Redistribution of fan art that used copyrighted assets as a reference in the US

Question

(In the context of United States law)

Basically I plan to rip model files from legally-obtained video game ROMs and then use those models as references for fan art (high-poly remodels of characters, vehicles, etc.)

My first question is if it's legal (ripping assets for personal use without redistributing/sharing them). If so, is it also legal if I download illegally redistributed model files and use them for the same purpose? Obviously redistributing is illegal, but is consuming?

I also want to state that I have always assumed distributing fan art is legal, even if I did use copyrighted assets as references and even if they are trademarked (I see it everywhere in drawings, etc., so long as I don't use it for profit or any other personal gain...?) If someone could definitively clear that up for me, that'd be great.

(Also a possibly related question, though I understand if it should be separate, but would uploading full renders of ripped models to a website be legal, as long as it's not the model itself?)

Thanks.

Answer 1

Creating copies of a work is generally illegal, since the right "to reproduce the copyrighted work in copies" and the right "to prepare derivative works based upon the copyrighted work" are both exclusive rights of the copyright holder. If you don't distribute those copies, though, it could be quite difficult for the copyright holder to know anything about it. Whether you acquired the original work legally or illegally has no bearing on the legality of making copies and derivatives.

Fan art is generally prima facie copyright infringement, since it creates a derivative work without permission from the copyright holder. However, it may be permissible under fair use -- but remember that "permissible under fair use" means that when you are being sued, you may be able to convince a judge that your use is fair, despite being prima facie copyright infringement. It is possible that a particular fan work could be sufficiently transformative and well-aligned with the four fair use factors to qualify as fair use, but there's no way to know until it is the subject of legal action and a judge assesses the case.

You see fan art everywhere, despite its unfavorable legal status, because in general, it is not worth the trouble for artists, authors, and corporations to pursue legal action. They will probably see no tangible benefit to justify their legal expenses, since, unlike verbatim copying of their works, fan art does not typically impact their profits. Furthermore it could be harmful to their reputation to be aggressively litigious against their own fans.

Trademark is only relevant if you are using the mark in commerce to identify the source of goods or services. I'm not a lawyer, so I'm not well equipped to discuss whether your use of a well-known trademarked character would automatically constitute trademark infringement because a reasonable person would assume that your fan art's use of the trademarked character was licensed and approved by the trademark holder.