Using fanart characters (smutbase) in games legal?

[hamsters]

I know there's parody laws, but I've read this only applies if you actually defend in court, as in they could still sue you over it and win.

But then I look at smutbase and see that 99% of the characters are fanart from games/movies. Is there a rule of thumb for "what is safe"?

I'd imagine that some asshole companies like Disney would be much more likely to get legally involved if someone made a "Frozen: bukkake rape edition" game, but then I see games like Innocent Witches that literally go all out on just ripping off Harry Potter.

I've also read that "monetization" is a big problem in this case, and there seems to be a difference between "free game", "free but on patreon", and "paid", but again ... not sure what the reality of this is. Any tips very appreciated.

 

[dingo4life]

Patreon is a greyzone as it is technically "donations", which is also why there are basically zero costumer protection.
Parody laws change from country to country but ultimately if you are not gonna mistake one product from another it's fine.
Porn parodies have existed since forever and they basically just dress their actors up in costumes and have them fuck, they don't even know what the plot of the IP is about.
Finally, if you are up against Disney lawyers, give up, no really, it is probably irrelevant how right you are considering their fuck off amount of money and connections that are gonna make your trial and life in general a living hell and on the other end of the spectrum if you are facing some rando who draws lewds on Twitter and you took them without permission to use in your game, yeh, you will probably be seen as a bit of an asshole but they probably won't be able to sue you, especially if you are not from the same country since it's too expensive and they will get next to nothing out of it.

Unless you intend to release on steam or something you probably don't have to worry about any of this though considering what is out there already and is monetized, just make it clear it's not part of any official franchise.

 

[desmosome]

This is incredibly complex and you won't find a satisfactory answer from a porn site.

When it comes to porn parodies, I think the most important factors will be monetization and how transformative it is. Monetization is a bit murky with patreon. You are not actually selling products. You release it for free, but people can donate to you for whatever reason.

Transformative clause will mean that you are less likely to be sued if you change stuff. The most common tactic is to change the name to like Klork Cunt or something. Changing the color scheme or the look a bit will protect you too. The story might also factor into it depending on how much canon material you are using.

But honestly, not many companies will bother going after random devs/artists. They have pretty much nothing to gain other than protecting the "chastity" of their characters. There are some notable fuckheads like Nintendo that is notorious for going after porn parodies though.

I don't think getting sued is the first step, even if you get unlucky and get the attention of the IP holder. Usually, they will send you a cease and desist letter. This is basically how the big guys bully small timers. It is basically a threat to sue them if they don't comply. If you actually fight them and take it to court, you might even have a decent chance at winning. But that takes money. You have no money, Nintendo has a shitload of money. And they can drag it through the system for years while your bills stack up. So yea, they can make you fold by just sending you a letter.

 

[Count Morado]

I know there's parody laws, but I've read this only applies if you actually defend in court, as in they could still sue you over it and win.

This is incredibly complex and you won't find a satisfactory answer from a porn site.

I don't think getting sued is the first step, even if you get unlucky and get the attention of the IP holder. Usually, they will send you a cease and desist letter. This is basically how the big guys bully small timers. It is basically a threat to sue them if they don't comply. If you actually fight them and take it to court, you might even have a decent chance at winning. But that takes money. You have no money, Nintendo has a shitload of money. And they can drag it through the system for years while your bills stack up. So yea, they can make you fold by just sending you a letter.

This subject has been debated ad nauseum on this site. The best advice you are going to get is from your lawyer (I know, you don't have a lawyer - and that's why copyright and trademark holders win in most cases, either through threats or bleeding the small person dry with legal fees).

If you're small fry and keep low, you have less risk - but there is still risk. As soon as a site you are requesting money on or posting your content to gets a copyright breach statement from a law firm, they are going to put ALL your content on hold until you resolve it. And depending upon the veracity of the copyright owner, it could be the least of your worries.

 

[hamsters]

Thanks for the answers! I guess it confirmed my suspicions, but this makes me even more confused.

Why is there so much fanart that is being sold for money? For example CGTrader is full of stuff like "Disney Elsa for 3d Print" that's legit being sold for real money.

And then there's hundreds of models on Smutbase/Daz that are obviously copies from copyrighted content. How do people actually end up using these and putting so much effort into them if monetizing them is problematic?

 

[Carrera]

Anyone taking issue with a parody must send you a cease and desist order first. You'll know long before hand if someone is getting cranky over whatever it is you're doing.

As for donations and monetization, that means little if someone is taking issue.

Using myself as an example, if you're making money off anything I technically own, I will act on it. I don't care if it's donations or having dollar bills stuffed in your g-string. I have no problems with people using any of my property in a game as it's free advertising since nobody ever removes (rarely removes) watermarks or website names but the people that work for me and trust me with their pictures, I owe it to them.

Also, keep in mind that just changing the color of a character or putting a border around an image is NOT transformative enough to get you out of hot water.