Real Life Example of Fair Use: There Will Be Brawl

Starting in 2008, some fans of the Nintendo Wii game “Super Smash Brothers Brawl” started making a parody video staring some the games characters called “There Will Be Brawl”. It is a series of 10 videos that follow through a fan made narrative that includes: murder, cannibalism, debauchery and heroics.

Here’s the first video in the series.

As Gasser and Ernst point out in our class reading, new media is inspired by old media and that fair use makes sure that the new works are created without fear of persecution, which as they point is the point of copyright laws.

While each case of fair use is determined on a case-by-case basis, there are 4 factors that the courts will look at and weigh together to determine if the work is protected by fair use. I will now assess whether or not “There Will Be Brawl” would be protected or not.

The first factor is the purpose and character of the new work. On the info section of “There Will Be Brawl” website, it says “’There Will Be Brawl’ is a non-profit web series designed as a dark, dramatic parody of the popular Super Smash Bros. Brawl video game for the Nintendo Wii.”  The important part of this disclaimer in this regard is that the web series is non-profit.

The second factor is the nature of the copied work. From the above quote, it is important to point out that the work is intended to be a parody. Also, on the same page the video makers write “The Creators of the project are avid fans of Nintendo, and this series has been developed as an homage to the colorful characters of SSBB that we all know and love.” The fact that the creators are fans, holds merit here.

The third factor is the quantity and of the original work that is used in the copied work. It is true, that the web series uses all of the characters from “Super Smash Brothers Brawl” and several characters from other Nintendo games, but I think there is something about it being live action as opposed to animation or machinima. The fact that the video makers went through all the work and trouble to make elaborate costumes and make up effects for actors means something in this regard.

The fourth and final factor is whether or not the copied work will affect the original work’s value in the market place. If anything, I think the web series would help with the sale of the video game. They are on two completely different media.

What I think is particularly interesting is that I could not find any response that Nintendo has made to the videos.

What do you think?

Do these videos fall under fair use?

Would it change anything if instead of being live action, it was animation or machinima?

Is it ethical for these videos to be made (especially in regards to the Ess reading from earlier this week)?

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