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This question already has an answer here:

Our game requires to show images from movies, cartoon characters, etc. but we don't know how we can include them.

We have seen that games like QuizUp and other guess the pic like games have images from Disney characters, Pokemon or company logos, etc.

How does it work? Is this usage considered fair use?

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marked as duplicate by Alexandre Vaillancourt May 6 at 13:12

This question has been asked before and already has an answer. If those answers do not fully address your question, please ask a new question.

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Disclaimers:

  • I am not a lawyer, this answer does not constitute legal advice
  • I am not familiar with QuizUp, have never used it

For what I can find QuizUp allows users to create questionnaires on which the users can upload images. Some user could upload images that are under copyright without having a license to use them.

Note: there is also the trouble of trademarks. Some images are not only under copyright, but are also trademarks of companies. And yes, copyright and trademark are two different things. Usually companies allow the use of their trademark as long as some guidelines are followed, which usually include but are not limited to mentioning they are a trademark.


Now, there are two parts to this:

  1. QuizUp does not own the copyright to the uploaded content. Instead, when the user uploads a picture, the user is licensing it to QuizUp so they can distribute it. Note: this is a common practice for social networks. For example, you have image rights over pictures of you (plus, you as photographer generate copyright), a social networks - say, Facebook - could not distribute them without you granting them a license.
  2. Furthermore, when the user is uploading a picture, the user is claiming to have the right to use it. Either, the user is claiming to the author of the picture or have a license. Note: depending on the jurisdiction QuizUp could be required to cooperate with copyright holders to take down illegal uses, or even be required to check for them automatically.

How do they do that? Each user did agree to it when they signed up (even if they didn't read). So, let us read, we can find it in their Terms of Service, under "Rights in User Content Granted by You":

(...) By posting User Content to the Services, you grant Plain Vanilla a non-exclusive, transferable, sublicenseable, worldwide, royalty-free right and license to use, modify, publicly perform, publicly display, reproduce, and distribute such User Content on and through the Services. (...)

You represent and warrant that: (i) the User Content is yours (you own it) or you have the right to use it and grant us the rights and license as provided in these Terms, and (ii) the posting of the User Content on or through the Services does not violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of any person. (...)

That is, they expect that the user that uploads images, say of a Disney character, has right to that Disney character (for example the user is a Disney employee tasked to do this on behalf of the company).


How can they use those images?

The user that upload them is granting them a license, and they are - as far as I can tell - shifting responsability to the user.

The Terms of Service, under "Rights in User Content Granted by You" say:

(...) We are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content.

And under "QuizUp IP Guidelines":

(...) Plain Vanilla Corp is not responsible for your illegal use of a third party’s intellectual property.

Under "My QuizUp Topic Terms":

You are responsible for the Topics you create, including their legality, reliability, and appropriateness. You represent and warrant that the user content is yours or you have the right to use it and grant us the right and license and that your are not violating any privacy rights, publicity rights, copyrights, contract rights or any other rights of any person. Do not upload any images that the copyright holder disagrees with e.g. images identified with a copyright notice, you are responsible for all uploaded images and material. We have the right to decide at our sole discretion that the material you have created is inappropriate and therefore not allowed and removed. (...)

Note: I am not familiar enough with QuizUp to know if they do any kind of checks, or take down under copyright claim.


Is this fair use?

No. It isn't. They depend on a license. There is a chance that individual users could claim fair use, and whatever or not that applies would have to be decided case by case.

In fact, the Terms of Use, under "QuizUp IP Guidelines", say:

If a legal claim is brought against us that is related to your material you will have to pay our legal fees and costs related to this lawsuit, attorney’s fees, settlement or judgment amount that we are required to pay as a result.

That means that if somebody sues them because of the content that a user uploaded, they make the user pay.


How do I use images with copyright in my game?

Our game requires to show images from movies, cartoon characters, etc.

If you are going to include any assets with your game, you will need a license to them. If want to use third party intellectual property and cannot license it, I would suggest to just don't.

You have other options such as:

  • Use content under public domain.
  • Use content under a loyalty free license (with proper attribution). For example, everything (unless a mistake did happen) you can find on Wikipedia has a license attached to it that allows free distribution.
  • Create something, as the author you would have full rights over it.

And of course, you can ask a lawyer about fair use in your jurisdiction. There are guidelines online about copyright exceptions and limitations, however the truth is that it changes from place to place (in fact, the term "fair use" is not applicable worldwide). You should really ask a lawyer in your area.

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I think that you need his explicit permission to use their content. So you should send an email, call, ... and get very lucky to be able of use those contents.

However, the law is different in every country/region of the world, so if you want to do it fully legal you should check for the law in every country where you are going to publish the app.

Another option that you could consider is searching for Creative Commons content. If I'm not wrong you can use those content without any problem.

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  • \$\begingroup\$ The applicability of Creative Common content depends on the specific license used by the content as well as the specific use by OP (i.e. is it a for profit project, do the images need to be edited to a specific format, etc). \$\endgroup\$ – Pikalek May 9 at 1:27

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