Paula Deen has just released her first mobile game, called “Paula Deen’s Recipe Quest.” The game was developed by Dreamforge Games, in conjunction with Paula Deen Ventures. However, reports are indicating that the depiction of Deen in the game may be a potential copyright infringement. Dreamforge’s caricature of Deen is a little too close for comfort to artist Jerrod Maruyama’s drawing of her, available on his website.
Jerrod Maruyama’s drawing of Paula Deen
The standard for copyright infringement
In order to prove copyright infringement, you need to show two things: access and substantial similarity.
Access means that the alleged infringer must have been able to see the original work in order to copy it. You don’t necessarily have to show that they DID see the work, just that it was available for them to see. The relative fame of the original work can be very important here. If the work was on a website that no one visited or the original artist has no degree of fame, proving access may be difficult.
It is possible for two creators to create very similar pieces of art without ever seeing the other piece. This independent creation (similarity without access) is allowed under copyright law.
You also have to show that the allegedly copied work is substantially similar to the original. If it’s not, then how can it be a copy, right?
They usually look at this two ways: objectively and subjectively.
The objective test looks at the actual similarities – here, they would look at the fact that the mouth, eyes and lack of nose are nearly the same, for instance.
The subjective test would look at what a casual observer, your average reasonable person, would think about the two when they are put side by side.
Whether or not the alleged infringement would meet this standard is up to Maruyama to prove and a court to decide, but as a casual observer they do seem quite similar.
For more information about access and substantial similarity issues, check out this great guide on Avvo.com.
Who is potentially at fault here?
In this case, there are two parties on the receiving end of a potential lawsuit: Dreamforge and Paula Deen Ventures. Who’s the real (alleged) culprit?
This is all hypothetical, since no one would really know until the facts come out in court. Assuming that Paula Deen Ventures (not a developer) contracted with Dreamforge to develop this game for them, as is the norm, Dreamforge most likely created the assets and brought them to PDV for approval. PDV may have been unaware of any possible infringement, but in the end that may not matter. At least at first.
The artist would probably sue both of them. If he wins, both parties would probably be “joint and severally liable” for the damages.
That bit of legal mumbo jumbo means that both of them would be responsible for the whole thing. Whoever pays gets to fight it out with the other party to get compensated. They do this so that the party who was harmed actually gets paid, instead of having to wait on the losers in the lawsuit to fight it out first.
Commonly, the contract between companies like PDV and Dreamforge would have a few important clauses. First are the representations and warranties, which would essentially say (in part) that Dreamforge is creating wholly original artwork for the game.
Additionally, the indemnity clause would probably say that Dreamforge would have to mount a defense of PDV in case PDV gets sued over something Dreamforge did.
These two clauses work together to essentially put the burden on Dreamforge to handle the lawsuit and pay the damages. They give PDV contractual power to sue Dreamforge for any damages that PDV has to pay.
Usually, this kind of thing might start with a Cease and Desist letter or a settlement offer, with the threat of litigation. If that offer is rebuked, he may move forward with a lawsuit.
One important point to make, which applies to artists and game developers everywhere, is that there can’t be a lawsuit without a copyright registration. This is an important step in protecting your intellectual property from possible infringements like this one. Also, if you wait to file the registration until after you notice that someone has infringed, two things could go against you:
First, you may miss the “three months after publication” cutoff for statutory damages, which don’t require proof of damages at trial and can be very high for willful misconduct; and
Second, some courts don’t allow the lawsuit until the registration actually gets approved by the copyright office, which can sometimes take a long time.
Just an important tip for creative types – get those copyrights registered in a timely manner.
I’ll point out that this article is merely speculative, but it’s an important topic for game developers to be aware of!