Graphic Artist Copies Wayne Reynolds art for Rush Limbaugh newsletter

[prosfilaes]

However, I still think it's an unrealistic way to evaluate it. Whether the attribute one is judging it on is funniness or just recognition, where do you set the threshold...?

Intent. Was it intended to be recognized? Compared to derivative work, that's crystal clear.

 

[El Mahdi]

Intent. Was it intended to be recognized? Compared to derivative work, that's crystal clear.

Whether it's recognized or not is not proof of "intent" to be recognized...

 

[prosfilaes]

Whether it's recognized or not is not proof of "intent" to be recognized...

And? This is a civil issue; we don't need proof, we need predominance of evidence. It would be up to the defense to argue that they intended something to be a reference.

 

[Dannyalcatraz]

Terminology quibble: in both criminal & civil cases, "proof" is required.

"Preponderance of evidence" is the standard of proof-required in a civil case.

"Beyond a reasonable doubt" would be the standard of proof in a criminal case.

 

[S'mon]

I think the Dragon Magazine parody of American Gothic (though I haven't seen it, only read about it here) is okay because it's parodying the subject specifically (i.e.: American Gothic). However, the manner in which the Rush Limbaugh Newsletter is using that photo isn't parodying D&D, that monster, or anything associated with RPG's. Instead, it's using the picture to show Rush Limbaugh as a lone warrior bravely facing off against a representation of Barack Obama's administration and/or election campaign...in other words parodying Barack Obama as a gigantic monster, and has nothing to do with D&D, the specific monster, or RPG's in general.

That's not a legitimate use of parody.

If I were the respondent's lawyer, I would argue that the image is clearly parodying (satirising?) the fantasy-heroic genre, of which the rat monster image is a part, in order to make a broader point against tax rises, and that this commentary is protected Fair Use.

 

[tomBitonti]

Something else ... in cases like the American Gothic satires (search google images for "American Gothic Satire", for example:

Google Image Result for http://johntebeau.files.wordpress.com/2010/10/american-gothic-parody.gif

As one of the tame ones.)

In these cases, the satire, while clearly based on the original American Gothic, are in no ways entire reproductions.

The Wayne Reynold's art seems to be reused to a very great degree. How much does that matter? It's not like the artist created a new original artwork based on the Reynold's art. The new work uses an almost identical tracing of the original, with a new shading.

TomB

 

[Dannyalcatraz]

It is one factor in the determination.

 

[prosfilaes]

If I were the respondent's lawyer, I would argue that the image is clearly parodying (satirising?) the fantasy-heroic genre, of which the rat monster image is a part, in order to make a broader point against tax rises, and that this commentary is protected Fair Use.

Except that you're exceeding the fair use bounds by taking more than you needed to; you could have made the point as to the generic fantasy-heroic genre without copying anything at all, and you could have made a parody of this creature without tracing it.

 

[diaglo]

I realize this edges into politics,...

so why go there?

reported

 

[tomBitonti]

Except that you're exceeding the fair use bounds by taking more than you needed to; you could have made the point as to the generic fantasy-heroic genre without copying anything at all, and you could have made a parody of this creature without tracing it.

Close to what I've been wondering. Is parody/satire so strong of a factor that the other factors no longer matter?

Also, does the question of whether the copying was necessary arise as a question before the usual factors (type of use, amount of use, question of commercial nature of use; I'm only remembering these vaguely) should be considered? If the answer is clearly yes, that (to me) seems to override the factors.

And, does the question of attribution matter, and how does that affect the issue? That is, there seem (maybe) to be two questions: Whether the use is fair use, and whether proper attribution was made.

TomB