Q: Is tracing parts of an illustration violate copyright?
I am developing a NFT collection based on animated sitcons. I know that tracing over the character image to create a new art work is illegal. But what about assets present in the character picture? Things like hats/hairs/clothes and other assets. Can I trace over this assets present in the original art work to incorporate in my own work? This assets are also protected by the copyright of the character?
A:
Your question concerns whether the proposed use of the copyrighted material is covered by the "fair use" defense to copyright infringement. Fair Use under Section 107 of the U.S. Copyright Act provides for certain cases where permission from the rights holder is not required. Courts assess whether the "fair use" defense applies based on four factors: the purpose of the use, the nature of copyrighted work, the amount of the work being used, and the effect of the use on the market for the copyrighted work. Another, more detailed statement of the factor test: (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; and (4) the effect of the use upon the potential market for, or value of, the copyrighted work.
As you can imagine, this is a fact-specific, complicated assessment. Fair use is one of the most litigated issues under the Copyright Act. There are similar cases going different ways in the same courts. Consider retaining an IP attorney to assess your legal exposure before proceeding.
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