Have you ever heard of Andy Warhol? He was an artist in the 50s~80s. Among other things, he was known for editing portraits of celebrities with different color palettes and arranging those portraits on 3x3 grids:



Andy didn’t take that photograph of John Lennon. All he did was trace over someone else’s photograph with different colors and then duplicated it a few times. Is this “art theft”? No, it’s “fair use”. Andy significantly changed the original work. By altering the colors, duplicating it, and arranging the duplicates, Andy created something new, something that can no longer be considered the property of the original photographer. It doesn’t matter whether or not he had the photographer’s permission, and the original photographer has no right to claim that his work was “stolen” by Andy.



In one of my recent videos, I wanted to quickly communicate the idea that I might add DLC rivals to the game one day. I googled some images, turned them into silhouettes, and put them into the video. Some people have chosen to describe this as “art theft”. I maintain that my use of those silhouettes is “fair use”, and now I’m going to explain why.



“Fair Use” is judged by five factors:



“Purpose and character of use” - The silhouettes appeared for 17 seconds of a 1,040 second long video (1.6% of the length of the entire video) to convey a point about what types of characters might appear in the future as “DLC”. Like Andy Warhol, I created something new when I turned the images into silhouettes, arranged them on the screen, and and added voice-over narration discussing the prospect of DLC. My usage of the silhouettes is completely separate from the purpose and character of the original artwork. Because I gave the images an entirely different purpose/character by turning them into silhouettes, arranging them on a screen, and adding voice-over, it is very likely that a judge would rule this “fair use”.



“Nature of the work used” - A judge would consider whether the images were private (hidden from the world) or public (available to the world). All of the images I used were publicly available images. One was an “adoptable”, two were non-profit fan art, and another was promotional artwork for a video game. Because all of these images were public, this increases the likelihood that a judge would rule this “fair use”.



“The amount of the portion used in relation to the work as a whole.” - What “amount” of the artwork did I use? Silhouettes. Not color, not linework, not shading, not facial expression, nothing that makes up the “heart” of the image…I only used one thing - general shape. Furthermore, these are not famous silhouettes (like the shape of Mickey Mouse’s head). I doubt that anyone immediately identified any of those images from memory. I am fairly certain that people had to do some degree of research in order to find these images. As I said above, the images appeared for 17 seconds in a video that was 17:20 minutes long. Because I used incomplete replicas of images very briefly in a video that was about a completely different topic altogether, it is very likely that a judge would rule this “fair use”.



“The future market value of the used work.” - 2 of the 4 illustrations were non-profit fan art. Thus, the effect on the market value of those images is zero. The Ace Attorney image was promotional artwork for a game from 15 years ago, and the way that I used the illustration does not prevent anybody from buying the game. The silhouette of the “adoptable” was an incomplete replica and thus its value was not harmed by being featured in a video. Thus, the effect on market value for all 4 images is zero. It is very likely that a judge would rule this “fair use”.



“Malicious intent.” - Is the use of these images malicious? No. I had no intent to cause harm by using these images. I was low on time, I wanted to get the video out quickly, there wasn’t enough time to ask one of my artists for illustrations, so I just googled things like “anime policewoman” and then stuck some silhouettes into the video. There is no judge alive that would consider this “malicious”.



Let me tell you about a real court case that actually happened. A photographer watched a film and noticed his own photographs in the background of one of the scenes. He tried to sue the film studio for copyright infringement. The judge ruled it “fair use”, because the images were so fleeting that you couldn’t even identify them unless you made it your mission to identify them. That is exactly what my current situation is (and it’s even harder to identify the original work in my case, because I used silhouettes - “incomplete replicas” - instead of the actual artwork).



In short: To call this “art theft”, you’d need to have an overly simplistic, black-and-white view of the world, and completely ignore the concepts of “transformative works” and “fair use”. Everyone who is freaking out about this is starting drama just for the sake of having some drama to talk about. This is not a big deal. This is a trivial matter. This is a non-issue.



The only reason that anyone is discussing this in the first place is because there’s a group of creepy weirdos who scrutinize everything I do and try to portray me as an evil monster. They do not think rationally; their mission is to characterize everything I do as an evil, immoral act. I could sneeze, and they would find some reason to crucify me for it. It’s very unfortunate that there are a lot of gullible people who blindly believe every single piece of propaganda that appears on the Internet. Any rationally-thinking person can plainly tell that the use of the silhouettes is not “art theft”.



If I actually do feel that I’ve done something wrong, then I announce it, I apologize to the person involved, and I rectify the problem. That’s what I did in the Nemesis situation: https://yanderedev.wordpress.com/2016/12/30/a-new-nemesis-for-2017/ I’m not going to do the same thing regarding the silhouettes, because I haven’t actually done anything wrong in this case.



The people who hate me will continue to do mental gymnastics to convince themselves that everything I do is an unforgivable, evil crime. Young children on Tumblr will continue to start drama over trivial, unimportant issues. Every week, there will be a new “nontroversy” that people will get up in arms about.



And the world will keep on turning.

