You seem to be assuming that derivative work doesn't require hard work of its own. I tried to make the point that this game is itself a derivative of other things, without which it couldn't exist.
Even if you did do that: why would anyone buy it in lieu of the original?
> I tried to make the point that this game is itself a derivative of other things, without which it couldn't exist.
Being a derivative in the sense of borrowing game mechanics [1] or drawing influence [2] isn't nearly the same as copying (or deriving from) the content. Many artists put hard work into developing their content, and it cannot be right to say "Hmm, that's popular, I should use it to market my product" without getting proper licensing. Even if it happens to be a corporation in ownership of the content.
I do agree that there might be some benefits to copyright reform, especially relating to culture and literary value. The latter part of your article hints at some interesting alternatives, but I not sure I believe them to be 'absolutely' better.
Almost NO ARTIST in the history of EVER has EVER DRAWN an original image. They always draw depictions of things you can see in real life. Picasso did it in a very original style, for example, but he still drew THINGS HE SAW. By your logic, if I put a bottle of wine next to a pear and some cheese and draw them, I should pay the wine producer, the pear grower, the glass blower, the cheese maker, the table maker, the cloth weaver, etc. etc. etc.
Why should drawing an artistic illustration of a block of cheese be different from drawing a videogame character? Both had substantial investment in their appearance. Both have a primary function different from being simple pictures. I am not copying a picture, I am making an illustration of something I saw in real life.
Those items (cheese, wine) are not covered by copyright, as they have no literary or artistic value themselves. The composition and painting would be the artist's creative work.
For other cases, fair use also plays a role depending on the circumstance. It isn't entirely binary. I support expanding fair use in ways that benefit the public while not hindering artists.
But the article mentions selling a derivation of a company's creative work, and I don't think the rationale is particularly better than liking the work and wanting money by using a popular brand. They are, more or less, directly competing with the original author. I think the societal benefits are questionable.
> Those items (cheese, wine) are not covered by copyright, as they have no literary or artistic value themselves.
In case of actual still-lifes, the labels might bear illustrations or otherwise protected content, like fonts, distinct bootle designes, or trademarks. While the latter might be allowed under fair use, what about reproduced, if even only stylized, illustrations? Do you expect an artist to find the illustrator and pay a license fee, in order to sell their own work?
Also, fair use is a us-american practice and isn't applicable to copyright and similar concepts in general, as far as I'm aware.
Hmm, I wasn't considering labels that might be on the items -- that's a good point.
If a derivative of the label were, for example, being used on another wine bottle without licensing, it would unambiguously be copyright infringement.
However, a painting which includes the label in the described way, could be considered fair use, namely that it is transformative and does not diminish the market of the original work. Commercialization of the derivative work as well as other context may also affect the claim of fair use. Trademark also has a fair use defense in the US, which might be relevant here.
I do use 'fair use' in the US sense; there are similar concepts in some other countries, but not always 1:1 with the concept to which I'm referring.
> If a derivative of the label were, for example, being used on another wine bottle without licensing, it would unambiguously be copyright infringement.
To be honest, I don't think the copyright is the most important part here, but rather trademark laws, as another user noted here https://news.ycombinator.com/item?id=10442882 since it'd be causing a disrupting confusion, IE making consumers believe they buy a product which they actually don't buy.
The problem with fair use is that it's ambigous. Only courts can declare fair use with authority; an artist claiming fair use for their work has no authority, in the sense that they can still get sued, and neither do their lawers hold defining authority about this aspect. This, effectively, creates a large legal gray zone. eevee is arguing from the perspective of a creator, and people seem to get a little worked up with elaborate, imaginary examples. The important part, though, is the idea behind the post, that being: Artists are subject to a lot of legal insecurity. Copyright is one of the most empowering and simulatanously most crippling insecurities. Remixes and DJ-sets on youtube and soundcloud, publishing street photography, creating fan art, as some examples. All of these are to a varying degree both legal and illegal, most importantly depending on your specific location. In my case, my country knows a case similar to fair use: if said bottle label was reproduced in a recognizable manner, and it was a major part of the work, it would be an infrigement. If it was a minor part (dubbed 'padding') of the art work, it's considered a sibling of US fair use. But only courts can decide either. And artists often aren't well-funded, hence avoid anything which might smell like a lawsuit, hence freedom of expression is hindered in a significant way, for no particular reason but lack of legal clarity. I'm just writing all this, because you seemed very emphatic in your view. But this is a really ambigious topic, which requires a lot of consideration and empathy on all sides. So I wanted to add a little perspective. /edit: not you, swhipple, but hn seemed very emphatic, while you, swhipple, seemed to recognize a need for clarity, so I wanted to add some perspective under your considerate opionion. Pardon my misaccredition. I didn't mean to sound rude or devalue your view as inconsiderate. Your "It isn't entirely binary. I support expanding fair use in ways that benefit the public while not hindering artists." made me chime in.
> Those items (cheese, wine) are not covered by copyright, as they have no literary or artistic value themselves.
They should be. Cheese appearance doesn't happen by itself, it takes actual work to achieve and cheese makers strive to make the cheese look good. It isn't under copyright because the shape is also utilitarian and utilitarian items aren't under copyright (see: clothes), but there is fundamentally no difference between the way a piece of Brie looks and the way a game character looks.
"Even if you did do that: why would anyone buy it in lieu of the original?"
Because of market confusion. I would generate sales from people who didn't realize they were not buying the original. This happens right now but it would be much worse if we removed all the controls.
"You seem to be assuming that derivative work doesn't require hard work of its own. I tried to make the point that this game is itself a derivative of other things, without which it couldn't exist."
I didn't say that at all. Honestly that seems irrelevant. It also requires hard work to plan and successfully rob a bank.
Please don't equivocate between trademark and copyright law—it muddles the waters and degrades the discussion. The original article and its points were all about copyright law. Releasing a game called "undertale" is a trademark law question.
Even if you did do that: why would anyone buy it in lieu of the original?