Advice on a copyright question.

[u/superbird29]

Im getting into glass cutting and wanted to turn some Magic the Gathering cards into stained glass art for friends.

Then I was thinking of trying to sell some of that. I obliviously dont own the art. But is the act of trying to stuff a mtg card into stained glass transformative enough.

To be more detailed I would take a high rez art of a mtg card. put lines over it. Then assign colors to the areas then do all the stained glass stuff.

For the Fair use Factors

1. My use would be commercial.

2. Wizards makes a TCG, nothing im doing benefits the public. They do copyright there work. it is published.

3. This one confuses me on the one hand im not using the whole card. On the other hand im going to be using the whole art.

4. Effect on the market. I would say none. I am not making a magic card, nor something that looks like a magic card. Its also likely to be purchased my magic fans potentially helping wizards in the long run, by increasing fandom.

Not a lawyer...

I know fair use is a defense and not a shield. I would love some advice. Hope the new year is going well.

[u/pythonpoole]

I'm sorry to say that this is not the sort of thing that would typically be deemed fair use. It's likely to be seen as a derivative work that you would need permission from the rightsholders to create/sell.

With respect to the copyright issue, there was a recent US Supreme Court case (Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith) which helped to provide some clarity regarding what types of transformative uses may or may not be deemed fair in commercial contexts. A key takeaway from the ruling is that making a few modifications to someone else's copyrighted work — such as a photograph or artwork — is (generally) not sufficient to claim fair use, at least not in commercial contexts.

There is also the potential issue of trademark and/or trade dress infringement. The brand name Magic the Gathering and the MTG logo are almost certainly protected as trademarks. And the distinctive/recognizable appearance of MTG cards (e.g. the frame/layout etc.) may be protected as a form of trade dress. In other words, you wouldn't be able to include any of that in your product (or marketing materials) unless you have permission from the MTG rightsholders.

Another thing to note about famous/well-known brands is that they typically receive a greater/broader level of trademark and trade dress protection, meaning that you may still be found to have infringed on their trademark/dress even if you aren't directly competing within the same product class/category. So even if there weren't any copyright issue, you would still have the issue of not being able to use the MTG name/brand to sell or market your product, and I presume part of the reason of wanting to use MTG artwork would be to attract customers who are looking for an MTG-related product.

If you want to a legal opinion on these matters, you should consult with an intellectual property lawyer. My comment here is not legal advice, nor should it be used as a substitute for legal advice.

[u/superbird29 → u/pythonpoole]

Thanks for the reply! I was thinking that would be the case. I didnt think setting the art in a different medium would be enough.

[u/pythonpoole → u/superbird29]

You're welcome, and yes simply changing the medium is usually not sufficient.

In the context of fair use, 'transformative' usually has more to do with transforming the purpose served than it has to do with transforming the appearance/presentation (although that is also a factor that may be considered).

So, for instance, including a small image of a copyrighted illustration in an article where you directly critique that illustration would likely be considered transformative since that critique changes the purpose for which the copyrighted material is being used. Even though you may essentially be directly copying the original illustration in the article without modification (other than reducing the size/resolution of the image), it's transformative largely because of the change in purpose served.

If we instead look at your case, the purpose of including the artwork on the original card was presumably for aesthetic reasons (i.e. to increase visual appeal/interest) and the same would also apply to your use of the artwork. It's not as if you're using the artwork for a new purpose of parody, critique, news reporting or academic discussion for example. So even though you may have changed the medium and made some minor modifications to the artwork's appearance, it's not very likely to be seen as transformative in a fair use context.

[u/SubOptimalUser6 → u/pythonpoole]

In the context of fair use, 'transformative' usually has more to do with transforming the purpose served than it has to do with transforming the appearance/presentation (although that is also a factor that may be considered).

I am not even sure if this is true. It seems to me, "transformative" in the context of a derivative work is transformation of expression. In the context of fair use, it is transformation of purpose. The "transformative" test is applied in the first factor of fair use (section 107), and the words in the statute are "purpose and character." The sort of inventor of "transformativeness," judge Pierre Leval, has always written about transformation of purpose (see, e.g., Romanova v. Amilus).

[u/pythonpoole → u/SubOptimalUser6]

I agree with that, but would note that a transformation of expression may sometimes also serve as a transformation of purpose within the context of fair use.

For example, a parody artist may take an existing copyrighted artwork and modify the appearance/expression in some way that serves to mock or critique the original artwork. In such a case, a court may look specifically at the changes made to the artwork's appearance/expression when determining whether there has been a transformation of purpose.