[MindFad]

I tried searches for this, but nothing came up.

Anywho, I was just wondering about exactly how fair use worked. As some of you know, I have a lot of icons based on Nintendo characters. Nintendo couldn't just jump up and decide to sue the hell out of me, could they? I know they won't, but could they legally? Is it fair use for me to create these icons using their characters and distribute them for personal use?

I'm not worried, just curious. Pheer the might of the big N.

[godzookie2k]

Originally posted by MindFad:
Is it fair use for me to create these icons using their characters and distribute them for personal use?

I'm not worried, just curious. Pheer the might of the big N.

Yep, they could sue the pants off of you. Their creations, their copyright, and you need permission technically, for creation and distribution.

the only imagery created by someone else that is copyright free is (someone can call me on this number, but I think its right) anything 50 years old or older.

[art_director]

Originally posted by godzookie2k:
Yep, they could sue the pants off of you. Their creations, their copyright, and you need permission technically, for creation and distribution.

the only imagery created by someone else that is copyright free is (someone can call me on this number, but I think its right) anything 50 years old or older.

i believe that's right, fifty years plus. when it comes to photos we're talking fifty years beyond the photographer's death. illustrations may fall under that legal restriction as well.

as for the icons, well, are you trying to make cash off them? if you're using them for personal purposes (ie. desktops for your computer / pocket pc) don't worry about it. they wont bother legal pursuit. now if you're making t-shirts and selling them online you best get an attorney if they call.

[art_director]

one other thing, if you're using icons that are owned by nintendo, or any corp. for that matter, they have legal teams that regularly renew the ownership of their art (icons included) and the legal restrictions could go well beyond the fifty years mentioned by godzookie.

in other words, don't try to resell their property and you'll be just fine. probably.

[MindFad]

The art itself is mine. I just recreate their characters as icons (examples seen in my sig). And I don't try and make any profit from them; I create them and distribute them only for personal use (through icon Web sites and such) by others. And it is fifty years beyond the person's death.

Any other input appreciated. Thanks.

[Chuck_star]

I was under the impression it is 50 years if it belongs to a person and 75 years if it belongs to a corporation. I remember this from my Legal and Ethical aspects of Multimedia Class a few years back.

This may help
http://fairuse.stanford.edu/

[Chuck_star]

also if its a TradeMark
20 years with option to renew.
TM is country by country

[art_director]

Originally posted by MindFad:
I just recreate their characters as icons (examples seen in my sig). And I don't try and make any profit from them; I create them and distribute them only for personal use (through icon Web sites and such) by others. And it is fifty years beyond the person's death.

Any other input appreciated. Thanks.

-- if you ask for "donations" on your site you are hoping to make a little cash. corp lawyers could rip you a new a$$ on that one.

even if the art is yours the idea / personality the images represent are the property of a corp. such companies don't take their property licensing lightly.

for years i worked on an advertising account that uses an icon of a man. the image is well known internationally to brand the client's products. at one point someone decided it would be funny to spoof the character on t-shirts and a website. while we all had a good laugh the client eventually sent the lawyers after the people using their mark. they started with a cease and desist but it fell on deaf ears. in round two the lawyers didn't play nice and threatened to screw the company's happiness if they didn't shut down the site and discontinue selling the shirts immediately. in the end it worked. i can tell you that our client had every intention of punishing the abuser of his icon to the full extent of the law.

while you may not *intend* to make a profit, the corp that owns the icons has spent a considerable amount to create and promote them. why do you think you should be allowed to use change them? of course, you may not get in trouble, but then why risk it? also, imo, you are quite talented. why rip off someone else's work when you could create your own?

[godzookie2k]

at the very least you need a "Mario brothers is ™ & © Nintendo Corporation, Megaman is ™ & © capcom" etc etc underneath each icon listing or at the bottom with your copyright.

[MindFad]

Originally posted by art_director:
while you may not *intend* to make a profit, the corp that owns the icons has spent a considerable amount to create and promote them. why do you think you should be allowed to use change them? of course, you may not get in trouble, but then why risk it? also, imo, you are quite talented. why rip off someone else's work when you could create your own?

I'm not ripping anyone off. I've just been a big Nintendo fan my whole life, and I thought making icons of these famous Nintendo characters would spread a little joy and nostalgia -- if not possibly in some small way even help Nintendo! They are my own creations, if not my own characters. But ripping Nintendo off? That is completely not my intention in making these icons. Come on.

If they tell me to stop, I will. But for now I think a lot of people are enjoying them (at least, I get lots of thank you mail), and I don't think Nintendo's getting hurt by it -- like I said, if anything, it's helping them out.

And I plan on putting some of my own actual characters/work/drawings together into an "original" set, I guess you could say. Just as soon as I finish up with a few more game sets with famous video game characters.

And I will start doing what you suggested, godzookie. I should've done that to begin with. Thanks.

[art_director]

Originally posted by MindFad:
I'm not ripping anyone off. I've just been a big Nintendo fan my whole life, and I thought making icons of these famous Nintendo characters would spread a little joy and nostalgia -- if not possibly in some small way even help Nintendo! They are my own creations, if not my own characters. But ripping Nintendo off? That is completely not my intention in making these icons. Come on.

Nintendo copyright policy (from their site):

All content on this website, including articles, artwork, screen shots, graphics, logos, digital downloads and other files, is the property of Nintendo of America Inc., unless owned by a third party, and is protected by United States and international copyright, trademark and other intellectual property laws. Trademarks and copyrights for third-party games and characters are owned by the companies that market or license those products.

What does that mean?

All content on this website, including articles, artwork, screen shots, graphics, logos, digital downloads and other files, may not be used on any other web site, in any publications, in public performances, in connection with any product or service that is not Nintendo's, in any manner that is likely to cause confusion among customers, in any manner that disparages or discredits Nintendo, or in any manner that is otherwise exploitative for any commercial purpose or that otherwise infringes Nintendo's intellectual property rights.

Can I write in and request permission?

Nintendo does not grant permission to individuals to use any content from this website. Because we receive thousands of such requests, our policy is to decline use of our trademarks and copyrights.

-------

as you can see in the above legalese, you are ripping off the icons. personally i don't care what you do. i've simply been trying to get you accurate information related to your original post.

so, will they come after you? probably not, but since the video game industry has annual sales of $10 billion in the u.s., you might want to be careful. that money can buy a lot of legal power.

as for your icons *helping* nintendo, i guarantee they wouldn't see it that way regardless of how long you've been a fan.

[MindFad]

Yes, I know that much. I was responding to you telling me I'm somehow "ripping Nintendo off." I don't know how you define it, but I don't feel I'm ripping anyone off. Like Mad Magazine will redraw the characters themselves (and countless other funny comics, for that matter) -- say, Pikachu -- and do a little spoof of the character. That's how I see what I'm doing. I'm not using *specific content* from any of their sites. I'm creating these images myself, but I am using their characters.

Please define "ripping them off" for me, too. From my standpoint, I'm simply making these for the fans that enjoy them. You make me sound like such a bad person.

[Chuck_star]

I think art_director is just looking out for you(not make you look bad).

IMHO I doubt that nintedo would come after you. At the most, a cease and desist.
I would do my best to make a distiguisable difference in the art, which it sounds like you've already done.

I don't think you have anything to worry about, with what your doing. I can't imagine all the developed icons at xicons have permission(I could be wrong).
i.e Starwars, Harry Potter, MLB/NHL etc.

Don't the people at xicons have any info for you?

[art_director]

Chuck_star is absolutely right, i'm just looking out for you.

[MindFad]

Well, it didn't come off that way to me. Maybe I'm just a bit touchy. Sorry.

[derien]

Originally posted by MindFad:
Yes, I know that much. I was responding to you telling me I'm somehow "ripping Nintendo off." I don't know how you define it, but I don't feel I'm ripping anyone off. Like Mad Magazine will redraw the characters themselves (and countless other funny comics, for that matter) -- say, Pikachu -- and do a little spoof of the character. That's how I see what I'm doing. I'm not using *specific content* from any of their sites. I'm creating these images myself, but I am using their characters.

Please define "ripping them off" for me, too. From my standpoint, I'm simply making these for the fans that enjoy them. You make me sound like such a bad person.

Mad can reproduce characters in that context because there is a degree of protection for parody/satire under copyright law. Unfortunately, because you simply have pure intentions, you are not so protected . If I were you, though, I'd just keep up the good work and not worry about it all that much.

[SimeyTheLimey]

On a related note, Mindfad, if you haven't already done so, you really should think about registering NSFG. http://www.copyright.gov/

I saw a thing the other day on TV about the guy who first drew the Smiley face. He lost billions because by the time he tried to register it, it was deemed to have entered the public domain. Your little dude is pretty original and if anyone copies him, registration will give you proof that he was yours first.

[MindFad]

Thanks for all the help and responses, guys. Much appreciated.

[dadder]

Originally posted by derien:
Mad can reproduce characters in that context because there is a degree of protection for parody/satire under copyright law. Unfortunately, because you simply have pure intentions, you are not so protected . If I were you, though, I'd just keep up the good work and not worry about it all that much.

derien is absolutely right, if you are 'basing your characters' on Nintendo characters and there is a degree of parody involved, you are safe. It is then protected under the freedom of speech law. You can make as many billions of $$$ as you want. Go for it!

[MindFad]

But I'm not "making up my own characters." I'm using there, but creating them myself. There's no parody. So I guess I'm not safe. Oh well. A very many people are enjoying them right now. I'm not going to stop. Just spreadin' the Nintendo joy.

[zigzag]

Fair use is decided on a case-by-case basis, but it generally includes parody/satire (e.g. Mad Magazine), education, research, news reporting, and commentary. Your icons don't fit any of those categories - you're simply copying and distributing your own versions of their trademarked and copyrighted images.

The fact that you're doing it for fun (or to "promote" Nintendo) is irrelevant to the issue of whether it constitutes an infringement. It's still an infringement, it's not a fair use, and therefore they can prevent you from doing it. They could even sue you for money damages, although they'd probably just ask you to stop at this point.

The "personal use" exception only applies to sound and video recordings.

I'm not taking sides, just giving you the information you asked for. Don't shoot the messenger.

[EnVoy]

This from the Xicons legal page:

"Authors are asked to obtain permission to use any pre-existing content in their designs before submitting them to this web site."

Technically, this situation is not covered by fair use (although I'm not a lawer), especially since you are displaying it on a website that IS in business for profit (through advertising ). Even though you have not copied the characters exactly, you have copied their "likeness", this is equally covered under Nintendo's copyright.

The bottom line is that most likely Nintendo doesn't even know you, or your icons, exist! Also, it's not worth the time/cost for them to come down hard on a small fish (assuming you are not a bizillionaire!). You can't get blood from a stone Nice art, by the way! I wouldn't stop...

PS. just looking out for a fellow MacNN brother...

[MindFad]

I understand it is technically infringement, but I highly doubt anyone cares. Well, good thing I'm a poor mofo. Seriously, if they want me to stop, I will. I personally don't see any Nintendo execs freaking out about it. And I've gotten tons of thank you mail. People like them and are happy. Life goes on.

I'll have "original" work soon enough. I was just a big Nintendo and video game fan who wanted to jump at the chance to make some cool Nintendo icons for OS X only.

No one say anything to Nintendo, huh?