Talk:Hinagiku/@comment-34999980-20180415222448/@comment-26440004-20180416023304


 * SIGH* I will post this again I suppose. Especially because I forgot to direct this at you. For reference, I'm a Poli Sci major and a former Legal Studies major. No amount of name calling will reflect kindly upon you. You asked a "friend" for advice. Is this friend versed in the law? I'm just curious because I will break this down for you and if you would like me to, since I have read the DCMA, I can comment on that if you have any more questions.

Just because it was posted to DevianArt or another platform, doesn't technically make it copyrighted; you actually have to go through the legal process of copyright if you don't want someone copying you or using your work or at the very least watermark it. However, the big difference in these cases is that the artwork was used in a completely different context; the concept was used for the physical characteristics of the characters, however the story was completely changed. On top of that, since fan art is protected under fair use (from the original creators), that means that the usage of the fan art is also protected under fair use, especially because it was not used in the same original context that the artwork was meant to be used (i.e. the change in stories/backgrounds). Keep in mind, fan art is not original work and is a COPY of an original work. By your logic that would make the fan art illegal and subject to copyright infringement. Whether or not the artist in question's permission is needed could be considered moot especially considering the original artwork (I'm talking about all of the ones you commented on), it is safe to assume, did not gain permission. Uncopyrighted material is considered fair game is usage.

"Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances. Section 107 of the Copyright Act provides the statutory framework for determining whether something is a fair use and identifies certain types of uses—such as criticism, comment, news reporting, teaching, scholarship, and research—as examples of activities that may qualify as fair use.  Section 107 calls for consideration of the following four factors in evaluating a question of fair use: https://www.copyright.gov/fair-use/more-info.html
 * Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes:  Courts look at how the party claiming fair use is using the copyrighted work, and are more likely to find that nonprofit educational and noncommercial uses are fair.  This does not mean, however, that all nonprofit education and noncommercial uses are fair and all commercial uses are not fair; instead, courts will balance the purpose and character of the use against the other factors below.  Additionally, “transformative” uses are more likely to be considered fair.  Transformative uses are those that add something new, with a further purpose or different character, and do not substitute for the original use of the work.
 * Nature of the copyrighted work:  This factor analyzes the degree to which the work that was used relates to copyright’s purpose of encouraging creative expression. Thus, using a more creative or imaginative work (such as a novel, movie, or song) is less likely to support a claim of a fair use than using a factual work (such as a technical article or news item). In addition, use of an unpublished work is less likely to be considered fair.
 * Amount and substantiality of the portion used in relation to the copyrighted work as a whole:  Under this factor, courts look at both the quantity and quality of the copyrighted material that was used. If the use includes a large portion of the copyrighted work, fair use is less likely to be found; if the use employs only a small amount of copyrighted material, fair use is more likely. That said, some courts have found use of an entire work to be fair under certain circumstances. And in other contexts, using even a small amount of a copyrighted work was determined not to be fair because the selection was an important part—or the “heart”—of the work.
 * Effect of the use upon the potential market for or value of the copyrighted work:  Here, courts review whether, and to what extent, the unlicensed use harms the existing or future market for the copyright owner’s original work. In assessing this factor, courts consider whether the use is hurting the current market for the original work (for example, by displacing sales of the original) and/or whether the use could cause substantial harm if it were to become widespread."