mrimer wrote:
I personally think that including images of copyrighted materials in holds generally falls under fair use, and I'm personally okay with it.
Although I certainly agree with the spirit of what you're saying here, I think some clarity is necessary.
The term "
fair use"
is a legal term and it has an extremely specific meaning. Images of copyrighted materials in holds would not, in most cases, fall under what is legally defined as "
fair use"
in US law.
That does not mean that images of copyrighted materials appearing in a hold would lead to legal action, nor does it mean that images of copyrighted materials appearing in a hold would necessarily be a violation of law.
It also doesn't mean that use of copyright images "
should"
be illegal, but that's a separate issue.
The way US law works is as follows. "
Fair use"
, whereby you can use a portion of a copyright work without any legal repercussions, includes things such as "
artistic critique"
. So, if you post a picture of an artwork you made, it's fair use for someone to take an image no larger than needed to illustrate the criticism being made and reproduce it in conjunction with their opinion about the piece. For example, I can take short snippets of a movie in low-def quality and post them online if each snippet is short (generally less than a minute, but there is no hard and fast guideline), and I use each snippet I post to make an argument about the content itself.
Other examples of fair use include: news reporting, creating public archives, and research or teaching purposes (with restrictions). Pretty much anything else is not fair use.
Fair use does not include parody. Parody is not fair use. If the parody is true parody, it may fall under fair use if the use of copyright materials is necessary in order to make the criticism clear. But if it isn't necessary to draw the parallels, or if the work is satire (a parody of one piece whose commentary is actually about a different subject), then it's not fair use. This is why Mad Magazine changes the names of movie titles and characters when they make fun of them.
Fair use does not include derivative works. The exception, again, would be if the only way to make the social commentary is to include copyright materials. An recent example of this was a dramatic parody of Nabokov's Lolita, written from the perspective of the stepdaughter Dolores (Lolita) and skewed in order to make the protagonist of the novel appear to be highly creepy and abusive. The parody was not well-written, but it still constituted fair use because its intent required the direct comparisons to the famous novel.
So there are actually three reasons I'm writing this:
1) To clarify that "
fair use"
has a specific meaning and it isn't generally what people assume.
2) To talk about what is legally actionable, which is a separate issue, but should be the main concern when Caravel publishes holds.
3) To talk about what "
should be"
the state of law in my personal opinion.
Let's segue to 2.
In practically all cases, if all of the following are true:
a) You aren't making money from a work.
b) You aren't misrepresenting your work as being associated with the original or otherwise officially sanctioned.
c) You aren't reproducing anything that the originator of the work has not put into public view already.
d) What you are producing does not include sizable portions of content which is sold or reserved for sale by the person or company.
...then there is no way you can be successfully sued for damages, and it is extremely unlikely that anyone would wish to. This is because the person or company cannot show that you have hurt their business or bottom dollar in any way.
In US law, they can still tell you to C&D, and they have the legal standing to do so. However, this comes with no penalties or fines if you're not profiting from it or hurting their business by it in the first place. It just means you have to remove the copyright content, or else face legal sanctions.
Here are the issues from Caravel's perspective.
1) If it's possible that the inclusion of copyright content in Caravel holds constitutes an actual reason why people decide to purchase a Caravel product, then this could be an problem, but this is a long shot. This is mainly because Caravel does not advertise its user-made holds other than bragging that they exist in large numbers. To an outsider, there is no lure to purchase Caravel content based on assuming you'll get, say, some Star Wars content. This means that free holds, even though they may require a pay engine like GatEB, are exempt from claims that "
copyright violations make Caravel money"
and "
Caravel abuse of copyright costs our company money"
.
2) Nobody would assume a DROD hold is an officially sanctioned product of anyone other than Caravel. There's no way you could confuse a DROD hold with any other non-strategy-game product out there, especially visual media, and no reasonable person would assume that something appearing in a DROD hold means that there is a direct association with the company owning the copyright.
3) Even if (2) above were a problem, a disclaimer would suffice to make the distinction clear and that the content is used without permission and by the grace of the owner.
4) The strongest case in law comes from a company's actions. Hasbro, for example, has not only turned a blind eye to thousands of derivative works, it has expressly defended them both in official statements as well as by adopting fan-generated content for its own use in turn. If a company does not defend copyright in a multitude of cases similar to yours, they have a much weaker case if they decide to attack only you (and it seems highly unlikely that they would try).
If you can find substantial examples of copyright use that you know a company is aware of but does nothing about, you are safe to use the copyright yourself in a similar context.
5) Finally, even if despite all the facts above, someone claims copyright infringement, the worst case scenario is the hold needs to be removed from download until it can be modified.
Granted, all of this is assuming these are user-generated holds and not holds Caravel is selling. It's a different ballgame in the latter case. But that's not what we're discussing.
To hit the last point, I think it should be expressly legal to make any derivative work as long as it is prominently disclaimed, features no copies of trademark, and contains only images, music, and the like which are generated independently of copying (though they can be nearly perfect copies anyway). This is how Japan does things, and it benefits companies and users alike. Hasbro knows this and this is why they have adopted not only a laissez-faire attitude toward fan-produced works (even erotica and works significantly different from the spirit of the intended work for its initial target audience), but openly encouraged them.
The Internet is making many companies shift position somewhat in how they pursue copyright issues, partly because it's too hard to prosecute every case, and partly because they now realize the remix culture actually makes them profit. So I hope that case law eventually follows this path and copyright restrictions relax substantially.
However, until that happens, it pays to know what your rights are. It's not fair use to publish a copyright image in a non-SmS hold in almost any case. However, it's not legally actionable, and even if it were, it would not lead to any negative consequences whatsoever for Caravel. Furthermore, you can easily predict response based on how the company reacts in similar circumstances.
The confusion people get is in thinking there is some written-in-stone "
law"
about right and wrong with copyright, and nothing could be further from the truth. We have judges and juries and such because all law is open for interpretation. The best way to judge risk is not to read the law, but to examine what happens to others in similar cases. How law is interpreted historically is much more important than what law says, and this is one reason why there are scads of laws on the books that are never enforced.
____________________________
Trickster
Official Hold ProgressClick here to view the secret text
×Beethro and the Secret Society: Postmastered
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war10: Mastered (no door)
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[Last edited by Trickster at 07-29-2012 06:43 PM]