Is It Legal to Repurpose Artwork from Another Game?

As a game artist and enthusiast, the question of whether it's legal to take the concept art from another game and redraw it with some changes is a common concern. This article delves into the intricacies of copyright law and fair use to help clarify these issues.

Understanding Copyright Law Basics

US copyright law, specifically outlined in 17 USC §106, provides a framework for understanding copyright infringement. A derivative work is defined as a work that is based on a preexisting work. This can include translations, musical arrangements, dramatizations, and more. A key right that a copyright holder owns is the ability to create derivative works, which is exclusive and protected under (textbf{17 USC §106}:

The owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

to reproduce the copyrighted work in copies or phonorecords to prepare derivative works based upon the copyrighted workto distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lendingto perform the copyrighted work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual worksto display the copyrighted work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual workto perform the copyrighted work publicly by means of a digital audio transmission, in the case of sound recordings

Fair Use and the Berne Convention

Copyright law isn't limited to the US but follows international treaties such as the Berne Convention. While these treaties set the foundational principles, many nations including the US have adapted and extended these principles. The core principle of fair use (17 USC §107) allows for certain uses of copyrighted material without requiring permission from the copyright holder. However, to qualify as fair use, certain factors must be considered:

1. Purpose and Character of the Use: Uses that are commercial are less likely to be considered fair. Educational, non-commercial uses tend to hold up better.2. Nature of the Copyrighted Work: Fair use is more likely for works that are factual or less creative.3. Amount and Substantiality of the Portion Used: Using a small portion of a larger work is more likely to be considered fair. The more substantial the portion, the less likely it is to be considered fair.4. Effect on the Potential Market for the Original Work: If your use significantly impacts the market for the original work, it's less likely to be considered fair use.Note: An unpublished work can still qualify for fair use.

Practical Implications for Repurposing Artwork

The legal complexities of copyright law often require detailed analysis. If you're unsure whether your use of another game’s concept art falls under fair use, consulting a copyright law attorney is advisable. This isn't just a matter of opinion but legal advice. Here are some practical steps to consider:

Assess Your Intent: Determine whether your use of the artwork is purely for personal learning or if it has commercial implications.Evaluate the Work: Consider the nature of the original artwork (e.g., highly creative versus factual), the amount you're using, and how substantial your changes are.Consider Market Impact: Evaluate how your use might affect the original work's market. If you can demonstrate a negligible impact, your argument for fair use is stronger.Seek Permission: If possible, obtain permission from the copyright holder to use the artwork. This can add an extra layer of legitimacy to your project.Document Your Use: Keep records of your fair use analysis and the changes you’ve made to the original artwork. This can be important if legal disputes arise.

Conclusion

Reusing or repurposing artwork from another game can be a tempting shortcut, but it's crucial to navigate the complexities of copyright law carefully. Understanding the principles of derivative works and fair use can help you make informed decisions. While fair use can be a valid defense, it's wise to err on the side of caution and seek legal advice when in doubt. By doing so, you can ensure that your work stays within the bounds of legal compliance and respects the rights of the original creators.