When I wrote about the sudden spike in Baby Yoda content on Second Life's marketplace last week, I ironically closed by saying they were on sale now "[u]nless or until Disney's lawyers deploy a totally uncool interpretation of fair use fan art". I.E., uncool in the sense that it would probably stand up in a court of law. As reader Zoey explains:
This wouldn't be a fair use, it in no way is for a transformative purpose, such as to comment upon, criticize, or parody or even for educational use, The only purpose is for the creators to make money off a copyrighted item which is not fair use at all. This would fail in court in at least 2 of the 4 factors. Factor 1 Transformative: being the purpose and character of your use, being you are taking a copyrighted figure to make Money. and Factor 3 Substantial of the Portion Taken, its a 100% copy of the copyrighted material with no changes. It's not a totally uncool interpretation of fair use for Fan Art. The creators are profiting off or have the potential to profit by cashing out on a copyrighted character.
Fan Art is drawing your own interpretation of a character and posting it, not selling it for profit. IF I turn around and made my own Baby Yoda fan comic and sold it I would be sued to death by Disney and rightfully so. IN order to rightly create and sell a Baby Yoda product in any medium one has to get permission from the copyright holder period.
I am not a lawyer but that all sounds about right, except possibly the "sued to death" part -- a takedown request to Linden Lab (in the SL Baby Yoda case) or a stern letter from Disney's lawyers is way more likely. (Ask the creators of an SL community for Frank Herbert's Dune.) And in any event, Fair Use is not an instant bullet proof defense. As the lawyer for a major game company once told me, "If you want to end up in court, claim fair use."
Oh yeah, another slight demur to Zoey's comment: Even getting permission from the copyright holder might not protect you. Ask a YouTuber named Toos:
When he first began to make the Vader [fan] film, he contacted Lucasfilm who gave him their blessing to make it, as long as he made it without crowd funding and left the video un-monetized, meaning that no ads would run on it, hence there would be no revenue to collect from it.
Earlier this week, Theory posted a video saying that Disney and their partner company Warner Chappell had claimed that because the custom score used in the film used a rendition of the Imperial March score, then it was in violation of their copyright policy. They used this copyright to claim that the entire film was now their intellectual property and were now going to run ads on it and collect the revenue themselves.
Yesterday, on January 16, Star Wars Theory posted another update video on his channel regarding Disney’s copyright claim, but this time it was good news. According to him, after a backlash from Star Wars fans, Lucasfilm stepped in and told Disney that Theory made the film under a certain set of rules and that they needed to release the copyright claim that they placed on the Vader fan film.
And apologies to anyone who missed the intent of my irony. And happy holidays!
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