Fair Use is also an affirmative defense, meaning you’d have to litigate it in court. That means the infringement exists, but it’s excusable, if shown by facts to fall under Fair Use.
What this means practically is that if you’re a small
Player (say a local or online exclusives comic shop) and the copyright holder (say SONY) wants to sue you, you are looking at an expensive uphill lawsuit which the copyright holder has every right to litigate all the way to a jury trial.
Then how the Hell do the Notti and Nyce comics get away with all their parodies or the Do You Pooh stuff before Pooh became public domain? Was it decided it was better to leave them alone than to dry attention to it? I’m not mad at you, just flabbergasted.
Copies of the Virgin Gleason variants store exclusive of Goblin Queen and also Green Goblin of ASM 1 up for FOC is on his own site. Personally, too expensive for my taste, I passed, but in case anyone is interested…
I couldn’t even start to speculate on reasons why or why not a certain publication hasn’t had enforcement action taken against them, but enforcement is the key.
If a particular copyright holder doesn’t enforce, it sends a message that the activity can continue. Those publications could just be flying under the right holders’ notice. Maybe the right holder just simply doesn’t care. Maybe their calculus is, yes, that is likely slam dunk fair use so we don’t want the bad PR of litigating, just leave them well enough alone.
Milne’s estate was notoriously litigious, but maybe things have changed since the Mouse owns it now.
The effort, cost, probability of success, and the reward probably factor in the decision. The legal process, like many laws is subject to cost/time implications. Kind of why most politicians/businesses have a battery of lawyers, and you look at a situation and wonder why the case has not been settled yet even though its clear as mud what the outcome should be. For me the cost issue is a big problem, puts the average person at a disadvantage.
I just settled a pretty cut and dry eminent domain case for $1.5M and the case has been on my docket since 2016.
Delays get compounded when you’re asking a state agency to fork over money.
EDIT: oops almost forgot THE POINT. The other day I drove up to my in-laws and saw that as a part of some utility work in their street the workers relocated a fire hydrant onto their property.
I learned from them that in spite of just compensation being offered and paid being a requirement in our state constitution, the issue of payment for this fire hydrant on their land never even came up. When I brought it up to my mother-in-law and she asked how much they’d get out of it, I said around $500-1,000. So NOT the $1.5M commercial judgment type of money because this is just a private residence and so values are lower. She shrugged and said, we’ll that’s not even worth the trouble of talking to the City about it.
Not a big deal in a confined case, but you can see how state and local actors routinely failing to offer proper payment to residents would end up being a huge savings and depriving tons of citizens of what they owed simply because (1) it wasn’t offered as required; (2) if it was offered it was usually low ball; (3) most people don’t have the time, money, resources or patience to go get it.