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Culture War Roundup for the week of August 12, 2024

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Copyright literally is the right to make copies. If little Timmy draws a picture of Mario for his fridge, it’s within Nintendo’s legal rights to issue Timmy with a takedown notice and threats of legal action if he does not comply.

It'd be within Nintendo's legal rights to do such a thing, but it'd also be pretty easy for Timmy to defend himself with the Fair Use defense in the USA. Fair Use used to only be something that could be invoked defensively, but in 2015, the US 9th circuit court of appeals ruled that it was an expressly authorized right and exception to copyright (IANAL, so I don't know the exact difference this makes in practice), according to the Fair Use Wiki page.

There are 4 primary factors to consider when determining if some unauthorized copying falls under Fair Use, though other factors may also be considered:

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.
  2. the nature of the copyrighted work.
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole.
  4. the effect of the use upon the potential market for or value of the copyrighted work.

1 and 4 would be the most relevant for Timmy. It's not for nonprofit educational purposes, but neither is it commercial, and Timmy could argue that it served the educational purpose of him getting practice in drawing. And it's also almost certain not to have any effect on the potential market or value of any Mario property owned by Nintendo.

In the case of drawing fanart of Mario (versus recreating a specific official art of Mario), I believe trademark law, not copyright law, would apply, and Timmy would have an even stronger defense, since trademark infringement is based largely around the likelihood to confuse the audience or a customer, and Timmy's picture hanging on his fridge will almost certainly not do that.

The law can be bizarre and counterintuitive, but I believe it's not so rigid that someone drawing fanart of a famous character to hang on his fridge can be considered legally infringing just because of some technicalities. In the US, the people who write the laws and the justices who interpret them generally tend to understand that the purpose of copyright isn't to give creators exclusive rights to create copies, but rather to incentivize creators to create more and better things by giving them greater ability to monetize their creations through granting them certain exclusive rights to create copies, and this plays out with Fair Use. With trademark law, the purpose isn't to give companies exclusive rights to produce copies of certain logos or characters or etc., it's to help consumers avoid confusion by making sure that only certain companies get to publish certain logos or characters or etc., and since some unpublished fanart of a trademarked character simply can't cause customer confusion, there's no way that Timmy would lose a case against Nintendo in this.

Of course, the mere threat of lawsuit could be enough in many cases.