Thursday, September 25, 2008

Drunkduck.com Content: Copyright Theft?

In my advertising, there's this DrunkDuck.com hosted webcomic, Cru the Dwarf. Looking at it, it sure appears that they're just using screen grabs from World of Warcraft.

I'm sure Blizzard is cool about fans using images to make cartoons and all, to some extent...but they are probably less cool about people doing it on a regular basis for profit (as the page linked to is ad-supported).

It should be noted that nowhere on the page linked to is there currently any credit to Blizzard Entertainment. The only copyright line is for Sean F, which only makes the possible offense worse.

Posted by Kevin Huxford at 7:05 PM
Labels: , , ,

27 comments:

  1. As long as I don't sell the actual comic I'm breaking no laws and am well within the rights of Blizzard's Fair Use policy. People can access and view my comic for free but advertisers pay me to place their ads on my site for exposure. However you're right about giving the credit to Blizzard for copyright reasons. There is a copyright notice within my profile but there was also one included on the comic page until a recent site redesign removed the table it was in and I forgot to include it again. I shall do so shortly.
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  2. That would be a good step. But you're getting paid money to advertise on your webcomic, which means you're deriving compensation from use of someone else's copyrighted materials.

    Unlike DING!, which parodies WoW using exclusively original art made by the webcomic creator, you're using someone else's work with a few Photoshop tweaks. I believe a court of law would disagree with you on whether you're in the clear.

    "Note that Blizzard Entertainment's restriction that Productions be limited to "non commercial" uses also means that you may not license a Production you have created to another company for a fee, or any other form of compensation, without specific written permission from Blizzard Entertainment to do so. Blizzard Entertainment reserves the right to use World of Warcraft for all commercial purposes."

    Advertising seems to come close to licensing for a fee or other compensation.
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  3. If I simply had some drawing talent these disputes and others could be avoided, but since we're here then what the hell.

    For the sake of argument I'm going to disagree regarding copyright infringement. I checked your site and saw copyright-protected material (including my own comic image) but it's all protected under Fair Use because, thanks to Purpose and Character of Use, it uses these images for criticism and comment. Cru the Dwarf should also be protected under the same factor (Purpose and Character) but instead for the sake of parody and satire.

    Cru the Dwarf began as a noncommercial parody project for the entertainment of guild members within World of Warcraft as well as my own curiosity about what it takes to make a webcomic. Since it's beginning in early 2008 it has grown in popularity and now the website earns a small bit of money through advertising with Project Wonderful.

    Commercial gain does not automatically constitute unfair use since the actual use (use being the comic) is transformative and not superseding. The comic does not make the purchase of WoW unnecessary or will ever become a substitute for the game itself. There's also a degree of transformation associated with the comic for the use of parody. Cru the Dwarf adds entirely new elements to the World of Warcraft and alters the original work (not speaking of actual alteration of the game files which is against the terms of service) and adds new expression to it.

    The largest factor in Fair Use cases is the effect upon potential market or value of the copyrighted work (World of Warcraft). I doubt Cru the Dwarf will ever harm the sales of WoW and -if anything- it may attract new game customers who view the comic, enjoy it and decide to purchase the game. A remote possibility, I know, but far more likely than the comic ever harming WoW's sales. I like to think of it as free advertising for WoW (although Cru the Dwarf is not associated with Blizzard or Vivendi Universal Advertising in any way, shape or form).

    In closing judgments concerning copyright and the Fair Use dispute are situational. To quote Justice Oliver Wendell Holmes, "The life of the law has not been logic; it has been experience." They go on a case-by-case basis and nothing is set in stone. I'd like to believe that if Blizzard ever got a bug in their butt about the meager earnings of the comic and wanted to make a case about copyright infringement that the courts would rule in favor of the defendant. The defendant's case would be stronger if they also added criticism and comment about the game itself and/or illustrate how to make a screencap comic for informational purposes.
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  4. There's a difference in showing a clip to report on something and what you're doing.

    And burying the World of Warcraft copyright all the way at the bottom of the page and NOT on the product itself (like your copyright is) would certainly hurt your case and be against Blizzard's fair use policy.

    But I guess we'll just agree to disagree.
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  5. Yes, there is a difference. Like I said before, under Purpose and Character Use that both criticism/comment and parody/satire are both factors within it though completely separate from each other: You're criticism and I'm parody. It's not like every site out there doesn't put it's copyright notice clear at the bottom of their pages. As for placing it on my comics I will include a caption that says the exact same thing at the bottom of my comic pages in a tiny, nearly unreadable font below my own copyright notice.
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  6. So, you're going to purposely obscure the appearance of the WoW copyright info on the actual cartoon, while your own copyright will be practically in neon lights in comparison? I believe that speaks volumes about the situation.
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  7. I've read through Cru the Dwarf and actually enjoy it so that may make me inherently biased, but whatever.

    I know very little of copyright law, but it seems however "dishonorable" you may find his method of compliance he does indeed comply. No matter how small it may be in comparison to the "Neon light" that is his copyright and name it's really kind of irrelevant. I was always under the immpression that once you began profiting from copyrighted material it was no longer protected under fair use and thats the only place where I see you actually having a point, Mr. Huxford.

    That being said.... I do find it interesting that your last post implies a inherent integrity that he should display with his comic when you yourself chose to go after Cru the friggin' dwarf instead of say.... Flintlocke Vs. The Horde Or the original Flintlocke's Guide to Azeroth. (http://pc.gamespy.com/flintlocke-vs-the-horde/) After a cursory glance around around the pages of both comics I saw precisely no blizzard copyright notes. I would imagine they exist somewhere on the site but that's unlikely as it would be dishonest not to slap it on every comic as well as the bottom of the page, right? And you cannot tell you you honestly don't see how they are profiting from the use of copyrighted material.

    The way I see it, you're either a hypocrite, assuming that others should show integrity when you are willing to go directly after the weakest target you can, or you simply didn't do the reasearch. Wait... You found Ding! easy enough....

    That last bit was a little mean. I apologise.
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  8. Talk about your lack of research...

    In the very blog you're replying to is the explanation that the only reason I stumbled on to Cru was that he had advertised on my page. Being willing to turn a critical eye on people paying to advertise here isn't dodgy or hypocritical, IMO.

    And, if you checked Blizzard's fair use policy, they make it clear that they don't want anyone but themselves putting Blizzard property out for commercial use (which is what you're doing when you are soliciting and accepting advertising). They, also, require that you place the copyright info as close as possible to the cartoon. They do accept on the page only, if need be, but I don't think they'd accept it when the "creator" is fine with displaying "their" copyright prominently.

    Ding! came up as an example only because they've advertised on GMAIL and I clicked on a link once. Seeing Cru, I immediately wanted to check to see if there was any similar copyright issue, but I found that Scott Kurtz apparently knows better.

    So, yeah, Chronos Maas, I do believe there's some bias there.
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  9. kevin got pwnd
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  10. First of all, I object to your use of the Research line. It would have been much more poignant to use something like "Did you even READ the blog?" or something to that effect. Meh, just personal preference.

    Anyway, I wasn't accusing you of being hypocritical cause you refused to turn a blind eye to percieved illegal activity, I was calling you a hypocrite because there are other comics out there that are fairly popular, using the same machinima style and edited far less that you didn't lambast.

    That being said, looking over blizzards policy, I think you may be taking liberties with it.... Yes, commercial use is clearly prohibited, it always is, and yes, you must include all copyright notices. They do not however state that the notices must be on every piece of copyrighted material. This is generally handled by putting the copyright info at the foot of the page by pretty much everybody. They also don't claim that it should be a certain size in comparison to anything else. I guess you just vemently object to certain font types/sizes, and hey thats something we can relate on, Seriously forget the whole arial line, arial black especially.

    So, yeah. I never claimed there weren't baises, and I don't believe theres any copyright issues simply because he's not directly selling blizzard merch, I could certainly be wrong.

    This is where I get off. As a side note, Thanks for turning me on to Ding! it's surprisingly decent.

    Later.
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  11. Chronos, I'm just saying...to get scolded for not doing my research across the net to find other copyright violators by someone who didn't bother to read the whole blog they were posting on...kinda ironic.

    My point in referencing how I found out about Cru is to say that I don't go over the 'net looking for copyright infringement as some sort of crusade. I pointed this one out because he advertised on my site and I noticed some questionable practices.

    My argument on the copyright placement is this: if you have the room to put your own copyright on the cartoon (as laughable as it seems to copyright your slight photoshopping of someone else's work), then you have little argument for not putting the Blizzard copyright there, as well.

    But I'll give you that I'm quibbling when I argue about the size of the Blizzard copyright. ;)
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  12. It has indeed been explicitly stated in fair use cases that being for-profit does NOT automatically make it infringement. The reverse is also true, however.

    The key point, as has been mentioned, is the harm it does to the ability of the copyright holder to exploit their product. This is measured in part by how much of the work is used, for example. Quoting one sentence from a 200 page novel is almost certainly fine. Putting up 150 pages is probably not.

    And yes, parody in particular is one of the most protected categories of all. To the point that even substantial use of the work can be excused. Trick is it has to be parody of the work it uses elements of, and not using that work to parody something else.

    Simply put, Cru the Dwarf can never ever even come CLOSE to substantially harming World of Warcraft. Still images of models(not even real screengrabs) are such a tiny portion of the overall product that arguing that he somehow injures their ability to make a profit is not merely misleading, but downright false.

    Simple fact is, a 'fair use policy' has no meaning in a legal setting. A company simply cannot declare something in a document somewhere that is contrary to established law and magically make it true. Hell, they're limited in their ability to do so with an actual CONTRACT.

    And frankly, we've got enough problems these days with companies trying to eliminate the traditional rights of the consumer when it comes to copyrighted material. Copyright was originally intended as a two way street. We don't need guys going around making up things that just aren't true.

    Simply put, if you don't like it, or find it offensive, SAY THAT. Don't get all misleading about your motives trying to hide behind some pseudo-legalistic BS.
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  13. Why is it that you Cru the Dwarf fans think I have something personal against the comic? I didn't even know it existed until it advertised here.

    I don't find it offensive. It's sense of humor is right up my alley, actually.

    But, Tiron, even you make the case against it: it isn't parodying the actual game. It is using their property to create something else.

    And let's not go to the "corporations are screwing us over, maaaaaaaaaaaaaaaaan" route. Using someone else's work to try to make a career and name for yourself and pass it off as your creation isn't what fair use protects.

    The guy behind Cru the Dwarf has said that, if he could actually draw, he wouldn't use the photoshopped screen grabs. Someone who can't draw normally tries to find a collaborator who is a...hmmm...what's the name for it? Drawer? Funny picture maker? Wait, I got it: ARTIST. You know, like the ones that Blizzard paid to create the art he's manipulating slightly and passing off with his own copyright on it.
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  14. I dont think CtD would be half as good as it is if it were drawn. And it definately wouldnt have the appeal.
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  15. There's your problem right there Kev. According to copyright law, you actually CAN use someone else's work WITHOUT their permission in some circumstances.

    This is, of course, regardless of the fact that it IS indeed a parody of WoW...which you'd know if you actually had read it.

    I mean seriously, 'Welcome to Newbshire?' Prince being lame in the dirt? The Onyxia-driven forces of stormwind being foiled at every turn?

    Simply put if Cru isn't a parody, neither is Flintlocke, and Flintlocke not only got linked to by blizzard, but it's got less innovation OR photomanipulation than Cru. It's the EXACT same style, only Cru makes jokes and shows things Flintlocke wouldn't dare.

    Cru the Dwarf is what's known in the Copyright world as a 'Derivative work'. In such a case, Cru actually HAS copyright over the aspects of it that he created. The characters and the Storyline, primarily. Blizzard retains their copyrights over the models and art, probably even the bits he modified.

    Trick is, unauthorized derivative works CAN BE legal. As an example, Campbell v. Acuff-Rose Music, Inc, one of the landmark cases in Fair Use law. In this case, 2 Live Crew made a parody of the song "Oh, Pretty Woman". They attempted to license the original for it but their request was denied. They released the song anyway, and after nearly 250,000 copies were sold, they were sued for Infringement. The case went all the way up to the Supreme Court. 2 Live Crew one, and the work was held to be a legal, but explicitly unauthorized fair use derivative.

    The trick here is that not only is it a parody, but Cru isn't excessively making use of blizzard's work. One of the primary factors in determining fair use is economic harm... and in that area the chance that this comic could HARM Blizzard is so small as to be absurd to even mention. As mentioned, it might even help them.

    The small amount of the work used, combined with the amount of work he puts in to transform it, on top of the parody nature of it... it'd be hard not to call it fair use.

    The provision I mentioned you misinterpreted however. An example of what I was talking about would be ANY of the many Eve-Online songs that Curzon Dax has done. For example, 'Eve Online is for BOB'. He takes the music, lyrical structure, and style of an existing song and uses it in a parody of Eve Online(in that case, it's a straight rip of 'The Internet is for Porn'). In that case, his use of the song is NOT a protected parody because he's using the song to parody Eve, and not the Song, even though it IS a parody.
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  16. I don't care enough to dig through copyright stuff, but I am bored enough to say I would side with cru on this one.

    Unless he prints and sells the thing in Borders I don't think it should be a problem for anyone. There are lots of cool sites that use screen grabs and tell a story. Only if the game company were huge assholes should they try to stop fans from making fun websites for the games.
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  17. Tiron,

    I've read the arc of Cru that has been going on since Sean F advertised on my site.

    The most elements of his story arc parody something other than WoW or aren't even parody, IMO. They employ humor, certainly, but that doesn't always equal parody.

    You want to argue that it doesn't hurt the brand? In Blizzard's fair use machinima policy, they require that all video uses of their materials be of a T rating. Combining the sexual humor with the fan service images on the Cru site, I'm pretty sure they'd successfully make an argument that it hurts.

    And even argue that it helps? That helps part is hilarious. It's the cry of every fan of something possibly illegal that they don't want to see go away.
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  18. Okay, I've come to the conclusion you know nothing about what you're speaking and are simply refusing to acknowledge that.

    Cru the Dwarf CANNOT compete with World of Warcraft.

    Cru the Dwarf uses less than 1% of the game's assets.

    Cru the Dwarf DOES use elements of World of Warcraft canon. For example, One of the recurring characters in the Comic is actually present in Game, in Stormwind. Two more are the Canon PARENTS of an In-Game NPC. Three in-game bosses are also present IN THEIR CANON ROLES. Further, the major 'Villan' in Cru the Dwarf is a major Canon character, once more at least partially acting in a manner consistant with canon.

    If you actually had read the ENTIRE thing and not just from where it had started. You would've noticed that it is NOT using World of Warcraft resources to tell an unrelated story. It is, in fact, SET WITHIN THE CANON OF WORLD OF WARCRAFT. It also regularly and directly pokes fun at both the players and design of the game.

    All that, taken together, makes it a parody.

    And finally, and this is the thing you REALLY need to understand.

    Blizzard can SAY whatever they want. Legally it means NOTHING.

    They could make a policy that says you're not allowed to use their resources unless you post a video with it showing you clucking like a chicken. If you didn't and they sued you, and the work otherwise met fair use criteria, they'd lose. Hell you'd probably get a summary judgment in your favor.

    You really need to seriously look into the details of what you're talking about before you shoot your mouth off.

    I'll also add, I have indeed seen the 'blizzard owns most of this' disclaimer at the bottom of the page. But then I've been reading it for more than a week. >P
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  19. Blizzard's response to a hypothetical based on this situation has been posted in a separate blog.

    Oh, and Tiron? Comparing using a sampled baseline to stealing artwork with a bit of blurring of backgrounds.

    At least 50% of Cru The Dwarf involves using someone else's work entirely (and that's being generous). A sampled bassline, added to completely different lyrics and other accompanying music (I'm sure they had some kind of drums, scratches and other bits) is vastly different.

    Most guidance on fair use tells you to try to keep the percentage of copyright material used as close to 1% as possible and suggests you expose yourself to legal risk when you cross 20%. Some stuff can use 1% and get in trouble while some can use 100% and have no issues at all, of course...but the more you use, the more likely you are to cross the line into copyright violation.
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  20. If you think that's bad Kevin... take a hit at www.Newgrounds.com … the "copyright infringement" there is huge. I can't wait to see how you react to that place.
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  21. Ha! I'm not trying to go all over the 'net, rooting out copyright infringement wherever it occurs. I just had someone run an ad on my site for something that was an apparent copyright violation and made comment.

    If not for the "creator" of that webcomic trying to send his readers to troll, this would have just been a dead entry relegated to the September archives with little-to-no activity.
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  22. "Kevin Huxford
    Working towards my mid-thirties (...)When I'm not making an ass of myself all over the internet, I like to review comics and movies."
    you're basically combining the two. hardly a review, but it's criticism. a bit cocky to try and defend a firm like blizzard without them having asked you. it's up to blizzards own weighing of the situation whether to care or not. if you think the (illegal) use of the art is so atrocious, take it up with the art designers - though they've probably given the right to blizzard, which means they themselves have given blizzard the power of action on such matters. if you're writing because you yourself think it's injustice and should not be tolerated, maybe for the sake of principle, then go ahead and lose hair over something so trivial. but really, if they don't care, why should you? should you bring it up with them? would it be wrong to let them have ignorant bliss? might they get annoyed of the triviality? will they thank you for bringing this to light? are you arguing for the sake of argument? what were you expecting when you wrote this? what do you expect to happen now?
    "Some stuff can use 1% and get in trouble while some can use 100% and have no issues at all, of course..." why do you think that is?
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  23. Anon: Sean F placed an ad on my site for his comic. That brought me into contact with it. DrunkDuck.com is owned by Platinum Studios, a company well-known for poor business practices with print comics and other endeavors. You'll note the title of the blog focused on that site, rather than Cru the Dwarf.

    If not for the ad, I wouldn't have noticed. If not for the Platinum Studios involvement, I might not have even taken the time to comment on it via my blog.

    If I intended on narcing him out to Blizzard, I would have done that back when I posted the blog. That's why I kept link out of the question I posed to the appropriate contact at the company.

    That the guy comes here, says it isn't copyright infringement and that he's well within Blizzard's own fair use policy when that clearly isn't the case is the only reason I had anything further to say. That he tries to send his readers to pile on is why the topic has taken on a life of its own.

    The more people who come to the blog, read it, respond to it, etc., the higher the likelihood that word gets back to Blizzard, though. Once again, my opinion on the comic was posted and forgotten on September 25th, until Sean F brought it back to the front page. Not the wisest move.

    But hey...I'll enjoy the traffic while it's here. :)
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  24. See, the problem is, you don't know what copyright infringement is. You don't really know what 'fair use' is either. And on top of that, saying that it's illegal when it's not could be construed as libel.

    Fact is, if you were responsible, or gave half a damn at all, you'd ask someone that knew something about the legality of the matter, preferably a copyright lawyer, for his opinion before saying something that you could potentially be held liable for saying if it turns out not to be true.

    But most surprisingly, you only seem to know, and even more surprisingly believe, the definition of infringement that the media companies WISH was true, and like to pretend is. You know, since it's in their interest to completely remove all consumer rights so they can make everything pay-per-use with no fair use.

    Biggest thing you missed though...it doesn't matter how much of the DERIVATIVE work is previously copyrighted material. What matters is how much of the ORIGINAL work was used. Songs are a horrible example as there's very close to a 1:1 relationship when only one thing is 'sampled'. In this case, the work is an entire freaking video game with some additional material in the form of novels, comics, what have you. Models, textures, animations, storylines, characters... There's literally thousands and thousands of different pieces to it...almost all of which haven't been used at all in Cru, and some CAN'T be.

    Cru uses a VERY small part of the original work(s).

    Cannot possibly compete with the original work, and by it's non-canon nature is excessively unlikely to compete with any other Blizzard work. Combined with the unauthorized nature of it, this makes it nearly impossible for the comic to substantially affect Blizzard's ability to exploit the copyrighted material used in the Comic.

    Additionally, the comic is NOT actually made with WoW Screenshots, like the Equinox comics are. Instead model viewers are used, and the disparate elements are assembled in an image editor. On top of that, some of the things are HEAVILY modified in ways that no Blizzard material is capable of. For example: characters are given poses and expressions impossible with WoW assets. Objects and locations are modified from their pure in game forms in ways the game is not capable of. Additionally, the models themselves are modified in ways the game does not allow. This is more work than the ad-supported, blizzard endorsed 'Flintlocke's Guide to Azeroth' (the primary inspiration for Cru, according to the author himself) goes to in preparing most of their comics.

    And for the approximately sixth time: BLIZZARD POLICIES DO NOT MATTER LEGALLY. Something being against 'Blizzard Policy' CAN NOT by itself make that thing illegal.

    Also, being Commercial is only one of many factors in determining infringement. It does hurt, but is not an automatic 'OMG it's illegal'.

    What's more, if there were no ads, the comic could not exist. Something has to pay the bandwidth bills, and in fact if the case were to be taken to court the primary factor they'd consider would be the PROFIT made.

    Finally, misleading and incomplete e-mails to blizzard based on your own, incorrect, interpretation aren't valid. Especially since the blizzard rep that responded apparently thought you wanted permission to do that yourself.
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  25. Tiron,

    I'm done beating my head against your brick wall on all the other topics, but I'd LOVE to know how that e-mail was misleading.
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  26. Tiron 1 - 0 Kevin Huxford
    Ladies and gentlemen, we'll just be having a short break before second half.
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  27. So unanswered "points" will be considered scores, eh?

    1. Drunkduck.com has their own ads to pay for the bandwidth, it would seem. The Project Wonderful advertising is not likely directed to such costs.

    2. The amount of the copyrighted material in the derivative work does matter. You can rail against that all you want, but you'll still be wrong. It most certainly can come into play in a judgment.

    3.You try to use a case regarding music to make your point earlier, but as soon as this issue can be demonstrated to be a more flagrant use of copyrighted materials, music is all of a sudden not a good comparison. Hmmm.

    4. You want to dismiss the copyright holder's policy and the contract that all users of the World of Warcraft agree to electronically as having any legal weight.

    On the former, it was never brought up to demonstrate legal right or wrong. It was brought up to refute Sean F's claim that he was within Blizzard's fair use policy.

    On the latter, it's just asinine. Especially when you go on to make an argument that labeling this as copyright infringement is a move towards the abolishment of fair use altogether. That's quite a stretch.

    5. You're arguing both sides of CANON on this. Somehow a few parts being named after canon characters makes it a full-on parody, while it not being canon saves it from being copyright infringement. That's a postage-stamp small area you're working in that balances between the two.

    Making the argument that its being unauthorized is a plus in its favor is just laughable. From the fact that it uses barely retouched elements for many of its panels makes it that much more likely to give the false impression that it IS authorized. The consumer can wind up closely associating the two.

    6. Re: if it didn't have ads, it wouldn't exist

    Really? You're really trying to use that as an argument that selling advertising wouldn't be considered a factor. As you, yourself, stated earlier being for-profit doesn't automatically make it illegal to use materials and the opposite is, also, true. So, if Sean F only generated enough money from ads to break even, it doesn't make it legal. That he's using it to generate money at all off of the copyrighted materials of others is the issue.

    But, at least, I now see your basis for saying the e-mail was misleading. I still disagree, because the general idea is still the same. He's barely tweaking images culled from WoW.

    Having made it sound as if I was planning on doing it doesn't swing it one way or the other. It appears as though you'd only have been satisfied with the question if I got the exact details of the process from Sean or if I just directed them to his site. That's just not a reasonable expectation, given the circumstances.
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