>>16439
>>19765
>Fan art is transformative work
That's for the courts to decide. In the U.S., for nearly all cases of "fair use", you're effectively guilty
until proven innocent. Let's look up what the law is and do a soft run of this concept:
https://infogalactic.com/info/Fair_use#U.S._fair_use_factors
>In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:
<the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
Fidchell is obvious using TPC's property to profit off of it, and has zero interest in publishing educational works.
<the nature of the copyrighted work;
Fidchell is using characters and concepts that belong to TPC to publish porn.
<the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
Fidchell can obviously put out original content, as his
Pokemon series is not his only publication, so he doesn't "need" to infringe upon the copyrighted works belonging to TPC for the purposes of his business.
<the effect of the use upon the potential market for or value of the copyrighted work.
Fidchell is using the characters for pornographic purposes, which TPC wouldn't take too kindly to since the entire marketing of their company is focused upon making family-friendly video games and merchandise of children, which means that the creation of his works would warrant a C&D/DMCA because TPC doesn't want people searching for pictures of the popular characters and finding porn of it.
So, to sum it all up, Fidchell is using characters and concepts that belong TPC for his own personal gain, to publish original works, for a profit, that are completely at odds with the image TPC wants to market. Just about
any "fair and reasonable" judge will look at those facts and declare that Fidchell's art does not earn "Fair Use" protection. It doesn't matter whether or not you agree with those circumstances or not. Those are the facts,
and that is the law.
Now, of course, the question becomes, "
If Fidchell is violating the copyright of TPC, then why don't they send a notice about it to him and all the other fanworks?" To which the answer is that the companies see it as more profitable to see public attention and participation surrounding their properties (Often referred to as "largess"),
but they can always change their mind. Copyright, unlike trademarks and patents, is
never revoked for lack of enforcement. The person who has the copyright always has access to the resource of sending a C&D and/or a DMCA whenever they want against whoever they want.
<In fact, if you want to here an actual lawyer give a legal analysis of this kind of situation, one of the people I advise listening to is HoegLaw: https://utreon.com/v/0j02Llgrwm4
In dozens of his videos, he keeps having to pound into people's heads that much of what people take for granted (Let's Plays, fan art, OC stories, cosplay, game mods, etc.) all have a constant "sword of Damocles" hanging over them, that can (And eventually
will) come down at some undetermined time in the future.