Pokémon Formally Submits to the Department of Homeland Security's Use of Ash Ketchum and Pokémon Series Theme Tune
(infosec.pub)
cross-posted from: https://quokk.au/post/297392
Literally, thank you. This is not the axe to grind with Nintendo. I don’t disagree with their stance here at all—am a lawyer. It’s absolutely fair use and would be a losing lawsuit.
Sorry to lawyer a lawyer, but this isn't likely a fair use. I'm not going to credential smash because we're all just dogs on the internet, but I do this kind of thing a lot for my job.
In short:
- a. It's promotional, where fair use defenses are weakest under the first and fourth fair use factors;
- b. it's used at best satirically and not as parody, because the target was not to comment on Pokemon but to comment on immigration or ICE's actions, which is also inherently not reliable a basis for fair use. So the first purpose/transformative use factor is even less in favor of fair use. But even that is a stretch, since the post plays like a recruitment or promotional clip;
- c. the other elements of the four-factor test are objectively against finding fair use here, since (i) the use of the clips and especially music is excessive and not narrowly tailored to any arguable transformative use, and (ii) under the recent realignment of factors in the Supreme Court's Warhol case, the transformative prong is less important and the (now greater-importance) market harm prong would be strongly against finding fair use, considering how damaging it is for Nintendo/Pokemon to be associated with this.
That's not even getting into the trademark/dilution arguments, which play out similarly.
Nintendo can do what they want, but it's a totally fair criticism that they are selectively enforcing their copyrights, and it's probably because they are scared of stepping into politics. I get it, but I certainly won't defend it.