Can I File a counter Notice for fanart takedown?

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Should I send a counter notification against a gaming company who filed IP infringement and takedown of fanart that I created and sold on Etsy?

October 22, 2025

Liz

41,505 satisfied customers

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Under U.S. Copyright Law (Title 17 of the United States Code), fair use — defined in 17 U.S.C. § 107 — allows limited use of copyrighted material without permission from the rights holder, but typically only for non-commercial purposes such as criticism, commentary, news reporting, teaching, or research.

When copyrighted material is incorporated into artwork that is sold or used for commercial purposes, that use generally falls outside the fair use exception. Even if you created the new work yourself, the underlying copyrighted elements remain protected. To legally sell or distribute such artwork, you would usually need to obtain a license or written authorization from the copyright owner. Failing to do so could constitute copyright infringement under 17 U.S.C. § 501, which allows the rights holder to pursue damages or injunctions.

It may be worthwhile to contact the copyright holder to request permission or negotiate a licensing agreement, which would allow you to sell or display your work lawfully while respecting the original creator’s rights. Have you tried to negotiate with the copyright holder?

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Should I send a counter notification against a gaming company who filed IP infringement and takedown of fanart that I created and sold on Etsy?

Lexi, Chatbot

I understand your concern. have you received a formal notice of ip infringement from the gaming company?

Yes.

Lexi, Chatbot

Can you provide more details about the fanart you created and sold on etsy, such as the specific content and how it relates to the gaming company’s ip?

It’s a mousepad of one of the male characters, with extra padding where his chest is to resemble pectorals. I created it in Blender, which is a 3D program. The character is from a game this company owns, but the art of the character was created by me and does not mimic any merchandise that the company sells at all. I also altered the character’s appearance in ways that do not appear in the official game.

Lexi, Chatbot

Is there anything else the ip attorney should know before i connect you? rest assured they’ll be able to help with your ip infringement issue.

Yes.

Liz

Hi there! My name is Liz and I’ve been an attorney for more than a decade, and I am here to assist with your legal concerns. So I can best help — did you ever seek any permissions to use the character?

I did not. I assumed I was covered by Fair Use.

Liz

I haven’t. I don’t know how to do that since it’s a large company.

Liz

Most large gaming companies do have a department for licensing. Their legal department should also be noted on the DMCA takedown.

It looks like they used another company to represent them called Tracer, which is an AI brand protection company — is that who I should contact?

Liz

That can be an excellent point of contact.

Okay, I can try sending an email to them asking to negotiate. Doing that won’t end in litigation unless I file the counter claim, right?

Liz

It should not, and offering to settle is also protected in court.

Are you able to provide any language or resources for how I should phrase my negotiation request? No worries if not.

Liz

Since this was a mistake, you could be clear that you thought it was covered under fair use. If you haven’t made any sales, that can also be brought up.

Okay, thank you. I don’t think I have any other questions for now.

Liz

You’re very welcome. Have a wonderful Fourth of July!

Thank you, you too.

Liz

41,505 satisfied customers

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