Thursday, June 4, 2009

Conan O'Brien: Transformed Background an Infringement?

Conan O'Brian, the new host of NBC's signature late night show, has transformed from Carson's curtain, to Leno's cityscape, to what truely looks like the other-worldly Mario Brothers:

The above background from NBC, with the overlay of Mario's kingdom by the good folks at Serious Lunch, (they have an animated gif there that is a challenge to watch for more than a few seconds), show that it's hard to dispute the two are the same. They also have a link to a much larger version for you to look at in more detail.

So, the question is:

Derivitive work?
Was the use transformative?
Did Conan/NBC need to license the scene?
If permission for a derivative work is required, but NBC did not seek it, would Nintendo likely sue?

I have my own opinions on this, but what say you?
(Comments, after the Jump)

Please post your comments by clicking the link below. If you've got questions, please pose them in our Photo Business Forum Flickr Group Discussion Threads.


Boston Photographer-MWynne said...

I could be wrong but I was under the belief that it is fair use if you are making fun of it. And I would say that he is making fun of it. The fact that he used Nintendo's video game to do so may be a problem though. He isn't poking fun at Nintendo and they may not want to be associated with his joke.

I could be way off but I think it's OK.

Anonymous said...


Don't you ever bother to even check your information before you post wild accusations online?

Did you bother to check with anyone to see if indeed NBC or the Tonight Show properly licensed the image, or to find out if they're using it under Fair Use exception of satire?

I'm guessing not. Instead you just threw up an unsubstantiated online accusation in the form of a query -- is this an infringement? -- potentially causing serious damage to personal and corporate reputations.

And you are one of the first to complain when others do this...

Talk about double standards! Is this sort of online irresponsibility your idea of a pursuit of excellence?

Will Seberger said...

I would bet, because there isn't any money on the table here (a la posters, t-shirts, etc.) that Nintendo, if they're even aware of the stunt, will probably take it as free publicity over something meriting a suit.

Right or wrong, the only reason the Fairey-AP thing came up is because AP had a rather pedestrian, practically worthless image that Fairey used to some degree to make a popular image.

Now if Conan makes that his official background permanently, or NBC starts selling lunchboxes, Nintendo might become angry.

Also, are we certain that those characters are from Super Mario, or do they just look like they're from Super Mario?

b.s. said...

yeah, not a ripoff. the similarity comes about when Serious Lunch photoshopped a bunch of mario screen shots together. maybe derivative, but it could have come from a totally different source and simply be coincidental.

John Harrington said...

This is not an accusation, it is a question, and discourse on the subject would be good for all involved. I do not suggest that NBC did not seek it, since I do not know. In fact, I asked "If permission for a derivative work is required, but NBC did not seek it, would Nintendo likely sue?"

The portion of that question "...but NBC did not seek..." suggests that they might have.

Further, "fair use" is still an infringement, but it is an allowable infringement.

Anonymous said...

John is morphing this blog into TMZ

Anonymous said...

This blog is becoming a time waster.

It's now illustrating one of the core problems of blogs - people who have nothing to say feel they have to talk about something in order to justify their "blog presence," so they prattle on about anything... whether factual or not.

"Better to stay silent and be thought a fool, than to open your mouth and remove all doubt!"

John, if you don't have anything of substance to talk about, why not just remain quiet?

John Harrington said...

Hollywood has all sorts of IP issues, usually resolved in favor of the studios. Discussing their IP issues relates to ours.

Same holds true for quality and service, which is why Kitchen Nightmares made it onto the blog.

Funny how some folks think all I do is criticize Getty, while others think I talk too much about Orphan Works, and still others think I am too hard on the free/spec photographers.

The topic & title of this blog is "photo business news & forum", and so when things relate to that, we talk about it. You don't have to like everything that's posted. Sometimes, what is discussed here is interesting to you, other times not. Next week, we'll be talking about the Festival of the Photograph, Look3.

Enjoy what you will, and avoid what you don't like.

Thanks for reading.


michael said...

Apparently, has interviewed Reggie Fils-Aime, president of Nintendo America, who thinks the use of the background is "great." The article implies that no permission was sought before-hand, but makes clear that Nintendo has no problem with the use.

Anonymous said...

You are going too far... I hope you can find more photo business news for us. Not just picking on this and that.

I guess you don't realize that since you wrote something about free jobs (I totally agree your points). Your articles went bitter and bitter. I'm not saying you are bad. Just need to find a spot to stop and think about what you've done.

Just a fan of your blog

Anonymous said...

I am willing to bet that Nintendo PAID to have that there. We live in an era of very creative advertising. It’s slightly subliminal message sits in the back your mind so when you go shopping for toys… there it is.

Chicago photographer said...

I would have preferred he use something like Pac-Man.

Rich Green said...

I would vote that permission and payment was made for the background.

Brandon D. said...

"If permission for a derivative work is required, but NBC did not seek it, would Nintendo likely sue?"

Probably not.

I'd be willing to bet that this type of stuff happens dozens of times every day (among major companies). And whether or not it is illegal, it seems to be most likely accepted as common practice, or free advertisement.

"I would have preferred he use something like Pac-Man."

I respectfully disagree. Mario's scenes were far more creative than any other game that was out at the time.

Anonymous said...

JUNE 04, 2009

Psst: Conan's Super Mario backdrop was a hoax

Show of hands: Who thought that screen-grab was for real?

An image mash-up where Conan O'Brien's new "Tonight Show" set was put against a Super Mario backdrop spread like crazy to video game and TV news sites and across social media networks.

Many assumed it was a direct screen shot from "Mushroom Kingdom" and that somebody on the "Tonight Show" production team literally stole their set design from the game. There were rumors that O'Brien might even mention it on tonight's show (sources say he didn't).

The vid game look-alike was actually the work of blogger Tim Bierbaum at, who created the effect in Photoshop after noticing that O'Brien's backdrop looked familiar.

"I just noticed how the shapes behind him look like Mario levels," he said. "It's quite clear, you see: the end of stage flag from Mario 1 is there right next to a keyhole from Mario world."

Bierbaum didn't seem to intend for everybody to take his post quite so seriously (and for that matter neither did I).

"It's pretty funny," he added, "I'm glad it's inspired some discussion."

Anonymous said...

ROFL! Ya'll will believe anything John tells you. It's on the internet, it's got to be true. HAHAHAHAHAHAH

FIW, Real journalists require at least two different sources, usually three, before publishing a story.

John Harrington said...

The question that remains isn't about sources, or whether or not it actually happened. My question is not whether or not it actually happened, but whether or not it was an infringement. Yes, we took on face value that it did happen, and that representation has been determined to be a misrepresentation.

The questions remain, and I will now answer them with my opinions:

>>>Derivitive work?

Had this actually happened, this use would have, with little doubt, been a derivitive work. As such, the copyright owner - Nintendo, would have had a claim.

>>>Was the use transformative?

No, had NBC used the background in the manner discussed, the use was not transformative, since O'Brien was not making a Nintendo joke, nor was it Super Mario Brothers night, and so on. NBC likely would have failed if they suggested it was a transformative use.

>>>Did Conan/NBC need to license the scene?

Thus, since it was not transformative, NBC would have had to license the original work/scene, or as is commonplace for networks, get their clearances department to get permission to do that.

>>>If permission for a derivative work is required, but NBC did not seek it, would Nintendo likely sue?

Nintendo would likely have not sued, since it would have been, and as is the case now (and we are participating in that) good publicity for Nintendo and Mario. Nintendo would have had a significant amount of time between the use and the statute of limitations, to sit back and see if the use negatively or positively impacted their business, and then act accordingly.

Yes, this blog, along with many others, took at face value, this as true. However, we never held it out as "look - NBC stole this....". We took it as an opportunity to engage in a discourse about what derivitive works are, and to what extent fair use would play a part. In the end, the fact that it did or did not happen, was not germaine to the questions at hand, save for the possible fact that we could have started each question with a hypothetical "if NBC had done this...".

In the end, the hoax perpetrator, as quoted above, said "I'm glad it's inspired some discussion."

Frankly, so are we. Anytime people become more aware of copyright, and their rights therein, it is a good thing. This teachable moment was a good one. Thanks to all for a lively discourse.

BCD said...

John's blog is to help the industry. As I understand it, not to create controversy or make him a bajillion bucks.

I think he does a very fine job and while her may err occasionally and go off course, it is still way more helpful to the industry and individual photographers than say, the self-promoting puffery of the one-name wonders or the guys that just want to sell you a workshop or make the world believe that they always know best.

Yes, I know John, he is a friend and I think he does a good job with this blog. I disagree with him on his perspective and sometimes his approach, but he makes the time in a busy life to research and write the blog and to respond to comments left here.

When I read the personal attacks left in the comment section, I feel that it goes over the line. We all do occasionally. The internet and lack of personal interaction remove the filter of everyday life and often people just write what they are thinking or feeling without rewriting or considering the impact of their actions.

So be it, it comes with the territory.

John has a tough skin and he understands how weird and cattish that some photographers can be. Personally, I would have changed the comment section into moderated comments only the first time someone went postal on me.

The internet remembers everything.

Unknown said...

Hi John,

I must say i agree with you about this beeing an infringement of copyright.

It doesn't look to me like it was beeing used in a satirical way, therefore beeing exempt from the satire (fair-use)

To me, this is a lazy graphic designer who figured it would be easier to steal someone else's work, instead of just creating one of his own. This is obviously the exact replica of one Super Mario level.

In my opinion, nintendo shouln't take this a "good publicity" stunt, since i assume that conan o brian didn't mention their name in the credits. Looks like someone stole and got busted.


Ravn Steinsvik

Unknown said...

Actually, i just looked at the Kotaku and Serious Lunch blog, and it's becoming blatantly clear to me that the NBC didn't intend this to be found out about.
Just the fact that they have removed their videos from youtube because of "copyright infringements" states that they don't think stealing is cool.

Another thing beeing that AFTER NBC was busted, they showed the background from nintendo.

(I'm guessing somebody from nintendo legal called NBC and told them they were happy the NBC was going to give them free PR)

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