Note for the author: I'm pretty critical of your use of outside designs in this work throughout this post but I want you to know that you're clearly a dedicated author who's put a lot of creativity and work into this otherwise. I do think that there are a lot of issues with it, but you should try again. You're only starting. I know that you can do it eventually, and so do you.
I decided to do some research into ENA and the actual copyright risk here. As much as I think it's very, very lazy for the character to look so much like ENA, it really is mostly the face being divided in two with a smile on one side that looks like ENA, the rest of the design is original clothes. So it's not like there's no original effort to be found here.
My first thought was that it looks about as much like ENA as ENA looks like the Mac finder icon.
But on second thought of course that's not quite true, it looks like ENA because of the eye shape and open smiley mouth too. Really it's influenced in the case of Joel G by the painting "Girl before a mirror" by Picasso. So we've got distinct clothes and colouring, but a recognizable face being taken and used.
Is ENA a copyrighted character?
I'm going to go with US copyright law because I can find info on it, even though I'm not an american and I don't think Joel G is either. But the wiki could be said to be based in America with its American head admin and AWS infrastructure (though wikidot is headquartered in sunny Warsow they outsource hosting to an American company), and of course ENA is distributed through YouTube based in the US too. Obviously remember that I'm not a lawyer, I'm a scutoid. A fly, hot and sexy scutoid.
So via Wikipedia we can do two fun tests to discover if ENA is copyrightable.
The "well delineated" test
ENA is very well delineated in my opinion. The idea here is that the character has to be well developed, not just a basic idea of some schmuck off the street but a very original character. This character is well known and iconic because of her original personality and incidents that happen around her, and she's easily recognizable.
The "story being told" test
This test asks if the character is central and very important to the story being told, or if they're just pawns in the game of storytelling. Well, yeah, ENA is the main character of the story of each ENA film. So there you go.
Seems clear that ENA is under copyright protection in the United States
So is this character actually infringement
Well, this character doesn't have a personality or really figure in the page at all. I only skimmed it, but as far as I can tell, the only time this non-named character is mentioned is when a character goes into the room and sees the character on the left in the top illustration (also seemingly copied from the main character Madotsuki from the game Yume Nikki, referred to as a "pixelated girl" implying the RPG styling not actually seen in the illustration) alongside our ENA-like character who goes unnamed as well. The ENA girl literally just leaves the room immediately and I can't see anywhere that she returns at all.
So, there's nothing to analyze as far as if this girl acts like ENA.
But you don't have to tell a story with a character in order to infringe on its copyright, using it at all is copyright infringement — for example selling "E.T." telephones was copyright infringement per Wikipedia. But is our ENA-like girl seen here actually similar enough to ENA that we should consider it copyright infringement potential?
"Substantial similarity"
After it's been determined that the character is worthy of copyright, which we assume it is, the courts would then check for "substantial similarity" because direct evidence of copying doesn't usually exist. I mean, in this case it actually could exist, but I don't want to go looking for it so let's see.
These are some factors courts could use, per Wikipedia:
- Did the person have access to the material: Yes, this is an internet user interested in the Backrooms, most such people have seen the wildly popular ENA cartoons which cater to similar aesthetic tastes.
- Uniqueness, intricacy, or complexity of the similar sections: The similar sections (face, and even the angular torso with dungaree-like lines) are extremely similar with the same drawing style used as well, and they're not extremely simple either though of course it's not the most complicated thing
- If the plaintiff's work contains an unexpected or idiosyncratic element that is repeated in the alleged infringing work: The face divided into two halves with a mouth on one is one such idiosyncratic element
- The appearance of the same errors or mistakes in both works: Not applicable, there are no errors
- Fictitious entries placed by the plaintiff that appear in the defendant's work. For example, fake names or places are often inserted in factual works like maps or directories to serve as proof of copying in a later infringement case since their appearance in a defendant's work cannot be explained away by innocent causes: This isn't applicable cause this isn't some factual thing
- Obvious or crude attempts to give the appearance of dissimilarity: The added accessories over the basically exact same character design could be described this way if I were very mean.
So, I'd say this does probably qualify. Of course that would really be for a court to decide but yeah.
Fair use
There is also the question of fair use in US copyright which would probably be the actual test this goes up against in a court of law — imagine — and it might actually pass that test. Looking at the 4 criteria there
- The purpose and character of the use favours fair use here cause this is a non-commercial use on a fan-wiki in an amateur piece of writing
- The nature of the copyrighted work favours infringement cause ENA is a highly creative and original artwork of fictional nature
- The amount taken Almost all of this character design is taken so it's not great
- Market harm potential This has no potential for any market harm to Joel G, it's not actually a competing product to any ENA thing.
It's not cut and dry. I think it could pass like this because the purpose and character can be weighed heavily but I am not a lawyer so I just can't say.
Because of the fact that nobody can really say for sure we on the wiki ignore fair use in our policies of what we'll allow people to post because we'd rather just not deal with it at all (for the most part, we do allow people to insert quotes from literature as fair use for example) and I think it should stay that way. So I don't think, overall, that this detracts from the idea that this shouldn't be cleared.
Does this really matter?
Not legally for us, I mean, Joel G is not suing this person and they certainly aren't suing any of the rest of us, lol. But we should respect copyright even without risk, in my opinion, to the best of our ability and, you know, not lazily copy existing designs. Especially when it seems two designs were copied. And to be honest I think I've seen a very similar character to this flower on YouTube before as well in some kind of a weirdcore thing but I don't remember its name so I'm not really gonna go investigating. In good faith, I'm sure this one was probably come up with originally for this based on the common influence of images with eyes edited over flowers.