Basic questions concerning copyright in art

[Shinryu]

Hi all,

I'm a UK-based aspiring artist who is completely new to all aspects of copyright law, so forgive me if I sound a iittle clueless or stupid.

I'm an avid gamer and artist, and I've always made a habit of including characters and locations from various forms of media: video games, films, TV shows, etc. Up until now this has only been for my own personal enjoyment, but I've been touching upon the idea of selling my art online as an extra source of income, as I've seen countless other members of the gaming community do also.

Because of the thousands upon thousands of artists online who sell works featuring other companies' characters and names and designs, I assumed that copyright law was a bit lax otherwise there wouldn't be so many independent artists making a profit off of these copyrighted IP. However a quick consultation on an artist's forum informed me that I do in fact need a licence to sell works featuring companies' IP or risk being done for infringement.

I reached out to Nintendo, one of the companies whose games I often look to for artistic inspiration, and they quickly sent me a stock answer which didn't seem to shed much light on the matter:

Thank you very much for your email.

Unfortunately, we are very sorry to inform you, that we are not able to grant your request to use Nintendo properties.

As we receive thousands of requests of this nature on a daily basis, we regret that we do not have sufficient resources to review them all. Therefore, our general policy is to decline any queries, requesting permission for the use of Nintendo properties.

Although we are not able to grant permission, the use of Nintendo's properties without formal permission by Nintendo, may still be allowed under the relevant laws of the particular jurisdiction involved.

We would therefore encourage you to seek the opinion of your own legal counsel, if you have any questions about whether your particular proposed use is permitted without Nintendo's authorization.

Please accept our sincerest apologies for any inconvenience caused on this matter and if you have any further questions or queries, please do not hesitate to contact us.

Kind regards,

Benjamin Parker
Your Nintendo UK Team

I understand that for the most part they have to deny requests without question, but the fifth and sixth paragraphs intriguingly seem to indicate to some wriggle space on the matter. So my questions:

Am I allowed to use characters, designs and names from companies such as Nintendo in my artwork and sell it online? If not, then how are thousands of artists online getting away with doing precisely this? And what are the ramifications, if any of going ahead with selling this type of art which infringes copyright?

Just to clarify: my art isn't a direct copy or a reproduction of existing works - they are for all intents and purposes, original pieces of art which also feature recognisable locations and characters from popular culture and also more prominently, the names of locations and also recognisable logos used in the fictional universes I reference (can't post urls but if you google image Justin Van Genderen, that's kinda similar to what I do).

Some help on the matter would be greatly appreciated.

Many thanks.

[AndyJ]

Hi Shinryu,
The artwork within a game is subject to copyright, and that would include the likeness of individual characters, and to a lesser extent some background scenery where it was particularly recognisable/identifiable to the game. The law says that copying a substantial part of a protected work would amount to copyright infringement. There is a certain amount of room for doubt over what might or might not be considered a substantial part. General background scenery alone probably wouldn't be protected, but most major characters probably would.
Names of the characters probably aren't protectable with copyright because names alone seldom qualify, as they are judged to be 'facts', but some may be protected by being registered as trade marks (as for instance with this rather banal example: Supermario).
Both words and images can be registered as trade marks and you should definitely avoid using them if they are registered, as there is a high likelihood that Nintendo or other games companies could successfully sue you in order to protect their brands.
Conversely, it is possible that the fact that there are so many other examples of artwork of this sort could be due to Nintendo tolerating a certain amount of 'fanfiction' type adulation of their games because it helps to promote awareness and popularity - a sort of unofficial advertising for the game itself. This might also account for the fairly relaxed statement from Nintendo. They don't want to give you explicit permission because that could limit their ability to sue others who are copying the game itself, but they may be hinting that low level adaptations of their artwork is OK.
Returning to the law, there isn't much in UK law to support straightforward copying of the sort you wish to do, but creating art which is influenced by another work is generally less of a problem. So the less specific or detailed you are in your depictions, and the more you add of your own original creativity, the better your position becomes. A second possible defence would be that of parody, but from the sound of things that doesn't describe your kind of art, since there would need to be a moderate degree of poking fun or satire involved for this defence to succeed.
Possibly the best approach would be to try selling a small quantity of your artwork via a popular outlet (Deviantart or whatever) and wait for a reaction. The most likely response from Nintendo, assuming that they object at all, would be a cease and desist letter. And if this happens and you do cease selling the works complained about, that should be all the hassle you get. I very much doubt that Nintendo would wish to take matters further because of the possibility of bad publicity which might alienate some fans of the game, and because apart from stopping you from selling more artwork, the only thing a court case might bring them would be an award of damages based on the amount of your sales. If you had only made a few pounds, this would not be an economic course of action.
This approach is not entirely risk free, and it might get your account with the website closed down, but I think it might be the best way to test the water.