It seems that it is often understood that copyrighted works can be used as parodies or satire. In some cases derivative works clearly match this definition, in others it can be difficult to tell. I understand this difficult may be opinionated so I have provide the following major concerns.

Is there any difference in fair use copyright law between using the following:
1. Copyrighted image of a copyrighted character
2. Own image of a copyrighted character

I have seen many videos on YouTube with people playing with copyrighted character toys often with a story. They often have huge view counts and seem to be operated as a business so I assume the content is monetized.
Is this protected under fair use, and if it is then why could someone not copy a copyrighted anime and change only the story under fair use?

※I understand laws vary by country, and are often determined more by case results so answers based on common treaties/laws and case results preferred.

  • What do you mean by "an upper boundary" and how is this limit relevant to whether a copyrighted image is the means by which copyright is violated? – Nij Aug 19 '17 at 3:39
  • @Nij "an upper boundary" - The boundary represents the minimum use of copyrighted material where in law or a case would be seen as infringing(Ex. using a copyright character instead of using an entire copyrighted animation). The relevance of "a copyrighted image" is to clarify the following paragraph about videos on YouTube because the difference would be being able to copy the actual drawn characters vs having to draw your own versions of the characters. – Damien Golding Aug 19 '17 at 3:54
  • Then this question is trivially pointless. Any use of copyrighted material is a violation of copyright. Any image of a copyrighted character is copyrighted, and making a new drawing of a copyrighted character is itself a violation of copyright, as a derivative work. Fair use is a defence against violations, not something that makes the violation not exist. – Nij Aug 19 '17 at 4:28
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    @Nij I do not understand what you are trying to suggest. I do not mention violation, this question is clearly about fair use. The only area where I can see a possibility for confusion is my use of "infringing" so I will add to that. - Update(I can not seem to update so I will describe here: "be seen as infringing" => not be protected by fair use. ) – Damien Golding Aug 19 '17 at 5:22
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    @Nij I do not understand what your sentence implies. Do you mean fair use should not be relied on? – Damien Golding Aug 19 '17 at 7:27

There is no good answer to your question. The fair use defense is infinitely context dependent and your question certainly doesn't provide a rich enough understanding of the facts and the context to answer it. It is a mixed question of fact and law that has to be determined on a case by case basis.

Moreover, in the grey area close cases (and the grey area is quite large) a particular fact pattern could easily be resolved either way by different fact finders, even if there is absolutely no dispute regarding the facts of the case.

There are many factors that go into a fair use determination and none of them are controlling in the usual case. Instead, a holistic consideration of all of the facts and circumstances is made by a finder of fact using their best judgment.

There is no bright line that you can go up to and be legal, and cross and be illegal. Instead, the further you get away from heartland easy fair use cases without actually being in a situation that is obviously not fair use, the more risk you face if push comes to shove and there is litigation.

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  • In other words copyright is illegal regardless of fair use and fair use allows for permission regardless of violation, but the definition of fair use is vague and so will be determined on a case by case basis by looking at all the facts and determining in a more complex way? Does this mean fair use should be avoided? It almost seems half of YouTube is based on using fair use as a way to use copyrighted material and I really can not distinguish between what is fair use and not. – Damien Golding Aug 19 '17 at 7:22
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    @DamienGolding First of all, plenty of content on YouTube is blatantly infringing and remains up only because the copyright holders choose not to devote all of their effort to policing infringement on YouTube. Second, far more of what is on YouTube is claimed fair use and it is very hard to know on its face what would and would not be found to be fair use if it was litigated - your difficulty in distinguishing isn't just you, it is inherently uncertain. The safer course is always to obtain permission especially if it is very important that it not be infringing. – ohwilleke Aug 20 '17 at 21:11
  • Thank you that answers my question. I thought there was such thing as a void for vagueness doctrine :/. – Damien Golding Aug 21 '17 at 1:45

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