DakonBlackblade said:
Nuvendil said:
The way those "porn equivalents" get away with it is that they aren't actually those films. So it's not "Star Wars," not really. It's Shtar Shwars, if you catch my meaning :P. They are just similar enough to wink, nudge their way around it but not enough to infringe. Also, keep in mind two things: 1), they might have discreet permission and 2) copyrights give people the *power* to stop things, it doesn't force them to. Some companies - nearly all companies - allow a lot of things that are technically infringement to run rampant because A) they want the exposure, B) it would cause unwanted negative press coverage, and C) it's impractical.
Clasic example of that last bit, I was part of the Middle Earth Roleplaying Project for Skyrim. We were shutdown by WB when they acquired the rights to make games based on LOTR. However, they didn't shutdown other high profile, large scale LOTR projects like Last Days of the Third Age, Third Age Total War, Lord of the Rings Total War, the Edain mod. Why? because it would have caused an enormous uproar (even we got coverage from numerous sites and youtubers), it's impractical to pursue all these projects, and while they wanted to clear competition for Shadow of Mordor, they don't mind the exposure the IP gets from all these other, non-RPG/Action Adventure projects.
However, back to the point, yes it could be parody. In theory. But it would be a tough case to argue. Cause these people are trying, to the best of their ability, to make these things look like the official characters are officially getting it on :P . There's no wink nudge here, that would defeat the point. And that sits squre in the middle between ironclad fair use (criticism, scholasticism) and infringement. When you make that argument in court and send your case to the Supreme Court for a fair use evaluation, you may as well flip a coin, it could easily go either way. However, trademark infringement has very little defense when it comes to damaging the mark. Which is what this is really about, disparaging the IP. If the activity negatively effects the market itself or the marketability of the copyrighted or trademarked work or emblem, that tilts things towards the copyright holder.
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Wich is exactly the same idea here, if you have an original model, in a original story, doing something unrelated ot what is done in the source material then its not copyright infringement, wich is why 99% of the porn Lara Crofts are called Laura Croft, Clara Soft or whatever, they are not the same characters.
Blizzard isn't even trying to crack down on draw pornography because that is an area they have 0 chances of winning. Rule 37 porn have been around for ages and ppl creating it are protected by the same laws that protect fanarts and fanfictions, you aren't infringing anything if you have created it yourself and is using it non profitably in a scenario unrelated to the main product, even if it is based on the original. No one else but Blizzard (they have a long history of trying to do it with Warcraft related porn as well, and look how well that worked out for them) tries to fight it cause ppl know its a losing battle.
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Ah but here's the rub: the nature of copyright for individal characters varries. For example, Lara Croft. Let's face it, she's not all that iconic in appearance. She's a white chick with brown hair, she is the embodiment of generic in all except for one area under her shirt. Her appearance won't get you in trouble so you can have someone look like her, named her sort of the same, and then wink to the audience and have a competent case. Cause the copyrights protecting her appearance are "thin" copyrights. The strong ones are on Lara Croft the character. So if you tie your scenario delibearately into, say, the story of the last Tomb Raider, you could get in real trouble. Cause now you are infringing on the character.
Mario, on the other hand, is completely and totally the opposite. He HAS no personality, no character. The copyrights on Mario the character are thin, the strong copyrights are with regards to his appearance. Which is a VERY strong copyright cause his appearance is incredibly distinct and recognizable. Which means you would have to make him very different in look to Mario to have a chance.
All that said, that's the problem here: the characters in question have extremely distinct designs and distinct character to them as well. Both have pretty strong copyright protections, expecially the former. And that's what is being made and that's what Blizzard is pursuing. If the model looks like Tracer, that's really all it takes. Cause Tracer has a very distinct, recognizable, copyrighted design. Lara Craft's design, while undoubtedly is copyrighted technically, has very thin protection.
Also, drawn porn has some enhanced protection due to its transformative nature. However, that's not a wholesale win. The design is the copyrighted portion here as well as the character. If the character in, say, a pornographic graphic novel looks just like Tracer and acts just like Tracer and is called "Tracer," it doesn't matter that it's drawn. That is infringement and it could be pursued and Blizzard would win. Even if the name is changed to, say, Tracker, it won't work because the DESIGN is too distinct.
As for laws and copyright with regards to fan art, please, watch the video. It's a copyright law veteran brought in by DeviantArt to explain it to fan artists. It will explain all of thisin more detail and better detail than I. Most fanart is copyright infringement of some kind. It exists and is widely distributed unhindered and is permitted to because A) it is impractical to pursue them all, B) most creators quite welcome fan-generated postive exposure, and C) many companies just do not care. Most companies don't pursue it very far even when they do because while they can win, it would just generate bad publicity and cost money. It's easier to just chase it enough to seclude it away on the shadowy corners of the internet where 90% of people will never see it.
As for the wisdom of their actions, you would be shocked what they COULD get done if they were willing to go all in with whatever resources it takes. They could probably easily chase this material off of all "respectable" sites and push it all the way to just the edgy sites willing to risk a massive lawsuit being shoved up their rear. However, they won't. Because they don't really care that it exists as much as they care that it stays secluded.
