Naughty Dog Confuses ‘Fair Use’ and ‘Not Fair Use’ Again in Last of Us

Some things are free in life.

Most things, especially in the business world, aren’t.

This seems like a pretty simple concept, but game developer Naughty Dog needs a refresher course, after taking a Boston T map from an outside source without permission or payment, and using it in The Last of Us. 

In another mistaken case of “fair use,” Naughty Dog almost certainly used Ellen Page’s likeness (which Quantum Dream paid for in producing Beyond: Two Souls) for the character of Ellie.

And in case you weren’t sure, this is what “fair use” is, according to the Merriam-Webster dictionary:

a legal doctrine that portions of copyrighted materials may be used without permission of the copyright owner provided the use is fair and reasonable, does not substantially impair the value of the materials, and does not curtail the profits reasonably expected by the owner.

In both cases, Naughty Dog clearly profits from the materials it used, so the owners (the map maker and Ellen Page) should have been compensated for their work.

The two cases reflect a stunning lack of foresight from the Sony Online Entertainment-owned company. In a world where lawyers are paid to predict any points of liability, it’s surprising that both things weren’t caught before the Last of Us launch on June 14. 

You think this is an obvious play on “Naughty Dog”‘s name, but it’s actually just an excuse to post a picture of a cute puppy. Awww…

Then again, fair use is also a question that has puzzled countless Internet users. For instance, the debate about whether or not Facebook users should own the rights to their photos after posting them continues to rage, though for now, the social media giant is winning. It’s a difficult question in the journalism realm as well, with many reporters wondering what information is public knowledge and which needs to be linked back to the original source.

News aggregation walks a fine line between fair use and plagiarism.

Regardless of whether or not Naughty Dog is at fault here – apparently it has reached out to the creator of the Boston T map and parted somewhat amicably – let’s agree that things haven’t gone perfectly with the Last of Us release.

I haven’t played it yet, but have only heard good things about the gameplay. Outside of the game itself, a large amount of criticism has plagued Naughty Dog as it deals with these self-created controversies.

So next time, keep it simple and keep it easy, Naughty Dog.

Pay for the product and avoid copyright infringement, and all the drama that comes with it.