I was recently took a seminar on doing stock photography and an interesting point came up. The point was that normally when you take stock photography you must obtain the rights to copy all the information that is in the photo. Like if I have a book in the photo I must gain the rights to copy that cover or if I have someone wearing a shirt with a logo I must get the rights to reproduce that logo. This appears to be in place for two reasons. One so I do not make money off of someone else's work and two so I do not misrepresent the item being photographed.
I started thinking about boardgames and the pieces in the game. Interesting a number of my games are very specific on reproducing images from the game. If you look at the instruction for "Through the Desert", for example it states that.
This game, or parts thereof, may not be reproduced in any form without consent.
My wife, who is an attorney (litigation not copyright), pointed out an interesting twist to this. People who upload photos here do get geekgold for that action and the geekgold can be used to purchase services and goods here, so photographers are getting compensated for the photo. An argument, although weak, could be made that the images are being sold. Images of objects we do not have the right to sell.
I do not think that game publishers, designers, or artist would come after BGG.com or the photographers here, since we generally promote the games.
BGG.com as already stated that they will not post scans or photos of rules because they feel this would violate copyright laws. Should BGG.com extent this to all photos that contain game pieces?
I am not trying to make argument for or against this action, I am just curious if BGG.com has a position on it?
Copyright is a limited right, not an exhaustive right.
There are numerous rights that remain for the public which fall under fair use, such as the right to reproduce some parts exactly for reporting, critisizing, teaching, researching, and other such uses.
Other rights include the right to make imperfect reproductions for advertising, illustrating, and other reasons so long as it is easily defensible that doing so does not in any way interfere with the marketability of the copyright holder's rights.
For instance, you are permitted to take a picture of the game to illustrate the game on your web site, regardless of what the game designer, author, or publisher cares about this. Similarly, you can take a picture to advertise the game for sale, regardless of any merchant agreements that exist.
I am not a lawyer, but I doubt that anyone would be able to claim that pictures of the games put onto BGG, even if they result in "good reputation", geek gold, or what not, would be considered loss of marketability and not under fair use. On the contrary, I would suppose that sales have probably increased considerably for any game so pictured.
Note that "I'm increasing their sales" is not an argument for copyright violation, and that directly copying their images in high quality is more likely copyright violation. The actual law was left deliberately vague.
I can imagine that any position posited would relate to the "fair use" exemption for copyright. But more importantly, BGG isn't creating a library of stock photography to be used freely (or for a fee). It is creating a research archive of boardgames.
That link takes you to the University of Texas Fair Use page. It goes into great detail about Fair Use and explains both the US law and the rules on how it is applied.
For those that don't want to read the entire piece, US law establishes 4 factors in determining if a use is fair:
1) The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
2) The nature of the copyrighted work;
3) Amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4) The effect of the use upon the potential market for or value of the copyrighted work.
There is also a good faith fair use defense[17 USC 504(c)(2)]. It only applies if the person who copied material reasonably believed that what he or she did was a fair use.
I'm sure reasonable people could differ on BGG's status for fair use.
If anyone here is affliated with UT there is a link on that page where you can ask a question(they specifically say they can't answer IP questions from outsiders).