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Law vs. imagination

Is the creativity of video game developers limited by architects’ rights to the image of their buildings erected in public space?

Creators of video games often set the action of their games in spaces modelled on the real world or using well-known buildings and other structures existing in public space. Locations used in video games often gain popularity, and for many fans become a tourist destination in their own right (witness the growing interest in visiting Lower Silesia due to the popularity of The Vanishing of Ethan Carter).

Thus it is essential for creators and publishers of video games to determine whether the use of recognisable locations in games is limited in some way by the law, and if so, what requirements must be met to allow features of the built environment to be used in a game. The answer to this question is not obvious, due to a lack of harmonisation on the global or even the European level of regulations governing “freedom of panorama,” a form of permissible use limiting the entitlements of copyright holders. In addition to copyright, national legislation on protection of cultural heritage as well as the right to privacy may also present a barrier to importing images of buildings or urban spaces into the world of a video game. Below we outline the importance that freedom of panorama can have for the game development industry.

Freedom of panorama—when the author’s consent is not required

Generally, freedom of panorama allows persons who have not obtained the consent of the holder of economic copyright to disseminate works permanently displayed to public view. In practice, in countries where this freedom has been enshrined in legislation, exercise of freedom of panorama primarily boils down to photographing or filming buildings, sculptures and other objects that remain under copyright protection but are located in public space. Thus this freedom generally extends to images of buildings, squares, sculptures and other objects that could still be covered by copyright, i.e. designed at the end of the 19th century or later (considering that copyright protects works for the lifetime of the author and a further 70 years after the author’s death).

The scope of permitted use is regulated differently from country to country. For example, in France freedom of panorama is limited exclusively to making available works of architecture and monuments erected permanently in public places, by natural persons and excluding use for commercial purposes (Art. L.122-5(11), Code de la propriété intellectuelle). In Germany, freedom of panorama allows duplication, dissemination and public playback of works permanently located in roads, streets or public places, using graphics, painting, photography or film techniques, without any subjective restrictions, including for commercial purposes (§59, Gesetz über Urheberrecht und verwandte Schutzrechte). Italian copyright law, by contrast, provides no exception at all in the form of freedom of panorama. Moreover, dissemination and making available of images of architectural structures situated in the Italian landscape (regardless of whether they are covered by copyright protection) requires compliance with additional conditions under regulations protecting cultural heritage and the landscape (Art. 107–108, Codice dei beni culturali e del paesaggio).

Freedom of panorama in Poland

In Poland, freedom of panorama is regulated by Art. 33(1) of the Act on Copyright and Related Rights, which provides: “It is permissible to disseminate works permanently displayed in publicly accessible roads, streets, squares or gardens, but not for the same use.” The act does not specify that dissemination may be done solely for non-commercial purposes, and thus based on this provision it is permissible for example to create and market postcards with images of buildings or sculptures protected by copyright, or even street-art murals.

A condition for exercise of this right is the accessibility of the reproduced view from a public place and permanent placement within that context. However, any dissemination of temporary exhibitions or installations held in public space will require the consent of the holders of copyright to the exhibited works. In turn, freedom of panorama excludes any places to which access is limited, even if located in public space (e.g. the façade of a building visible only through binoculars from a private balcony), as well as any building interiors, regardless of their character and public accessibility.

Can video game developers exercise freedom of panorama?

The greatest doubts in applying the Polish provision is whether freedom of panorama allows only a faithful reproduction of works located in public space, via photography or film techniques, or also permits creation of other derivative works: graphics, paintings, drawings, souvenirs with images of famous buildings, or, indeed, inclusion of images of buildings and sculptures found in public space in video games.

This issue has not yet been categorically resolved. Lawyers generally have no doubt that under the freedom of panorama provided for in Polish law, it is permissible to execute graphics or paintings depicting works protected by copyright, as in legal terms these works involve creative elements and may thus qualify as derivative works in relation to the depicted works (K. Gienas, commentary on Art. 33 in E. Ferenc-Szydełko (ed.), Act on Copyright and Related Rights: Commentary (Warsaw 2016)). But there is controversy surrounding for example the issue of designing and disseminating three-dimensional miniatures of architectural icons (e.g. as souvenirs). Opponents of recognising such activity as falling within the bounds of permitted use point to the need to evaluate whether such use of works accessible in public space infringes the legitimate interests of the authors. This assessment has to be made in each instance where a protected work is being exploited on the basis of any of the provisions establishing permitted private or public use, as stated in Art. 35 of the Copyright Act.

In the context of video games, it should be pointed out that in most instances, the graphics of the game are based on 3D models, and thus the views of spaces presented in the game do not constitute a recording of publicly accessible places using photographic or film technology. A technology that has gained popularity recently for creating game graphics is photogrammetry, where numerous photographs are taken of a given object, in a range of shots and angles, and these photos are then processed to render a 3D image. This technology was used for example in creating The Vanishing of Ethan Carter and Star Wars: Battlefront. The sites where the narrative of the game plays out are thus generally presented realistically, but their appearance is not subject to any noticeable distortion. Moreover, even when not executed through video recording, the use of shots of publicly accessible spaces in realistic games may be compared to their use in films, which generally does not give rise to any major controversies under the Polish freedom of panorama.

But objects existing in reality are often imported into games stripped of their natural context, or are used in games featuring a violent narrative. Use of images of others’ works in a context different from that intended by their creators could thus lead them to express their concern or objection to such use. Then the authors could challenge the use of their work without consent not only on the basis that it conflicts with their creative interests under Art. 35 of the Copyright Act, but also relying on their moral rights, specifically the right to respect for the integrity of the work.

In summary, video game developers wishing to import into the world of the game structures, sculptures or other works located in public space and covered by copyright must display sensitivity in selecting objects for use in the game. The differing scope of freedom of panorama in different countries may encourage them to set the narrative of the game in countries where the regulations and case law are more favourable to game developers. The economy of those countries may also benefit from this use due to the increased tourist traffic. But even in countries, like Poland, where freedom of panorama has been regulated quite liberally, it is essential in each instance to conduct an individual analysis to identify potential challenges to use of the work, relying for example on Art. 35 of the Polish Copyright Act or infringement of the author’s moral rights.

Ewa Nagy, attorney-at-law, Intellectual Property practice, Wardyński & Partners