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I want to use a photo of a cosplayer in my game. According to the Unsplash license, the photo is free to use commercially. But the character cosplayed is a property of Marvel.

I will edit this photo (add brush strokes to simulate watercolor) and I won’t use the character from it anywhere besides the only screen with this edited photo.

Is this a fair use or there are going to be issues with it?

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A CC0 license granted by party A only waives their rights, and not those of unrelated party B (i.e. Marvel).

And while Marvel might have granted the cosplayer a limited right to depict their persona's, that almost certainly does not constitute a sublicensable right. This is especially the case if the rights are implicitly granted (by Marvel not acting).

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Only if you were to use the image to replicate a competing service would you be in violation of Unsplash's license. If the image itself is licensed under CC0, which, for the record, appears to not be the case, you don't even need to worry about that minimal provision. Fair use doesn't even factor in to this situation at first glance.

Someone more capable of thought than me will have to inform us on the general legality of asserting copyright on photographs of cosplays of protected characters, but I would speculate that the rights would fall to the photographer, not the character's rightsholder, and thus you would be in the clear there. I am, however, markedly less sure.

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Got an answer from Unsplash:

The Unsplash License allows a photographer to relinquish their rights to a photo, but it doesn’t necessarily mean that the user of the photo can use it for anything. Similar to a photo found on any other stock photography site, laws can still affect the usage of the photo, like trademark, copyright and privacy rights.

While the Unsplash License allows consumers to download photos for both commercial and personal use, trademark and copyright infringement are separate issues. So while photos can be downloaded for free, photos with brands, trademarks, and people's faces in them have the additional aspect of trademark, copyright and privacy infringement.

Hopefully this helps:

  • Trademarks / Brand photos: if a photo has a brand or trademark in it (ex: Star Wars), you can use the photos for personal use (ex: printing the photo to hand on your wall), but when using the photo for commercial use, it's important not to insinuate that the brand / trademark is endorsing or taking part of the thing that you're advertising. If the brand can make the case that the photo insinuates that they are part of the commercial message you're trying to reveal, that's where you can fall offside.

  • People's faces / celebrities: Photos that have people's faces that are recognizable in the photos can be used for personal use and commercial use (as long the photo isn't endorsing any negativity that could harm that person). However, photos that have celebrities in it would not be recommended for commercial use, since typically celebrities have additional privacy rights that don't allow any company to profit off of their image. However, in both cases, these photos can be used for personal use.

While photographers agree that photos they upload on Unsplash have model releases, there is no reasonable way for us to monitor all photos that get uploaded to Unsplash. We cannot make any guarantees, therefore we recommend when using a photo containing a person, that you should not imply endorsement by the person in the photo.

We recommend reaching out to the photographer to clarify whether they have a model release, which you can do directly via the 'message' button on the photographers profile.

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