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Imagine my goal were to openly copy copyrighted work in a perfectly legal way. Sometimes people go to court to debate whether someone copied part of a work or made it from scratch. We'll assume I copy part of a copyrighted work. I'm told by @K-C that given several conditions anyone can openly make and use modifications of a part of a copyrighted work.

Based on an answer to a previous question, Here are the conditions:

Here's my example:

insubstantial and transformative

So I take an insubstantial three pixels from a Mario Sprite, and I make a substantial transformation on the cropped pixels. This is the safest example imaginable. I refuse to believe that Nintendo could legitimately have grounds to claim copyright infringement if I take three pixels from their character and use those NINE BYTES(note) of information to make my own icon.

Now imagine I use the three slanted stripes above as the logo for my company. It seems from what I have learned so far that this informal disclaimer would do nothing at all but invite lawsuits:

The colors in my logo are from a sample of a 1985 sprite owned by Nintendo.

If I had given no such disclaimer, no one would have ever suspected that the colors in my logo were copied from a Mario sprite.

Here are my questions:

  • As soon as I make it known that a logo came from a tiny part of an image owned by someone else, is it possible that the company who owns that image would have any stronger basis for a lawsuit?

  • Would I be less legally protected making the truth public than I would be if I just deceptively allow people to assume I imagined those three colors from no identifiable source of inspiration?

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  • It's my understanding that colors can be protected.
    – user4460
    Mar 6, 2017 at 22:36
  • Footnote 0: I say the three pixels are 9 bytes since each pixel in standard RGB has 3 bytes- one byte for each of R, G, B. But actually, on the original NES where this sprite was first published, those three pixels were only 3 bytes of information since the NES used only 1 byte total for R,G, and B.
    – John Hoffer
    Mar 6, 2017 at 22:53
  • I would believe that if the derived work is so basic that it reasonably could have been created on its own I would think an action for copyright infringement would be unsuccessful. Attributing the inspiration for your derivative work to the original may be unfavorable in that it immediately garners scrutiny as to whether it was transformative enough, but I would find it immensely difficuly to argue that such an abstraction from the original would be infringing
    – Shazamo Morebucks
    Mar 7, 2017 at 0:02
  • Thanks Shazamo- I'm reading you as saying part of the legal test would involve whether someone could have created this on their own. To me this seems like a blurry line. I've played Mario a lot, so I could create a 1-up mushroom "on my own" from memories, and the result would hardly be a significant transformation from the original. I just have a really hard time accepting how copyright law is based on "The Process" rather than "The Result" when there is often no way to know the process the author used to make any given graphic... Any thoughts?
    – John Hoffer
    Mar 7, 2017 at 1:07
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    It's probably better to incorporate your footnotes into the body of your post, since comments are not searchable.
    – phoog
    Mar 8, 2017 at 5:21

1 Answer 1

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Admission of copying proves one of the elements that the plaintiffs would normally need to prove in an infringement suit, making a law suit less risky from their perspective. This may very well invite lawsuits that would otherwise not be filed. But, this is pure speculation.

Your legal rights are the same, independent of how much you choose to reveal in advance of a lawsuit. If your copying doesn't amount to a substantial taking, then it isn't infringement, whether you admit to copying or not.

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