I believe he expects to 'get away with the legal issues' by using non-descript characters from the game that are not the original characters copied and put on cards, but ones he's created in tribute. There is nothing damming about using a gold box with a question mark inside because it does not infringe on any copyright image as it could not be copywritten by Nintendo. Still, it borders on possible lawsuits that if nothing else would prevent the deck from being made due to the costs of having to prove that he has the rights to produce the deck.
Here is what I posted in his comments:
Is there any risk of Nintendo shutting this project down for image infringements? I backed a superhero project that was shutdown and eventually cancelled even though it was the artists own work, but it represented familiar characters. I like the idea of this deck, but do you have pictures of the actual cards with their indices?
And his response:
The card game of Go Fish, or Fish, does not utilize the indices (card numbers) for gameplay. As a design choice for the intended game format, I left the indices off of these cards.
As far as the copyright question goes, it is pretty well covered in the "Risks and Challenges" Section of my Kickstarter Page. I will also be creating a more in-depth FAQ later today. The short answer though is yes, yes they can cancel my project at any time, but I have every indication from watching other Nintendo-themed Kickstarters and other fan-creations that this is only a slim chance.
These are not playing cards, these are cards for intended game play.
Cute, that subtle non-difference...
Simply put, if I name a deck Super Mario Whateverthehellgameyouwant, then take original images of existing characters from the Super Mario game done in the same, exact "8-bit" style in which they originally appeared in the game, I'm in copyright violation. Companies pay to license these sort of things. USPC will refuse his deck if Nintendo doesn't slap a cease-and-desist on him first, because he doesn't own the rights to the title or the characters. Nintendo actually began operating as a PLAYING CARD COMPANY long before they were making the Famicom or Super Famicom (predecessors to the Nintendo Entertainment System {NES} and Super Nintendo Entertainment System {SNES} made for the Japanese market).
He's probably referring to the "Deck of Legend" deck, which had either its second or third printing with USPC, when he talks about how other projects have done what he's doing. But there's a big difference - that deck's "homage" images of "Legend of Zelda" characters were a) not labeled and b) more unique despite the similarities, plus the deck itself didn't use a Nintendo copyright in the name. Even the reproductions of the symbols like hearts, swords, rupees and tri-forces have more than enough prior art that Nintendo couldn't claim them in the first place. That deck, as a result of conscious decisions by the artist, flew under the copyright radar. It could practically be claimed as folk art.
I have no idea what his references to a lack of indices mean in terms of him having a legal leg to stand on. Playing cards originated in 9th-century China, reached Europe in around the 14th or 15th century where they were changed to a prototype of what we use today - and have only had indices for less than 150 years. And none of that has any relevance to his use of Nintendo's brand name and characters.
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