Trading Card Database - Copyright Infringement or Fair Use?

Question

I would like to create a text-only database for collectible trading card games. The database would contain card names, ability text, flavor text, etc. Images would not be included. This project would be non-profit, open source, transformative (having been removed from the original graphic context), and non-competitive (the raw data has no use in and of itself). The purpose of the database would be integration with third-party computer applications. Uses could include documentation, product info, search, analysis, etc. Abuses could include creating proxies or replicating gameplay online.

Would a DMCA takedown request of such a database be warranted? Why or why not? Which US laws apply? Which Supreme Court rulings apply?

Game Copyright Document FL-108 by the United States Copyright Office states that "Material prepared in connection with a game may be subject to copyright if it contains a sufficient amount of literary or pictorial expression. For example, the text matter describing the rules of the game...". Does this apply to individual cards or just rule books? In most cases flavor text is expressive and original content. Referencing the Wikipedia article on Fair Use, the Text Mining and Internet Subsections seem relevant. I also read the NOLO article on Fair Use.

Hundreds of websites already contain card text and images. I suspect that most sites have not received permission to use this content. Sites are often created to generate revenue or are community-driven projects. For example:

• Trading Card Database,
• Scryfall Magic (formerly magiccards.info),
• Sets — PkmnCards,
• Category:Card Gallery | Yu-Gi-Oh! Wiki .

Answer 1

Fair Use is determined on four traditional factors:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole;
4. the effect of the use upon the potential market for or value of the copyrighted work.

A recent example analyzing Fair Use in a similar situation would be Author's Guild vs Google (which came out just before this question was asked), regarding Google Books.

Plaintiffs, authors of published books under copyright, filed suit against Google for copyright infringement. Google, acting without permission of rights holders, has made digital copies of tens of millions of books, including plaintiffs’, through its Library Project and its Google books project. The district court concluded that Google’s actions constituted fair use under 17 U.S.C. 107. On appeal, plaintiffs challenged the district court’s grant of summary judgment in favor of Google. The court concluded that: (1) Google’s unauthorized digitizing of copyright-protected works, creation of a search functionality, and display of snippets from those works are non-infringing fair uses. The purpose of the copying is highly transformative, the public display of text is limited, and the revelations do not provide a significant market substitute for the protected aspects of the originals. Google’s commercial nature and profit motivation do not justify denial of fair use. (2) Google’s provision of digitized copies to the libraries that supplied the books, on the understanding that the libraries will use the copies in a manner consistent with the copyright law, also does not constitute infringement. Nor, on this record, is Google a contributory infringer. Accordingly, the court affirmed the judgment.

Thus, in this situation, the author of such a database would have a decently strong argument for Fair Use. But, it may be easier to just get a license to use the data instead of risking court. That decision should be made while consulting an attorney.