On January
12, 2018, photographer Christopher Sadowski sued IGN
Entertainment, Inc. (“IGN”)

for copyright infringement.  The
copyright in question: a photograph of the Pokémon
GO
homepage on
Sadowski’s cell phone, similar to (but not the same as!) the stock photo shown
below.

Sadowski
licensed his photograph to the New York Post for a July 12, 2016, article regarding
a man who got caught cheating on his girlfriend through Pokémon GO

It appears that IGN may have infringed Sadowski’s copyright by using the
image when discussing the New York Post article in an IGN Hungary article titled “6
Crazy Pokémon GO Stories.”

 The image is absent from IGN’s U.S.
version of the article
.

However, Sadowski’s
case may have an Achilles’ heel.  Because Niantic and Nintendo have intellectual property rights
in their game (including the login screen), Sadowski’s photograph is arguably a
derivative work, and his copyright would thereby
extend only to the “material contributed by the author of such work, as
distinguished from the preexisting material employed in the work
.” 
That’s not likely to be much.  Moreover,
whatever minimal copyright Sadowski has in his photo “does not imply any exclusive right in the preexisting
material
.”  Lastly, protection for a derivative work using
someone else’s material in which copyright subsists does not extend to any part
of the work in which such material has been used unlawfully (e.g., without the
appropriate license).  In other words,
there’s a fair argument that Sadowski’s photograph rights are only as good as
Nintendo and/or Niantic will allow them to be.

Sadowski’s
case against IGN is a cautionary tale for Internet content creators. While many questions about the applicability
of fair use on the Internet exist, it remains a bad idea to use images from other
websites–even news websites–without appropriate permission.  Indeed, a royalty free version of the exact
same photo exists

and could have saved IGN a lot of grief.

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