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Pokémon Formally Submits to the Department of Homeland Security's Use of Ash Ketchum and Pokémon Series Theme Tune (infosec.pub)

submitted 5 days ago by CubitOom@infosec.pub to c/nintendo@lemmy.world

65 comments fedilink hide all child comments

cross-posted from: https://quokk.au/post/297392

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[–] mienshao@lemmy.world 15 points 5 days ago (2 children)

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.

Also, why the FUCK is ANYONE expecting a corporation to fight fascism? If you think that’s a corporation’s role in society, put down the phone and sprint to your local fucking library.

[–] ReallyActuallyFrankenstein@lemmynsfw.com 19 points 5 days ago* (last edited 5 days ago) (2 children)

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.

[–] Dubiousx99@lemmy.world 8 points 5 days ago

Thank you. This isn’t a fair use case. They aren’t making a statement parodying anyone. They aren’t using it to report news, teach, or research anything. I would also think fair use laws would prohibit uses that harm the value of the copyrighted work.

[+] Horsecook@sh.itjust.works 0 points 5 days ago (1 children)

[deleted]

[–] ReallyActuallyFrankenstein@lemmynsfw.com 1 points 5 days ago* (last edited 5 days ago)

I'm glad you asked, Horsecook. Well, my take is this:

Pokemon depicts the fictional Pokemon as friends of the protagonist who submit willingly to their control after "capturing" them. It's in line with humans keeping pet animals in captivity, since they also have no say in the matter but eventually come to depend on the human. The problem of course is the "blood sport," which is most analogous to dog or cock fighting. That said, this is Nintendo's kid-friendly fictionalized world, and the depictions in this show no blood or injury, and only that Pokemon get tired and "faint."

But in the end, and most importantly, Pokemon aren't real. Whatever is in the Pokemon game does doesn't violate any animal or human rights, even if Pokemon were depicted as blood-drinking monsters who derived their power from sacrificing cherubic Christian children to Mammon at a blood moon pentagram altar, clad head-to-paw in white robes weeks after Labor Day. I think that's a vital distinction.

On the other hand, ICE's social videos are about treating real humans with equal or less respect than animals. It is meant to normalize removing their human rights including procedural and substantive due process, and parading them to viewers as little more than sub-human vermin (a favorite word of Trump and Stephen Miller for those picked up by ICE), and criminals (usually without any legally reliable basis).

So TLDR: Pokemon anthropomorphizes fictional animals and treats them mostly kindly, with debatable exceptions. ICE dehumanizes real people and treats them as subhuman. I think Nintendo has a pretty good argument that (as this is not intentionally parody of Pokemon, but an ICE recruitment ad) that their brand/market is being damaged.

[–] shininghero@pawb.social 7 points 5 days ago (2 children)

Now the big question is: can this be used as case law against future attempts by Nintendo to stomp on fair use and other parody works?

[–] frongt@lemmy.zip 2 points 5 days ago

There's no case, so there's no case law.

[–] missingno@fedia.io 1 points 5 days ago

Only if Nintendo goes after something that could be defended as parody. But they know to choose their battles carefully, they only threaten legal action when they know they can win, and this won't change those kinds of cases.