You might be understanding "fair use" wrong... AFAIK it means you use it as a kind of parody, and it needs to be linked quite closely to the original (you need to be making fun of mario, not use mario to make fun of something else).

While fair use is most often talked about with parody, it does not necessarily mean fair use is only about parody.

Fair use is the ability to use a copyrighted material in an original work without getting the owner's permission in certain circumstances.

https://en.wikipedia.org/wiki/Fair_use

Using a Chewbacca image in a game basically fails all the prongs. It's purpose is entirely commercial (you have it as part of your game for decoration,not as a news commentary or educational tutorial about how the star wars universe is being marketed, or similar). Second, the nature of the work is entirely unrelated to your product; the use is entirely gratuitous. It is not like a scenes a faire, a stock item that needs to be included, you threw it in because it added value. Third, you used the entire work, the entire poster. You didn't have the bare minimum, you took it all. And fourth, the effect of the potential market is big. Star Wars makes the bulk of its money on merchandising and branding. Most businesses pay for it. I recently read it is somewhere around 4 billion dollars annually. You did not pay. If everyone used it like that, the damages would be billions of dollars per year.

This is actually a grey area.
US TV companies are risk averse, and US media companies are agressive so they all pretend that it's black and white.
The way that companies interpret the legislation is a far cry from the spirit of the law.

If I film a documentary about a particular person in the street, and a Mercedes drives past in the background, and a poster of Chewbacca appears on a wall, it's fair for me to include that footagr in my film without paying royalties.

However, my US TV producer might decide to blur those items either out of unwarranted fear (frivolous lawsuit protection), or out of greed ("I want to get paid if we've got product placement!").

Generally, showing a real-world product being used in it's intended way is completely fine.

If you showed someone performing lewd acts with the Chewbacca poster, or being killed by the Mercedes, they might try to claim you're attacking their brand and might sue for damages.

Trademarks are a buyer protection law. If the appearance of the Mercedes could confuse a consumer into thinking that your film is Mercedes affiliated, then you're infringing their trademark. Usually this would only apply to your packaging, as that's what the consumer is viewing when making this decision -- so you wouldn't prominently include that shot on the cover.

In novels, this is a well established tradition -- brands and products are used to create familiar settings.
Likewise in documentaries or any other footage shot in public places (except when fear/greed obsessed producers unnecessarily blur things).

If you're reproducing a real world setting or real props for a game, it falls into the same area.

However, I mentioned frivolous lawsuits above. Even if someone is wrong, they can still sue you and cost you a lot of money, even if they lose -- hence the corporate practice of risk aversion extending far beyond the letter of the law. And worse case, they may win even if they're wrong, costing you a hell of a lot of money (especially if they manage to assert that your insignificant game caused significant harm to their billion dollar brand).


EA used to pay licensing fees on weapons. Then they stopped because doing so is basically legal extortion/blackmail, and they shouldn't have to. They got sued. The case dragged on and cost EA a lot of money, so they settled (aka payed a legal ransom) and went back to their old arrangement quietly.

Having someone happen to drive by while doing street photography is radically different than a game. Every item in a game is explicitly added to the game as a conscious decision.

Game objects are not created by accident. An extra at a movie set may happen to accidentally expose an alligator logo on his shirt that wasn't supposed to show. In a game the logo only appears because a texture artist intentionally drew it there. In no way can it accidentally appear. In no way can a game creator claim it happened to be on site and was not added for its value.

If it was added to the game it was only done for its value. It might be commercial value or perhaps comedic value, somebody put it in to get some value from it.

Having someone happen to drive by while doing street photography is radically different than a game. Every item in a game is explicitly added to the game as a conscious decision.

Game objects are not created by accident. An extra at a movie set may happen to accidentally expose an alligator logo on his shirt that wasn't supposed to show. In a game the logo only appears because a texture artist intentionally drew it there. In no way can it accidentally appear. In no way can a game creator claim it happened to be on site and was not added for its value.

If it was added to the game it was only done for its value. It might be commercial value or perhaps comedic value, somebody put it in to get some value from it.

Whether something accidentally appears or not is not a valid defense...
What if the game world is created via photography of real places, just like the documentary example? If the environment is digitized in 3D, is that any different to digitizing an environment as a film? What if the 3D digitization process simply takes the video as an input and has no human intervention?
What if in the documentary example, I deliberately park a Mercedes in the background of a shot to make myself look rich? Or if it's a feature film and I decide that the actors should be driving a Mercedes?
What about in a book where I deliberately choose to use the brand "Mercedes" when describing the protagonist's car, to create an instant visual scene for the reader?

Copyright was not designed to stop these kinds of situations. It was designed to stop people committing plagiarism and product cloning (e.g. unauthorized reprints of books).
Copying the blueprints to a gun and using them to fabricate my own identical product line is copyright infringement. Only the creator has the right to reproduce the work.
Inventing a story when a character owns that particular gun is not cloning it.
Buying a guy to use as a prop in a performance is not cloning it.
Capturing that performance on film doesn't change anything -- the camera still doesn't clone the gun.
Capturing that performance in 3D still isn't cloning the original product.

Yes there are companies that will try and argue that these kinds of usages are infringing on their rights. But those companies are immorally bending the spirit of the law for their own interests. The smart thing to do might be to bow down to these powers, but the right thing to do is to resist such oppressive nonsense.

but the right thing to do is to resist such oppressive nonsense.

Unfortunately doing the right thing requires having a lot of money. You mentioned EA, how much did they spend on fighting the case then eventually settling? More than the average indie developer ever would see in a lifetime I'm sure...

What about in a book where I deliberately choose to use the brand "Mercedes" when describing the protagonist's car, to create an instant visual scene for the reader?

Your problem here would be Trademark infringement and not copy-write. It also depends on how the characters use the Mercedes.

If you say "Hodgman drove to work in his new Mercedes" then fine no problem you have identified Mercedes as a popular brand of car being used for the purpose it was intended.

If you said "Being a rich asshole Hodgman owned a Mercedes and ran every light in town". Then yes Mercedes could sue you for Trademark Defamation or Tarnishment.

If you implied that all cars were called Mercedes you could be sued for Trademark dilution. OK Mercedes isn't a likely candidate here but there are others like Hoover. So it would be more likely if you put "Hodgeman hoovered his living room" the potentially Hoover could sue you for Trademark Dilution.

So it is the same with guns. The first thing that people think of with a virtual 3D gun in a video game is that you are going to use that virtual gun to shoot a virtual human being. It is entirely possible that given all the anti gun sentiment in the US at the moment that Bushmaster for example would absolutely sue your ass if you tried to show one of their AR15s used in as anything other than a game hunting weapon.

Its also worth pointing out that in the film "Slum Dog Millionaire" Danny Boyle was forced to digitally remove any Mercedes badges because Mercedes Benz objected to seeing their luxury cars in a Bombay Slum setting.

Your problem here would be Trademark infringement and not copy-write. It also depends on how the characters use the Mercedes.

Nope. Trademark is an anti counterfeiting and consumer protection law. It exists to protect consumers from accidentally buying the wrong product. A consumer cannot accidentally buy a book when they actually meant to buy a car.

Your problem here would be Trademark infringement and not copy-write. It also depends on how the characters use the Mercedes.

Nope. Trademark is an anti counterfeiting and consumer protection law. It exists to protect consumers from accidentally buying the wrong product. A consumer cannot accidentally buy a book when they actually meant to buy a car.

That is the simple term. Owning a Trademark however is far more reaching than that. You are referring to Trademark Infringement protection but, like I pointed out once you own a Trademark then the Trademark is also protected against Trademark Defamation and Trademark Dilution.
You couldn't really Infringe a trademark in a fictional book but, you can quite easily Tarnish or Dilute it and for this get yourself sued.

This is also the method that hotel owners have managed to sue posters on Trip Advisor in the past. They can't sue everybody just for leaving a bad review but if they mention the name of the hotel in the actual review then they can and have sued and won damages for Trademark Defamation.