Video game characters are certainly copyrighted, and whether or not it is fair use is probably immaterial. You cannot afford a copyright suit to defend your fair use rights. Remember Lessig's Free Culture and McLeod's Freedom of Expression on fair use? The video game manufacturers will certainly treat this as not fair use.

For those that don't know me, IANAL. If you are using an image that is already placed on the web by the copyright holder, then you are probably not going to affect greatly the commercial value of the copyrighted work. Probably would be hard for them to seek damaages in that circumstance. A cease and desist notice by itself is no big deal. Just stop using it then :)

Fair use is hashed out on a case-by-case basis, although the characters you would be using are almost certainly copyrighted, and most use would violate that protection. If your use is academic in nature, properly cited, and for limited circulation, it might fall under fair use. All of this is somewhat moot, however, because if there is a dispute, you will have to demonstrate that your use is legitimate, and few people have the resources to do so.

I would suggest you check the sites of the respective copyright holders first, as some game companies have learned that people are going to use their IP anyway, so they provide images for online use (it is, after all, free advertising for them). You should also consider contacting them about your usage. I had to do something similar to this with a Sony game, and they didn't come down on me despite this message on their support site:

"We try to avoid putting those annoying ®, ©, and ™ marks and loads of itty bitty type on every page, but we're telling you now that everything on this site is copyrighted and trademarked by us or one of our partners, unless we say otherwise. This means you can't just use the stuff (no matter how amazing it looks) without our written permission. And we've got to be honest up front: even if you came up with a totally cool idea that we were really excited about, it's not very likely our lawyers would let you use our stuff, even if you asked nicely. So you may want to just enjoy it while you're here."

In truth, you would have little to fear even from illegitimate use. As you state, the characters are being used all over the internet without stated permission, and so if your usage is not noticeably defaming, you're almost assured to fly under the radar. I enjoy Lessig's work and think he's right on in many respects, but one thing he doesn't always acknowledge is that just because the law is on the side of corporations, that doesn't mean the numbers are. For a corporation to protect this kind of copyright litigiously would be a losing proposition, as the endless legal fees would drain resources for a questionable return, and, more importantly, not prevent any other violations from springing up; such a corporation would be metaphorically battling the waves of the ocean.

For all of that, as ethical people, we should clear our use in cases like this with the copyright holders first. Otherwise, how could we look our students in the face when we discuss issues of IP, documentation, and plagiarism?

- J. Tirrell
http://www.jtirrell.com

I personally don't think Matt ought to worry too much in this particular circumstance. Cease and desist letter are easily dealt with by desisting. Nevertheless, don't bet on the fact that it won't happen: Paramount Locks Phasers on Trek Fan Sites. I've also heard of instances where Disney has written cease and desist letters.

Sorry, couldn't resist. We've actually decided to just go with photographs of our gaming hardware instead--something in the manner of this website. It's hard to believe these companies are silencing what amounts to free advertising (and the word-of-mouth kind, the best kind!) at that. Idiots. Still, no one ever accused a corporate lawyer of brilliance.

If the images are part of your trademark, under the law, you have to make efforts to protect your trademark or risk losing it. So there's a little more at stake here with something like game characters or Disney cartoon characters than what we normally think about in terms of IP when only copyright is involved.

Yes, that's very true, Charlie. I had more in mind those folks going after Star Trek fan sites and the like, where there is no profit being made and the whole project really works as free word-of-mouth advertising for the brand. If I put up, say, a Tommy Hilfiger site and had photos of my friends wearing the jeans and talking about how much they loved them, and then TH sends me a C&D--that's the kind of idiocy I had in mind.