Is copyright infringement if I use the image of a video game character in a homage spirit?
<p>Is it copyright infringement if I put the face of Mario (for example) in a piece of software (as a Easter egg) to celebrate Mario's Anniversary? This piece of software/product is distributed in Latin America and Europe.</p>

<p>Would it be fair use if...</p>

<p>a) The piece of software is a commercial product?</p>

<p>b) The piece of software has no commercial purposes?</p>

<p>In both cases, there's no intention to make money because the character is included in the software (like "Look! We have Mario! Buy our products!"). The intention is the celebration of Mario's Anniversary (like "Today is Mario's birthday! We like him! Wujuu!")</p>

<p>It would be, prima facie, both copyright infringement and trade mark infringement.</p>

<p>Copyright offers a fair use defence: this <em>may</em> qualify but it doesn't seem likely.</p>

<p>Trade mark has no such defence; if a reasonable person might believe that your game is in some way associated with or endorsed by the owner of the Mario trade mark (Nintendo?) then you have breached their trade mark.</p>

copyright fair-use