Copyright question regarding Nintendo.

[KittensConsole]

So I have had it a bit rough since opening my etsy shop. Most people on there don't seem to understand my question as they mainly do not know what or who Nintendo is. They claim an item I spent my time on and worked hard on creating violates copyright laws. I designed the item myself and yes I was inspired by a Nintendo product. I think it's fair that for making an innovative design from an existing one and having HAND CRAFTED it myself I deserves a profit for it while also wanting to share it with others.

Now when selling items on Etsy, have you tried selling Nintendo based items? How has it been if you have? Have people given you trouble or has Nintendo actually flown in and flagged it down?

I am honestly emotionally worn by this as I simply do not agree with most copyright laws, tho I know they are law and I can not change that. Just wanted to verify the truthfulness of all this mess. Do I really need to get approved by them before selling an item that I was inspired to make, one that does not use any image created by them, it just holds a similar likeness? They say on their page they do not take individual approval requests, that they have to decline every one no matter what. So can anyone clear this up?

[RMDC]

Fan works are kind of a grey area. Legally, it's actually pretty black and white: at any point, Nintendo can send a C&D, and if you don't C or D, you'll get the pants sued off you. In practice, that's not terribly likely. Nintendo is highly protective of its IP, but the company also realizes that fan devotion is critical to their success. However, C&Ds are typically issued for egregious violations, e.g. you're trying to pass their IP off as your own (rather than obviously paying homage to their work) or you're making tons of money and potentially infringing on their own merchandising revenue streams.

Nintendo will never approve your license requests. If you choose to use their IP as inspiration for your works, you operate under the (small, but present) risk that you will have to pull any infringing materials from your shop upon receipt of a C&D.

Now as for me, I'd never send anyone a nasty Etsy convo about their homage piece. That's obnoxious. Now, it's a different matter if someone is ripping off, uncredited, the work of a small-time artist rather than a corporate entity - especially an artist who was her- or himself making an homage piece, meaning that the ripper-offer is relying on the fact that the original artist couldn't sue to defend her or his work from being infringed because the original work is itself infringing on Nintendo's copyright. For example, someone might take one of your Nintendo-related bracelets and copy it or turn it into a stitching pattern, then sell it without mentioning your name or asking your permission. That's another risk you run if you use "Nintendo-inspired" themes in your work: someone else can rip you off, and you can't do jack about it.

As a practical matter, the worst a small-time artist will suffer is - if you're lucky enough to catch their attention - a letter from Nintendo's lawyers saying "cut it out". But keep these issues in mind as you proceed.

[Eliste]

I am honestly emotionally worn by this as I simply do not agree with most copyright laws, tho I know they are law and I can not change that. Just wanted to verify the truthfulness of all this mess. Do I really need to get approved by them before selling an item that I was inspired to make, one that does not use any image created by them, it just holds a similar likeness? They say on their page they do not take individual approval requests, that they have to decline every one no matter what. So can anyone clear this up?

Sadly, whether you approve of it won't stop you from getting sued, so you need to be careful.

This is not legal advice and you really should get in contact with a lawyer in your own jurisdiction who can give you proper advice as the law in your country might be slightly different.

Without seeing what it is and what it was inspired by its almost impossible to tell whether it will be something that will give rise to a copyright claim. Even then, it can be quite subjective and you may need to a judge to rule on it. However, getting to the point where a judge does that can be extremely expensive which is why most of these things don't get to court as the little guy folds because Nintendo has much more money.

If it is truly a creation of your own, you might be ok. But, if it is close enough to what Nintendo does, enough that others would recognise your inspiration, then you probably wouldn't be ok. The fact that you are trying to actually get money out of it makes any claim that its not copyright infringement harder to prove- if you weren't selling it you'd be more likely to be fine. It depends a lot on how much of their work can be seen in yours.

Getting permission to sell it is the only way to guarantee you don't have a problem, however from what I know that's almost impossible to get from Nintendo. It very much comes down to do you want to take the risk of a law suit? because if you're in the US, statutory damages for copyright infringement can easily run to hundreds of thousands before you even add on lawyers fees. Is the fifty bucks or whatever you'd make out of this worth the possibility that you might get threatening letters, a lawsuit and thousands to pay? Only you can answer that, but if you're in this much of a quandary about it I would highly suggest finding a lawyer who specialises in copyright law and paying for their opinion.

[KittensConsole]

Thank you both for the very detailed answers. I have researched more and more into this matter and I understand why people on etsy were buggin me about it. Though I disagree with them.

1. funny thing is my money I would gain would go straight back into nintendo's franchise as I am a fan.
2. People on etsy seem more miffed that those who make copyright images for sale in w/e media they choose, make more money then those who follow laws and are too afraid to venture into fanart and make original pieces. They also hate it because fanmade work already has a prebuilt fanbase that we cater to and don't really have to work to gain. Unlike original pieces where you have to work more for a fanbase.

These people have also upset me by saying that those who do make fanart to sell are piggy backing off of other's works and that I should follow the rules and make "real art". This is something I would think even offends those on this site. It's the fact that fanart isn't considered real art just because it's made with a specific premade image/trademark in mind. Art is art no matter what you do. So telling me that I should stop ripping off of others work and make real art kinda irritates me.

Sorry felt like ranting. I think this copyright stuff is a bit outta hand. We make fanmade works that do deserve payment for, at the very least, our devotion into the piece. It is still art. Also we aren't trying to claim we are the creators. Plus again our money most likely will just go back to the developers anyway.

[Eliste]

One of the other issues is that you might not be treading on copyright, but trademarks. I know a few companies have trademarked images as well as holding the copyright in them, and trademarks are much more vigorously protected.

The fact of the matter is this. If someone makes something that is sufficiently creative to warrant legal protection, they are entitled to do what they want with it and prevent others from doing something they don't want them to do with it. If you were the one to originally create a piece, you would want that protection so that bigger companies wouldn't come and copy it and you get nothing. It is to protect the artist's work and allow them to actually make a buck off it. Yes, it has gotten complicated, but the original basis is still really valid, almost especially so since its so easy to copy things now.

Now, are the people on Etsy being a bit crazy about it? Possibly. But they are also looking out for you whether you feel they are or not. One single infringement of copyright can cost $150,000 in statutory damages, and that's not the maximum and doesn't include what you might have to pay in lawyers fees! By bringing it to your attention, you can choose what you do in an informed way.

The fan art/real art debate is silly. Most things are inspired by something else. The trick is that in order to really consider it your own, it needs to be different enough that it is clear that it is not copying something- just inspired by it. For instance, these Disney gender-bent images are clearly inspired by their Disney counterparts, but I doubt that anyone would claim they were copies or not real art. But they clearly express an originality, creativity, and talent of the artist who made them.

And don't confuse creativity with effort. Just because I've slaved away on a cross stitch for 9 months does not mean I've managed to get any protection for it. We can spend hours of work on something, but it still might not have any protection unless you've managed to put your creative stamp on it.

Its all about having your own artistic voice. This means that if you want others to recognise your work as more than a copy that you need to express your own artistic voice in your work. If others can't see your own voice in something, I find that's when people start calling it into question.