How do I handle a copyright claim for fan art I created?
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Fair use unfortunately only covers objects if you are using them for a non-commercial purpose. Any commercial use would require licensing in order to sell, even if you created the artwork.
Have you tried to negotiate with the copyright holder?
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Should I file a counterclaim against a gaming company that filed an IP infringement and takedown of fan art that I created and sold on Etsy?
I understand your concern. Have you received a formal notice of ip infringement from the gaming company?
Yes
Can you provide more details about the fanart you created and sold on etsy, such as the specific content and how it relates to the gaming company's ip?
It's a mousepad of one of the male characters, with extra padding where his chest is to resemble pectorals. I created it in Blender which is a 3d program. The character is from a game this company owns, but the art of the character was created by me and does not mimic any merchandise that the company sells at all. I also altered the character appearance in ways that do not appear in the official game.
Is there anything else the ip attorney should know before I connect you? Rest assured they'll be able to help with your ip infringement issue.
No.
Hi there! My name is Liz and I’ve been an attorney for more than a decade, and I am here to assist with your legal concerns. So I can best help, did you ever seek any permissions to use the character?
I did not, I assumed I was covered by Fair Use.
Fair use unfortunately only covers objects if you are using them for a non-commercial purpose. Any commercial use would require licensing in order to sell, even if you created the artwork.
Have you tried to negotiate with the copyright holder?
I haven't, I don't know how to do that since it's a large company.
Most large gaming companies do have a department for licensing. Their legal department should also be noted on the DMCA takedown.
It looks like they used another company to represent them called Tracer, which is an AI brand protection company, is that who I should contact?
That can be an excellent point of contact.
Okay I can try sending an email to them asking to negotiate. Doing that won't end in litigation unless I file the counterclaim, right?
It should not, and offering to settle is also protected in court.
Are you able to provide any language or resources for how I should phrase my negotiation request?
Since this was a mistake, you could be clear that you thought it was covered under fair use, if you haven't made any sales, that can also be brought up.
Okay, thank you. I don't think I have any other questions for now.
You're very welcome.
