tropesvswomenHere’s an interesting conundrum concerning fair use of Internet artwork. It all started when an artist going by the moniker Cowkitty created some fan art of Princess Daphne, a character from Don Bluth’s Dragon’s Lair video game.

Some time later, feminist media critic Anita Sarkeesian crowdfunded a series of YouTube videos called Tropes vs. Women in Video Games. And promotional material used for the $150,000 Kickstarter campaign, which collected a number of female characters from video games, made use of Cowkitty’s fan art without asking permission. (The video series allegedly made use of footage from various YouTube “Let’s Play” videos without asking permission, too.)

The artwork is fan art, and hence an unauthorized derivative work of a copyrighted/trademarked character, Nonetheless, though she doesn’t own the copyright to the character itself (and could, theoretically, be sued for copyright violation by Bluth for it, though most IP owners tend to let not-for-profit fan art slide), she does own the copyright in her particular interpretation of the character, and has the same rights to it as any other copyright holder does.

After asking advice on how to deal with it, Cowkitty sent a letter to Sarkeesian. After failing to get a response, she posted the letter openly and asked fans to help boost the signal. After that, she finally got a response from Sarkeesian, claiming that it’s a fair use and that the project is non-profit.

Cowkitty says she’s engaged in discussion with Sarkeesian, requesting proof of the non-profit status so she can determine whether it’s a fair use.

The thing that interests me is that no matter whether it’s a non-profit or not, neither she nor Sarkeesian (nor Sarkeesian’s producer, whose twitter comment Cowkitty quotes in her latter post) can truly decide whether it’s a fair use or not. I’m not a lawyer, but as I understand it fair use is a defense against copyright violation and must be decided on a case-by-case basis. No layperson can simply look at something and say, “That’s definitely fair use.” Which means that the only way whether it’s really fair use could be determined would be for Cowkitty to bring suit against Sarkeesian, and a judge to sort it out. Which, given that no actual money is involved on Cowkitty’s part, seems fairly unlikely.

The most positive outcome I see coming out of this for Cowkitty would be for Sarkeesian to stop using that particular image in her project. Even if she doesn’t, Cowkitty’s probably not going to be able to afford to litigate over it as a matter of principle. For that matter, even if Sarkeesian can’t prove her organization’s non-profit status, a court might very well find her use of the image to be fair regardless. Even large commercial operations (such as Google Books’s wholesale scanning of library books) have been found to be fair use, after all, and so has thumbnailing and reduced-size use of images. (Like the use of images this blog makes in most articles.)

Hopefully Cowkitty and Sarkeesian can come to some mutually agreeable arrangement, but even if they can’t I suspect there may be little Cowkitty can do save for blackening Sarkeesian’s eye in the court of public opinion.