If I am sure that I have an argument for fair use, can I use shadowed silhouettes of copyright or trademark characters on the cover of my book? [closed]

Question

I have a very specific idea for a book cover that involves using shadow silhouettes of copyrighted/trademarked characters. It is a non-fiction book about character arcs. The title and cover of the book will be parodies of "The Good, The Bad, and The Ugly." The idea for the cover is to have a character to match each of the three arcs that I will be referencing in the book. I believe that using well-known, modern characters will allow my readers to understand what my book is about at a quick glance.

I have not gotten real legal advice, but I have delved pretty deep with ChatGPT, and from my research, I am absolutely sure I can argue fair use. The silhouettes will be shadows of easily recognizable characters. They would have a clear educational purpose on the cover. Each silhouette represents an arc type and I will be referencing them inside the book. I do not believe I would be infringing on the owner's markets. I will not be selling my book as a product of the characters. I will also be sure to attribute the characters to each of their owners inside the book.

Every piece of advice I am getting from friends and colleagues is to not bother, even if I am 100% sure that I can argue fair use because platforms like Amazon don't care if you can argue fair use and can decide to remove my book. What bothers me about this is that the fair use law is in place to protect people like me who are doing the right thing, but it seems professionals in my field believe that the law wouldn't help me, and my book could be removed from all platforms even if I respond promptly to complaints with a solid argument for fair use.

Would it be worth it to just go ahead with my plan of using copyrighted/trademarked silhouettes, or should I use public domain characters that will ultimately lead to fewer people understanding my book at a glance due to characters not being recognizable as they fall out of pop culture?

Edit: I have left out information about the title and book cover to protect my idea. I am not asking anyone if they think I have an argument for fair use. I am sure that I do. I alone have the full context of the situation. I was merely asking why people are so resistant to the idea of going for it even though (with the correct context in mind) I am very confident I can make a case. I have found my answer, but I have also done research that is telling me the opposite. I was going to seek legal advice regardless, but I thought this would be a good place to get more information before I move forward. Instead, 99% of the answers were trying to prove me wrong without full context and ignored what I was trying to ask.

Answer 1

Publishers likely don't want the headache

In addition to what others have said, the publisher or platform would likely incur some risk of a copyright infringement lawsuit by distributing the book--it doesn't matter if you'd win or lose, because it'd still cost the publisher money.

Even if you're willing to fight that fight, publishers are likely to be much less excited.

Answer 2

I submit that you're asking the wrong question.

Consider this: "How confident am I in my fair usage case that I'm willing to risk someone requiring me to pay to argue it via litigation, AND how confident am I that I'll win?"

To answer these questions you need the advice of someone who actually practices IP law in your jurisdiction.

Answer 3

You don’t get to decide if it’s fair use

The judge does when you get sued

It is impossible to say in advance if something is fair use or not; all anyone can do is make an assessment that the court may or may not agree with. You can certainly argue fair use and I can argue the world is flat; our arguments are not definitive.

Fair use requires a balancing test over four factors:

1. the purpose and character of your use
2. the nature of the copyrighted work
3. the amount and substantiality of the portion taken, and
4. the effect of the use upon the potential market.

As described, my assessment, for what it’s worth, is this is unlikely to be fair use: there is nothing substantially transformative in your use (factor 1), you are copying an artistic work your book is not about that work per see (factor 2), and you are copying all of the original work (silhouettes notwithstanding) (factor 3). The effect on the market is likely to be neutral (factor 4) so this neither helps nor hinders the fair use claim.

Can you afford to win or, more importantly, lose a lawsuit

A copyright owner can choose to challenge an infringement or not. A trademark owner has no such discretion, trademarks must be defended or there is the risk that they are lost. Xerox, escalator, and linoleum were all once trademarks that their owners didn’t adequately defend. Disney don’t jump all over infringers because they want to (necessarily), they do it because they have to else the mouse might leave the house.

So, when the cease and desist letter, or worse, letter of demand comes in - do you have to money to fight the lawsuit? And the appeal? And the appeal from the appeal? That’s 5 years of your life and tens of thousands of dollars. If you win. If you lose, it’s hundreds of thousands.

Amazon is not your friend

They have tens of thousands of authors on their platform who aren’t tied up in lawsuits over their book. They don’t have to carry your controversial title. So they won’t.

ChatGPT lies to you

ChatGPT is a prediction engine: lies are just as likely as factual statements when all you are doing is predicting the next most likely word. If Chat GPT says “You own a cat”, while that is a perfectly sensible sentence, unless it knows about your pet ownership status (which it doesn’t and can’t) the sentence may be right or wrong.