08-28-2018, 10:39 PM
(This post was last modified: 08-28-2018, 10:41 PM by EeveeBailey.
Edit Reason: Added a thought
)
(08-28-2018, 11:19 AM)Iron Wrote: No, it does not fall under fair use. Pokemon Essentials uses Nintendo IP and they have every legal right to demand it be taken down. Fair use only applies to parody and very small selections of an IP for criticism. Even fanfiction is not legally protected.
According to the link that Mika posted though, transformative works have fallen under the category of Fair Use, particularly in several U.S. Supreme Court cases:
Quote:The first factor is "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes." To justify the use as fair, one must demonstrate how it either advances knowledge or the progress of the arts through the addition of something new.... A key consideration in recent fair use cases is the extent to which the use is transformative. In the 1994 decision Campbell v. Acuff-Rose Music Inc,[11] the U.S. Supreme Court held that when the purpose of the use is transformative, this makes the first factor more likely to favor fair use.[12] Before the Campbell decision, federal Judge Pierre Leval argued that transformativeness is central to the fair use analysis in his 1990 article, Toward a Fair Use Standard.[9] Blanch v. Koons is another example of a fair use case that focused on transformativeness. In 2006, Jeff Koons used a photograph taken by commercial photographer Andrea Blanch in a collage painting.[13] Koons appropriated a central portion of an advertisement she had been commissioned to shoot for a magazine. Koons prevailed in part because his use was found transformative under the first fair use factor.
If there's no commercial gain, just art for the sake of art -- or education, as some could argue that Pokemon Essentials would be (archiving sprites, teaching programming skills) -- such as would be the case with fanart, fanfic, and even fangames, then by the precedent set in the Supreme Court, it would be Fair Use.


