If I add a copyright disclaimer to my app, am I exempt of charges?

Question

I'm creating a Pokemon Wiki app for Android with a lot of data related to Pokemon, including images, names etc. I've seen in the Google Play store a lot of apps like mine that contains ads and in-app purchases. Also, I've noticed that all these apps have a disclaimer section where they indicate that

This app is not affiliated, endorsed or supported by Nintendo in any way, also some images used in this app are copyrighted and supported under fair use, Pokemon and Pokemon character names are trademark of Nintendo, no copyright infringement intended. Pokemon (C) 2002-2020 Pokemon.

If I add this disclaimer to my app, will it be enough to avoid getting involved in serious legal problems with copyright and Nintendo if I add ads and in-app purchases to my app? The apps mentioned before have been in the store since 2015 and they haven't been removed yet.

Also I want to know if I'm protected in some way. I don't mind if Nintendo takes down my app after 1 year in the Google Play store, I'm only scared if they take legal actions against me and I have to pay money or go to jail.

Note that copyright and trademark law are completely different things, and combining them into one muddled disclaimer is a sure sign that the author doesn't understand them. — IMSoP, Aug 07 '20 at 09:10
I don't understand them too , however , I just want to know if I'm protected in some way , I don't mind if Pokemon turns down my app after 1 years on the Google Store , I'm only scared if they take legal actions against me and I have to pay $ or go to jail. — Nexussim Lements, Aug 07 '20 at 09:18
I would add that given the complete inability of Google to adequately police the Play Store, an app’s presence in the store is in no way a sign of legitimacy. — Darren, Aug 08 '20 at 05:06
What country are you in? Copyright and trademark laws differ between countries. Also - if you're so worried about possible negative repercussions, I suggest that you shouldn't do what you're contemplating. — Bob Jarvis - Слава Україні, Aug 08 '20 at 21:24
@You'rebadandshouldfeelbad: Or, for the extremely long version: https://youtu.be/1Jwo5qc78QU (Disclaimer: I work for Google, which owns YouTube. I don't work on YouTube, and I do not get paid to convince people that YouTube isn't evil.) — Kevin, Aug 09 '20 at 01:33
"no copyright infringement intended" can be roughly translated as "please sue me, I don't know what I'm doing" — OrangeDog, Aug 10 '20 at 13:47

IMSoP · Accepted Answer · 2020-08-07T11:05:38.660

Imagine if the answer was a simple yes: adding a disclaimer was enough to exempt you from any and all copyright and trademark law suits. If that was the case, there would be no point in copyright or trademark law at all, because everyone could just include this disclaimer and never be sued.

That doesn't mean every disclaimer is useless, but it does mean that copying and pasting some vague wording without understanding what it means is very unlikely to help you very much. The example you give is a good example of doing just that; the terms it uses are real, but they've clearly been thrown together without real understanding:

Copyright is the right to control and profit from a creative work. This is relevant because images of Pokemon characters created for games, manga, etc are copyrighted by their creator.
Trademarks are words, symbols, images, etc exclusively associated with a particular company or product. Trademark law aims, among other things, to avoid customers thinking they are getting an official product when they are not.
"Nintendo" and "Pokemon" are both themselves trademarks. They are also the names of different companies. My limited understanding is that "The Pokemon Company" will be the owner of all the copyrights and trademarks related to those games, manga, etc. Naming them is a way of showing that you have researched this and understood their rights.
"This app is not affiliated , endorsed or supported by Nintendo in any way". This is a disclaimer on the trademarks. Whether this is sufficient to protect against claims of counterfeiting depends on how prominent it is compared to other branding - you need to make it obvious to users that the product is unofficial, not bury this in small-print for the lawyers to find.
"also some images used in this app are ... supported under fair use" - fair use is a US legal concept which allows copyrighted works to be used in certain specifically limited ways. Saying your use is covered does not make it true, you need to actually understand what provisions of the law allow your specific use.
"no copyright infringement intended" This is a fluffy apology that has no legal standing. A more useful statement might be "every care has been taken to adhere to copyright and trademark law, if you notice a violation please contact X"; but you're still relying on goodwill, and it won't stop someone sending the lawyers in if they decide to.

Which brings us back to the real question:

The apps mentioned before are in the store since 2015 and they haven't been removed yet.

The real reason for this has nothing to do with the poorly-written disclaimers, it is that Nintendo / Pokemon co haven't bothered. If an app is directly competing with an official app, or receiving a lot of attention (even if no money), the lawyers will descend; if it's a buggy image gallery with a dozen downloads, they might decide they have better things to do. If they do notice, they might just get Apple and Google to de-list the app, but not spend the time and money pursuing a legal case.

On the other hand, at any time they might decide they need to tighten up control of their intellectual property, and make an example of a few authors picked at random. The only way to avoid that is to actually avoid violating their rights, rather than just saying so in a disclaimer.

note that, if they would go for the people, even claiming the minimum damages of 750$ per infringement and only go for one item per pokémon, you get a liability of 113250$ for just the 'original' 151, and about 675,000 for all the about 900 pokemon that exist at the moment. multiply tha by up to 200 should the court interpret the app as wilfully infringement. — Trish, Aug 16 '20 at 11:53

score 23 · Answer 2 · answered Aug 07 '20 at 23:54

23

"No infringement intended" is meaningless. One of these things is true:

The copy isn't an infringement.
The copy is an infringement, and the responsible person knows it.
The copy is an infringement, and the responsible person doesn't know it because of ignorance about the law.
The copy is an infringement, and the responsible person doesn't know it because of an incorrect interpretation of law or fact.

In the first case, all is well, and the disclaimer is unnecessary. In the second case, the disclaimer is a lie. In the third case, ignorance of the law is no excuse. In the fourth case, the disclaimer should say something more specific about the reasons that supposedly justify the copy.

answered Aug 07 '20 at 23:54

phoog

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To the extent that a copyright disclaimer could discourage someone from using the copy of the work as a substitute from the original, such discouragement would help support one of the bases for a finding of "fair use" in an otherwise-borderline situation. Commercially-distributed applications seem like they would likely fail a "fair use" test, with or without the disclaimer, but things like fan fiction might benefit from it. – supercat Aug 10 '20 at 19:18
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@supercat actually, such disclaimers have been found to be a sign that the infringer knew he wasn't allowed to take the work but did it anyway, putting them in the wilful infringement category. – Trish Aug 16 '20 at 01:28
@Trish: The whole premise behind "fair use" is that one is doing something that would generally be an infringement, but isn't because of fair use laws. By way of analogy with self-defense laws, which would be a better legal defense argument if one shoots someone in one's home: (1) I didn't intend to to shoot the guy, or (2) The intruder had grabbed a kitchen knife and was coming at me with it, so I quite deliberately shot him? – supercat Aug 16 '20 at 11:17
@Trish: One of the problems with copyright law is that it exaggerates some lines between things one can do for free and expensive infringements. Suppose, for example, that I wish to personally perform a song and record ten copies of a song as a gift for some people, and decide that although I could do so legally for a total royalty payment of US$0.91 and a bunch of paperwork, I don't think that would be worth the hassle for me or the copyright holder who would be required to accept the $0.91 as payment in full. Would such a deliberate calculation make my action "willful infringement"? – supercat Aug 16 '20 at 11:27
@Trish: Under a literal reading of the copyright law, the copyright holder could demand thousands of dollars for ten "willful infringements" (I think $300 each), but the case would likely be thrown out as "de minimus", especially since publishers don't provide any convenient way by which I could being massively overcharged (from what I can tell, HFA would charge a minimum of $37.75 despite only being legally entitled to demand $0.91). – supercat Aug 16 '20 at 11:42
@supercat all true, however, we are not talking a de minimus case here, we are talking an app that does use various works of the copyright holder (statutory damage: minimum 750$ per infringement, times about 900 Pokémon - we are talking a minimum of 675,000 USD here with an upper limit of 135 MILLION USD for willful infringement), is for profit and usurps a market that is clearly established as something the copyright holder has a vested interest in. I don't see how one could claim Fair use, which makes the disclaimer a plain lie and a pointer to willfullnes. – Trish Aug 16 '20 at 11:49
@Trish: Of course, as I explicitly noted, a commercial app would fail fair use sufficiently thoroughly that a disclaimer would be unhelpful there, and I think willful infringement would likely be provable even without the disclaimer. For some other scenarios, however, I think a disclaimer could tilt the balance in favor of fair use. – supercat Aug 16 '20 at 11:57
@supercat the disclaimer would should then be something akin to "The use of material is for recognized fair use purpose and thus falls into the fair use exception"... actually, that would make a great question: How should a disclaimer for a genuine fair use be written, even if a disclaimer is unnecessary? – Trish Aug 16 '20 at 12:02
@Trish: The primary function I can see for a disclaimer would be to discourage anyone who would be inclined to purchase the copyright holder's work from regarding the disclaimed work as a substitute; as such, wording might be perhaps best focused on that. The wording of most copyright disclaimers is garbage, of course, but I'd apply Sturgeon's Revelation there as in many other fields. – supercat Aug 16 '20 at 12:24
@Trish: Perhaps what might be best would be a disclaimer "This work makes no pretense of being a licensed work, and should not be used in any manner that would materially infringe upon licensed works". If someone writes a piece of fan fiction and someone else, unbeknownst to the fanfic author starts printing and selling copies of it, the latter would be a willful and material copyright infringement, but not one "intended" by the fanfic author, and not one for which the fanfic author should be held liable. – supercat Aug 16 '20 at 12:35
@Trish: Thinking about it further, perhaps an accurate disclaimer (in cases of non-commercial fanfic, as opposed to commercial video games) might be "This work is not intended for wide distribution, and nothing beyond de minimus copyright infringement is intended." If someone writes a piece of fanfic that will be read by less than a dozen people, if that, odds are the original publisher would rather they just do it than waste the publisher's staff's time reading and responding to a request for permission). If the work goes viral contrary to the fanfic author's expectations... – supercat Aug 16 '20 at 14:57
...it would seem unreasonable to hold the fanfic author liable for a decision that would have been expected to save the publisher time and money. – supercat Aug 16 '20 at 14:58
@supercat it's de minimis, with i three times and no u. But why would the fan fiction author be liable for anything? Fan fiction doesn't generally infringe copyright. – phoog Aug 16 '20 at 15:29
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@supercat Your disclaimer should be similar to the one by vondranlegal... – Trish Aug 16 '20 at 15:43

score 12 · Answer 3 · answered Aug 07 '20 at 09:39

Neither the disclaimer nor the ads make any real difference. Using Nintendo-copyright images is potentially copyright infringement. Regardless of whether you earn money for it or put a disclaimer claiming that it's unintentional.

It's very unlikely that you'll see any repercussions from this, but it's not completely impossible. Nintendo certainly do go after fan-made games using Nintendo characters.

Beefster · Answer 4 · 2020-08-10T21:21:21.977

That disclaimer really doesn't do much other than make it clear that what you're doing is not official. It isn't going to protect you. Using a company's intellectual property without their permission is a risk. Period.

Is it infringement? Probably. Will you get sued? Probably not. Will you get a cease and deist letter? Maybe. I'm willing to bet you wouldn't because Bulbapedia and other fan wikis have been around for years with no action against them from the Pokemon Company or Nintendo, but that is not legal advice.

There's a long history of how intellectual property is treated in practice for fan works: a great deal of indifference until it's highly visible blatant infringement. Since IP is settled on civil grounds rather than criminal, it's often not worth the trouble to go after every fan artist and fan site for every little thing. They certainly can in most cases because IP law very heavily favors the rightsholder, but due to the huge blow that would be to their PR if they did it for every little thing, most entertainment giants reserve their C&Ds and DMCA ban hammers for the highly visible infringement cases and attempts to sell products using their IPs without express permission.

A good rule of thumb: if you think it might be infringement, it's probably infringement. Like it or not, IP is extremely protective and the way that fair use works means you should probably have a good lawyer ready if you seriously want to go down that route and defend it in court, since that's technically the only way that fair use can actually be applied. Outside of that, you can only count on the good graces of Nintendo to look the other way and hope that de-facto fair use is good enough. And if the C&D comes to your inbox? You're probably best off complying and then moving on with your life, no matter how "in the right" you believe you are. Defending fair use is almost certainly going to be more expensive than a takedown or licensing fee.

Keep in mind that even Weird Al gets permission before he does his parodies. He probably doesn't need to since parody is protected under fair use, but doing so avoids all possible legal hazards and lengthy court cases he'd probably rather not be involved with.

Some companies will react very badly if you infringe on their trademarks and copyright and you claim that you have the right to do so. The infringement is considered not important enough to bother, but the claim that your infringement is legal is very important because someone bigger might copy it. — gnasher729, Aug 09 '20 at 00:28
@gnasher729: Such a distinction is especially important with things like fan fiction and fan artwork. Being able to dream up and share new scenarios for character-based toys is part of what makes playing with them fun. If toy vendor #1 were to explicitly offer purchasers of its toys a limited license to produce and non-commercially share via social media fan fiction and fan artwork based upon them, provided that they made clear that they had no other license, and #2 made clear that it would aggressively crack down on any fanfic/fan-art, which do you think would sell more toys? — supercat, Aug 10 '20 at 19:13

If I add a copyright disclaimer to my app, am I exempt of charges?

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