drachefly wrote:What? This is so far within fair use it's not even funny.
Where do you draw this conclusion from?
Before we get started seriously, let's set aside Punxutawney Phil, as he's a real-world celebrity. Totally fair game no matter what.
Let's see the rules on fair use, shall we?1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
The purpose and character issue is concerned with two main things: whether the use is derivative
; and whether the work is critical (i.e. whether it's about
the copyrighted work, as satire or a review). I'll take it in two parts:
- On the question of transformation: "The use must be productive and must employ the quoted matter in a different manner or for a different purpose from the original. … Transformative uses may include … symbolism, aesthetic declarations, and innumerable other uses."
Erfworld is using them as symbols, not as the original characters. We already know what these people must be like, so we don't need to be told that they're predictamancers.
Note as a matter of scale that simply making thumbnail versions of large images
is transformative because of the different purpose (providing convenient access). Meanwhile, creating a trivia book mostly composed of humorous elements from the copyrighted work it is about is not transformative (Castle Rock Entertainment, Inc. vs Carol Publishing group). Nothing substantially new was added in that case (only 2-4 wrong answers for each question), and the purpose of consuming the book would be to experience the original copyrighted work in a different way (this feeds into part 4).
- Erfworld is not critical, and is commercial, so it fails on those two issues. However, passing these is not at all required for a successful fair use claim.2) the nature of the copyrighted work;
The characters that have been used are themselves tightly derived from archetype. This sets the context, that the referenced material does not own the creative space around
it. This will come up in part 3.
However, fundamentally, the nature of the copyrighted work is fictional, so Erfworld does not gain the overall benefit of this aspect. Again, this is more of a special case where if this is 'passed' then fair use is greatly favored, while it doesn't do much against
fair use.3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
Clear win here - tiny portion of the original work used as a tiny portion of the using work.
Moreover, the use is not appropriating the characters, but merely the representation of the archetype
. This applies to the Weird sisters and Carnac, at least; not sure about the others.4) the effect of the use upon the potential market for or value of the copyrighted work.
This is "the single most important element of fair use" as stated by the courts, and it is an even clearer win! Erfworld could in no sense be used as a substitute for the originals. If there is any impact at all on the copyrighted works, it is positive.Conclusion:
The only things Erfworld has going against it is that the copyrighted works are fictional, Erfworld is not reviewing or satirizing them, and it's released for profit. Everything else
from the kind and magnitude of the use to the expected impact is in its favor.
I'm not a lawyer, but it doesn't take a lawyer to see how far off the borderline this is.