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You might be understanding "fair use" wrong... AFAIK it means you use it as a kind of parody, and it needs to be linked quite closely to the original (you need to be making fun of mario, not use mario to make fun of something else).
While fair use is most often talked about with parody, it does not necessarily mean fair use is only about parody.
Fair use is the ability to use a copyrighted material in an original work without getting the owner's permission in certain circumstances.
This is actually a grey area.Using a Chewbacca image in a game basically fails all the prongs. It's purpose is entirely commercial (you have it as part of your game for decoration,not as a news commentary or educational tutorial about how the star wars universe is being marketed, or similar). Second, the nature of the work is entirely unrelated to your product; the use is entirely gratuitous. It is not like a scenes a faire, a stock item that needs to be included, you threw it in because it added value. Third, you used the entire work, the entire poster. You didn't have the bare minimum, you took it all. And fourth, the effect of the potential market is big. Star Wars makes the bulk of its money on merchandising and branding. Most businesses pay for it. I recently read it is somewhere around 4 billion dollars annually. You did not pay. If everyone used it like that, the damages would be billions of dollars per year.
Whether something accidentally appears or not is not a valid defense...Having someone happen to drive by while doing street photography is radically different than a game. Every item in a game is explicitly added to the game as a conscious decision.
Game objects are not created by accident. An extra at a movie set may happen to accidentally expose an alligator logo on his shirt that wasn't supposed to show. In a game the logo only appears because a texture artist intentionally drew it there. In no way can it accidentally appear. In no way can a game creator claim it happened to be on site and was not added for its value.
If it was added to the game it was only done for its value. It might be commercial value or perhaps comedic value, somebody put it in to get some value from it.
but the right thing to do is to resist such oppressive nonsense.
What about in a book where I deliberately choose to use the brand "Mercedes" when describing the protagonist's car, to create an instant visual scene for the reader?
Your problem here would be Trademark infringement and not copy-write. It also depends on how the characters use the Mercedes.
If you say "Hodgman drove to work in his new Mercedes" then fine no problem you have identified Mercedes as a popular brand of car being used for the purpose it was intended.
If you said "Being a rich asshole Hodgman owned a Mercedes and ran every light in town". Then yes Mercedes could sue you for Trademark Defamation or Tarnishment.
If you implied that all cars were called Mercedes you could be sued for Trademark dilution. OK Mercedes isn't a likely candidate here but there are others like Hoover. So it would be more likely if you put "Hodgeman hoovered his living room" the potentially Hoover could sue you for Trademark Dilution.
So it is the same with guns. The first thing that people think of with a virtual 3D gun in a video game is that you are going to use that virtual gun to shoot a virtual human being. It is entirely possible that given all the anti gun sentiment in the US at the moment that Bushmaster for example would absolutely sue your ass if you tried to show one of their AR15s used in as anything other than a game hunting weapon.
Its also worth pointing out that in the film "Slum Dog Millionaire" Danny Boyle was forced to digitally remove any Mercedes badges because Mercedes Benz objected to seeing their luxury cars in a Bombay Slum setting.
Nope. Trademark is an anti counterfeiting and consumer protection law. It exists to protect consumers from accidentally buying the wrong product. A consumer cannot accidentally buy a book when they actually meant to buy a car.Your problem here would be Trademark infringement and not copy-write. It also depends on how the characters use the Mercedes.
Nope. Trademark is an anti counterfeiting and consumer protection law. It exists to protect consumers from accidentally buying the wrong product. A consumer cannot accidentally buy a book when they actually meant to buy a car.Your problem here would be Trademark infringement and not copy-write. It also depends on how the characters use the Mercedes.
That is the simple term. Owning a Trademark however is far more reaching than that. You are referring to Trademark Infringement protection but, like I pointed out once you own a Trademark then the Trademark is also protected against Trademark Defamation and Trademark Dilution.
You couldn't really Infringe a trademark in a fictional book but, you can quite easily Tarnish or Dilute it and for this get yourself sued.
This is also the method that hotel owners have managed to sue posters on Trip Advisor in the past. They can't sue everybody just for leaving a bad review but if they mention the name of the hotel in the actual review then they can and have sued and won damages for Trademark Defamation.
