior Partner of VERSUS.legal: Approaches to the amount of compensation in the United States are very different from many other jurisdictions.

For example, in Russia there are rarely successful cases of recovery of several million rubles for the use of someone else’s intellectual property. If we are talking about photographs, then most often Russian courts recover an average of 50,000 to 200,000 rubles for such violations.

In the USA, on the contrary, the recovery of multimillion-dollar compensation for copyright infringement is not unusual.

In accordance with the law, the court can recover $150,000 for a violation that was completely intentional. In the case with Capcom, the plaintiff revealed 80 violations. This means that if the plaintiff proves the intentional nature of the violations, the amount of compensation may indeed be close to the claimed $12 million.

This approach to calculating compensation is often found in the practice of American courts. For example, in a similar case, the plaintiff also collected $ 150,000 for each violation (Blizzard Entertainment against the Chinese studio Sina Games, the authors of the game Glorious Saga).

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

Alexandra: First of all, we need to understand, can Yurachek even go to court now, after such a long time?

From a legal point of view, this is a continuing violation: games continue to be sold, adapt to new consoles. In practice, this means that the author could have found out about the violation at any time. This is important for determining the limitation period: as a general rule, a lawsuit can be filed only within three years from the moment when the author found out about the violation.

Accordingly, Yurachek has the right to claim that she learned about the violation only now — for example, referring to the fact that each game has its own target audience, and she did not enter this audience, did not see the game, as well as violations of her rights. The burden of proving that the statute of limitations has expired will be on the defendant in the person of Capcom.

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

Alexandra: It is unlikely that Capcom’s actions can be called accidental copying, since some of the applications obviously indicate that the company took the work of Yurachek. Moreover, as follows from the lawsuit, Capcom managed to comply with the rights in respect of all authors whose works were used in the creation of their game, with the exception of the rights of Yurachek. As stated in the lawsuit, Capcom openly stated about borrowing someone else’s work and even gave statistics — 3.5 thousand textures were borrowed.

However, the situation becomes less clear if you take a closer look at the purpose of the book. There are several facts that may indicate that the will of Yurachek was initially aimed at ensuring that her book was of practical use and freely used on the market. In particular:

• as follows from the annotation of the book, the publication does not serve only for inspiration, but carries a practical meaning: the book says in plain text that textures can be used (“textures ready to be used”);to use these works by other specialists, the author assigned an index to each picture, and also attached a CD to the book, on which each of the pictures is presented in electronic format;
• Finally, the title “Surfaces: Visual Research for Artists, Architects, and Designers” describes the target audience of the book — artists, architects and designers — people whose profession is connected, among other things, with the use of similar textures in their works.
• It seems that the defendant may try to invoke the principle of estoppel and prove that the will of the author was originally aimed at providing the possibility of using her works without a license.

It was not just an album with pictures, the book of Yurachek was initially positioned as a tool for professionals and had an applied nature.

Of course, a lot will depend on the specific circumstances and evidence of the parties. The case is complex, we will follow its development with great interest.

As one of the proofs, Yuracek uses examples (coincidences in file names) from a major Capcom leak that occurred in November. Is it correct to use such documents in court?

Alexandra: As a general rule, illegally obtained evidence cannot be used in court. 

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

Alexandra: From experience, I can say that such situations occur infrequently. In addition, many similar situations are solved before reaching court. This is especially true in the United States: conducting a trial in an American court is a very expensive pleasure, and companies often tend to negotiate without lengthy and exhausting lawsuits and expenses.

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

Alexandra: I hope so! Unfortunately, companies often come to their senses and begin to eliminate risks at the moment when something has already happened. It’s always sad: most of the problems and difficulties could have been noticed and eliminated at the very start, when the cost of the error was not great.