xdarkskylordx t1_j25s723 wrote on December 29, 2022 at 9:31 PM

Since its Nintendo specifically, there's a high chance of getting a cease and desist regardless. You probably could claim its a parody, but Nintendo is big enough that even if they decide to sue you and you win, you'll get hit hard.

dustyfaxman t1_j26ql49 wrote on December 30, 2022 at 1:29 AM

Not just that, but if it does go to court it'll be joeshmo and whatever level of lawyer they can afford vs nintendo's legions of trained ip lawyers.

You'd need to have an airtight legal arguement to even make a dent and even with that airtight arguement, nintendo can afford to drag the case out to the point where joeshmo's bankrupted by the legal fees.

AStewartR11 t1_j27nqvn wrote on December 30, 2022 at 5:53 AM

This is the right answer. Parody is absolutely protected speech under the 1st amendment (assuming you are in the US), and what you are making is obviously parody.

However, you only have the rights you can pay to defend in the US.

A close friend wrote and produced a lot of the major porn parodies (including Star Wars XXX) and even though they knew what they were doing was parody, if they got a C&D, they pulled the plug. It's not worth it to defend.

SBBurzmali t1_j2aj29a wrote on December 30, 2022 at 8:52 PM

Parody is protected speech under the 1st amendment in the same sense that you won't get tossed in jail for drawing a picture of Mario and hanging it on your wall. If you want to make Star Wars porn parodies, go right ahead, no one is going to stop you, until you start distributing copies, at which point Disney might have some disagreement as to your uses of the copyrights and/or trademarks. The copyright issue you can fight under the fair use doctrine, not the 1st amendment, and on the trademark issue you can expect to open your wallet and pay because there's no defense there, especially if you name your product Star Wars XXX.

AStewartR11 t1_j2bc7zc wrote on December 31, 2022 at 12:09 AM

I am talking about a product that was made and released. If you are an IP lawyer, you aren't a good one. First amendment rights trump copyright in the case of parody

I would encourage you to look up the lawsuit history surrounding The Wind Done Gone.

SBBurzmali t1_j2bd7ky wrote on December 31, 2022 at 12:17 AM

You don't need to be an IP lawyer to know that the 1st amendment doesn't protect breaking IP law.

AStewartR11 t1_j2bdbdr wrote on December 31, 2022 at 12:17 AM

In the case of parody, it absolutely does. It is true that the fair use doctrine comes into play as a way of deflecting copyright infringement, but it is based upon parody protections in the first amendment.

SBBurzmali t1_j2bfipo wrote on December 31, 2022 at 12:33 AM

Nothing in the 1st amendment mentions or protects parody. Fair use is from common law and predates the constitution. In the US, it is part of copyright law.