Let’s say I took a bunch of different characters from various media; a head, 2 arms, 2 legs and a torso, glued them together and then traced over to create a more homogenized image… Is that a new thing? A remix? Or ripping other’s work off?
I’ve just had this idea for a while (wanna try making my fursona from photos of a dog for the head and my own body for the body) and got curious if this proposed technique was done using others’ material would be a violation or if it would be more like a remix.
That would be an argument made in court, pursuant to the balancing test. You would be arguing that the use wasn’t actually infringement. Thats how fair use is determined.
That’s like asserting that a self-defense claim is an argument that you didn’t hit the other guy. You really did hit him (copyright infringement / assault), but you have a defense that admits the literal facts but absolves you of liability (fair use / self-defense.)
You don’t need to argue self-defense if you can convince the court that you didn’t actually hit the other guy.
The OP is asking about using portions of copy written works. Therefore if those works were used or not wouldn’t be at issue. What would be issue is if the use is fair use. Which again, goes back to the balancing test which would be decided in court if the rights holder pursues it.
That is only true if the pieces were originally protected by copyright, the pieces extracted were substantial enough to retain that copyright, and their use in creating a “trace” model was enough to convey that protection to the final work.
I don’t know why you keep insisting that fair use has to come into it, or that a fair-use argument is not worthwhile outside of a court. (Sure, a judge would apply the binding precedent to determine if a fair use defense applies–but that’s true of every other part of the tort as well.)
Most claims of amy sort, copyright or not, are settled long before a judge gets involved.