Social Media and CC Licensing on copyrighted names or images

Question

I am wishing to make an app that targets a specific fan community for a game by Nintendo. I am trying my best to avoid copyright and trademark issues. Here are my questions:

1) Images I am using do resemble their characters, but it is coming from an art community (not Nintendo) that has a CC license on their art and openly allow people to use their art. Is this some form of inheritance that I am legally allowed to use those images resembling those Nintendo characters?

2) I wish to use a title for the icons that name the character. So, there will be text using the character's name alongside that image. Am I allowed to use their names in reference to the image? What if it has the little trademark or copyright symbol next to it?

3) Assuming any or both of the above does violate the use of their content, I am willing to just leave a text box and image attachment option for the user to add information in their posts. The post would most likely encourage the users to put a character's name and some kind of image from the gameplay (typically a screenshot of the game). The app would not use content itself, but would encourage users to upload their own screenshots and tagging a character's name.

These social media posts will be designed to disappear after a short time limit. The posts will also temporarily sit on a database that the app uses in order to share the information.

Lastly, I am hoping to place a banner ad on some pages. If this, with any of the options above will violate something, could I use a donation page safely to support further development?

Answer 1

Those characters and their names are trademarks, owned by Nintendo. The characters (as art) are also copyrighted. If you have someone creating unauthorized derivative works (fan art), you don't get "better" rights than they do (which is approximately none). There are companies that do not object to fan art until they see it being used to generate a separate revenue stream from which they derive no benefit.

The copyright symbol is generally irrelevant for works in the USA published after 1989. All creative works of original authorship are copyrighted by rule, unless specifically exempt (e.g., works of the US government). The use of © (circle-C), date, name, (copyright notice) does serve to nail home the concept that there is no longer any "unintentional infringement".

In contrast, the trademark symbol (tm) or registered symbol ® (circle-R) are somewhat more relevant because they "prove" that you "knew or should have known" that the brands were proprietary and not for your unauthorized re-use. It only really matters when your use creates a "likelihood of confusion", which is probably a certainty when used with anything related to Nintendo's products.