Why Toby Has Every Right to Refuse People Selling Unofficial Fan Art (also about fair use)

So fair use, huh? According to British copyright law, fair use (also known as fair dealing) allows people to use copyrighted works (commercially or not) for certain purposes, such as research or private study, criticism or review (one that’s heavily ignored by IP owners *cough* COOL CAT *cough*) or news reporting. It is NOT uploading your favourite Krewella song to YouTube and putting fair use text onto the description, and it’s also not selling fanart for the sake of selling fanart, which is what we’ll touch on in this post.

So recently, people have been disappointed at and hating on Toby Fox (developer of Undertale) for not selling enough merch AND not allowing others to sell their own merchandise of the game. I can say something about the first point — for instance the game only being out a month or two AND it being an unexpected seller, there’s bound to be a small amount of merchandise, but for now let’s focus on the second.

You see, fanart at this moment in time does not constitute fair use. It’s still using copyrighted work without the transformative factor that’s protected by fair use. A review or Lets Play of Undertale that someone is gaining profit from is considered fair use since you’re going there not for the content of Undertale itself but the opinions of someone or the personality of the reviewer/gamer. Another example would be game parodies like Jacksfilms’ Flappy Bird parody. Yeah, it uses content from Flappy Bird, but Jack is criticising the game, the hype, the people playing the game and the copycat culture of the mobile gaming market that was demonstrated during Flappy Bird’s heyday. This allows Jack to have his videos protected from Flappy Bird under fair use.

People who make intellectual property (that name sounds stupid.) are usually fine with fanart as long as you’re not profiting from their work. This is pretty basic. In this case, Toby is not comfortable having people sell unofficial merchandise of his game. Some game developers just don’t want you profiting from their work. That’s it. Nintendo and Rovio (developers of Angry Birds, my favourite game of all time) have been taking down unofficial merch of their property for a long time now. Sure, it may not hurt them as much if unofficial merchandise of their franchises were being made, but for a smaller company or team like Toby’s, it could seriously hurt them financially. So it’s no surprise that Toby has refused this to happen. Remember that video game development are still a for-profit thing as well as a for-fun thing. Why do you think universities are having game development courses? I can tell you it’s not because they’re oh-so-kind to gamers. People are interested in making games, and universities get paid top dollar (or pound… or yen…) to enrol people to their courses.

Last thing: One thing Toby could also do is take down 3LAMESTUDIO’s cringey-ass videos, since they use characters that he owns, and I believe that 3LAME profits from his work through YouTube’s Partner program. Remember how Meme Run got removed from Nintendo’s eShop by the designer of the troll face, and when the creator of fucking Nyan Cat (deadmau5’s favourite meme) sued Scribblenauts’ publishers for including said meme in their game? But please, don’t nag Toby about that. Let him handle that himself. If you do nag him though, I will find you, I will come to your house, and I will force you to watch all of 3LAMESTUDIO’s videos. Especially Twerking Steven Universe.

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