Poker Paint appeared to be a creative NFT project featuring art of poker pros -- until allegations of content theft emerged

[Dan Druff]

Interesting story broke this week which combined the NFT world, the poker world, and the controversies surrounding content theft and fair use.

A company called "Poker Paint" appeared on the scene a few years ago, started by a guy named Brent Butz, who is otherwise unknown in poker. They present art of known poker pros in action, in a colorful scheme. Here's one they did of Daniel Negreanu:



You can see a lot of their work at their website https://pokerpaint.com

This company was largely ignored by most until very recently, when they made the attempt to enter the NFT (non-fungible token) space.

PokerPaint posted 104 of its images to OpenSea (an NFT middleman sales site), and the NFT-obsessed poker community was initially excited... until they learned that these iconic images were stolen from hardworking poker photographers, and simply modified into "painting" format.

Poker photographer Eric Harkins was one of the first to point this out, on September 24, after David Lappin initially reported PokerPaint's foray into the NFT world.

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PokerPaint apparently even lifted an image from PokerGo footage in order to exploit Norm McDonald's death for profit, charging $1500 for this "painting" of him:

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https://twitter.com/PokerPaint/status/1441079894046355457

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PokerPaint attempted to calm the controversy by posting a statement on Twitter, but it just made things worse:

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https://twitter.com/PokerPaint/status/1441562192990535685

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https://twitter.com/HoldemMedia/status/1441599053016408068

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https://twitter.com/PokerPaint/status/1441572140835352576



Many other poker photographers subsequently came forward and pointed out that their work was stolen by PokerPaint, but Hayley Hotchstetler told a story which put PokerPaint in arguably the worst light:

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https://twitter.com/hayleyocho/status/1441565968468086786

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https://twitter.com/hayleyocho/status/1441567015076986884

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https://twitter.com/hayleyocho/status/1441569545387339776

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https://twitter.com/PokerPaint/status/1441571360640221187


So this guy can't even claim ignorance. He asked Hayley for permission to use her photography, she said no, and the guy did it anyway. Yuck.


Even Daniel Negreanu got in the long line to kick PokerPaint in the nuts:

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https://twitter.com/RealKidPoker/status/1441612929669894145


Some are also accusing PokerPaint of simply using an app or filter program to create this "artwork", and that he's not actually painting anything. He denies this:

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https://twitter.com/PokerPaint/status/1441581278063702018


Eventually, PokerPaint conceded that he should have contacted the photographers first, but his name is already mud, and I can't imagine this project going anywhere. It's unclear if the photographers victimized will take legal action against him, for any sales he might have already made.

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https://twitter.com/PokerPaint/status/1441581430585368576


I can't find the NFT offerings on OpenSea anymore, so presumably he's removed them.

[Dan Druff]

Update:

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https://twitter.com/PokerPaint/status/1442513816579985408

[Dan Druff]

On one hand, I can understand how a 25-year-old may not have realized he was doing anything wrong (though I don't quite understand his excuse for using Hayley's pic after she denied permission).

I'm willing to cut the guy some slack, chalk it up to ignorance of content law, and wait to see if he does the right thing.

However, I don't think his plan goes far enough. He knows exactly which pieces were originals, which were authorized copies of photos, and which were unauthorized copies of photos.

He should absolutely take down (and stop selling) all unauthorized copies until he contacts the photographers and gets their permission (and presumably gives them a piece of the sale).

Instead, he's going "negative checkoff" style, and stating, "I've pulled all pieces which have received complaints", which means he's still selling pieces where the photographer doesn't know about the situation yet! He should pull ALL pieces where any such complaints are possible.

[Dan Druff]

UPDATE:

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https://twitter.com/ImpdiWorld/status/1489792775423934475

[Dan Druff]

BUMP

Here we go again...

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https://twitter.com/MannyDaxwell/status/1527340867496792083

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https://twitter.com/steveodwyer/status/1527444206456913920

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https://twitter.com/PokerPaint/status/1527359665205481484



I think the only reason this guy isn't being sued is because he's probably viewed as uncollectable.

[aayjay]

I am curious, how does this copyright issue work on drawings. This guys 'art' is just filtering photos in photoshop. I am more wondering for example what if an artist saw a photo and draws from memory, is that infringement? What if he has taken a similar photo himself? If I draw a picture of someone and sell it do I have to compensate the person I drew? Etc seems complicated

[Dan Druff]

I am curious, how does this copyright issue work on drawings. This guys 'art' is just filtering photos in photoshop. I am more wondering for example what if an artist saw a photo and draws from memory, is that infringement? What if he has taken a similar photo himself? If I draw a picture of someone and sell it do I have to compensate the person I drew? Etc seems complicated

Copyright law can often be complicated and nuanced. Often it's a big risk to litigate these, because every court sees it differently. However, some are much more obvious than others.

If you drew a picture of an individual from memory -- even from memory of a picture -- it would probably be okay as long as it deviated enough to where it didn't seem to be a copy (or mostly a copy) of the picture itself. Of course, then you might have an issue with using the likeness of the subject for commercial purposes, unless the subject allows his likeness to be sold. At poker tournaments, this can be complicated because you do sign away your rights to have your image used for free (so ESPN/CBS/PokerGo don't have to compensate you for appearing in their footage), but that doesn't give outsiders the right to commercialize your image for free.

You are allowed to commission fan art, but only for personal use. For example, if I wanted to commission an artist to draw me a painting of Phil Hellmuth to display in my house, I could do so, and I wouldn't need to compensate Phil, nor get his permission. However, if I were to turn around and sell that painting of Hellmuth, that could be a problem.

It seems in some (but not all) cases, PokerPaint is either getting permission to sell these photos from the subjects, and in other cases it seems some just don't care if he does it or not. However, it is pretty clear he is committing copyright infringement by taking existing photos, and basically selling the same photos which are colorized/stylized differently.

As I said, the only reason he hasn't been sued is likely because he is viewed as uncollectable.

Why isn't he just giving up on this whole thing? Because it appears he's put a good deal of effort into developing and marketing this whole concept, and it's basically his dream. So now he's being told that his dream is illegal, and he can't accept it. He did attempt to negotiate with these photographers, but they ultimately decided they didn't trust him.

Now it appears to have become a game of chicken, where he is continuing what he's doing, and basically daring the photographers to sue him. He's probably assuming they won't actually do it, and they're probably waiting until he makes enough actual sales of this stuff to go after him.

The whole thing is a mess. Sadly, this could have all been prevented if he just did it all the right way, and developed licensing agreements with interested photographers, while avoiding the work of anyone else who wouldn't play ball.

[Dan Druff]

Still going.

Now Pokernews and Pokerstars have both sent Brent Butz cease and desist notices, along with legal threats.

https://www.poker.org/pokerpaint-cre...rtwork-rights/


I think the guy has to just give up. Embarrassingly, the one he did of Fedor Holz was poorly received by Fedor himself, who "hid" it and blocked Butz.

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https://twitter.com/brettblaster/status/1571936000355565570

[ftpjesus]

Still going.

Now Pokernews and Pokerstars have both sent Brent Butz cease and desist notices, along with legal threats.

https://www.poker.org/pokerpaint-cre...rtwork-rights/


I think the guy has to just give up. Embarrassingly, the one he did of Fedor Holz was poorly received by Fedor himself, who "hid" it and blocked Butz.

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https://twitter.com/brettblaster/status/1571936000355565570

At this point hes either just an arrogant Fstick or hes such an ignorant moron he cant comprehend simple Intellectual Property law. Either way hes about to get buried and destroyed financially. Some of the photogs might not have wanted to go after him in the courts but picking a fight with Pokernews and especially Pokerstars is financial suicide. Sure it maybe uncollectable but the potential for a future federal criminal charge of stealing IP is there once hes been nailed in civil court as well. I cant believe this guy is this clueless (which at this point Im not sure I believe since he appologized before regarding his actions and then went right back to it. This speaks more of deliberate disregard for the law and that doesnt bode well).

[Dan Druff]

I think he's scared of the big companies actually suing him, hence the reason he took the Fedor NFT down so quickly (also lol @ Fedor not wanting it and blocking him anyway!)

I think the kid invested so much of his hopes and dreams in the business (I don't believe $150k though) that he just can't accept that it won't work. I think at the beginning he really didn't understand IP law. However, now that he does, he should either give up, or partner with someone who is capable of drawing original pics of the players, and then he can probably sell them under the "fan art" exception.

But yeah, you can't just take other people's published photos and resell them in modified form for your own profit.

[Dan Druff]

BUMP

Looks like case law on this matter wasn't as settled as I thought.

But now it is.

Andy Warhol was sued over a use of a 1984 photo of Prince, where Warhol re-colorized and re-styled it in a manner not too different from what PokerPaint did.

36 years after Warhol's death, and several years after Prince's death, this was settled by the US Supreme Court.

Article here: https://archive.ph/yA1Pt



BTW I don't think he's a bad kid. I've talked to him some. He just had an idea which unfortunately ran afoul of copyright law, and then it was hard for him to give up what was at one point a well-received project.

[ftpjesus]

BUMP

Appears he’s back at it again still in 2024. Dude can’t take a hint he needs to be slapped down legally for his antics.