Fan art has become very popular among artists and pop culture fans, serving as a form of expression and admiration for beloved characters and stories. While it's a way for fans to showcase their love for their favorite movies and series, the legality around fan art remains a gray area that often leads to confusion.
What is fan art?
"Fan art" is when people create their own artwork based on characters and/ or settings from someone else’s work, such as movies, TV shows, comics, video games, or books. This can include copying an existing work or making their own version of said work. There are different forms of fan art like drawings, paintings, and digital art.
Copyright Infringement: The Core Issue
When fans create fan art content, based on copyrighted characters, they may unknowingly (or knowingly) be infringing on the original creator's rights. While some owners or rights holders of the original work may tolerate or even welcome certain types of fan art, others are strongly opposed to it. Regardless of whether they approve or not, creating fan art without written permission or a proper license is illegal. Sometimes, the original owner might send a cease and desist letter to stop the fan art, or ask for payment, but, not all owners bother with this, especially if the fan art doesn't generate much money.
The Problem with Derivative Works
Fan art is a form of derivative work. According to the U.S. Copyright Law, definition from 17 U.S. Code § 101: “a “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted”. Copyright laws apply to derivative works, and the original copyright holder has the exclusive right to create or permit derivative works from their original creation.
If you make something new, inspired by another work without copying it directly, that might not be considered infringement. However, if you add your own twist to an original work, it can still be seen as infringement. The line between copying and taking inspiration is blurry and the more your work looks like or refers to the original, the higher the chance it infringes on the original work.
Fair Use: An Intricate Balancing Act
While some argue that fan art falls under fair use, it often involves the reproduction of copyrighted elements, potentially leading to legal issues. Fair use is a legal doctrine under U.S. copyright law that allows limited use of copyrighted material without permission, as long as it meets specific criteria. It aims to balance creators' rights with the public’s interest in using works for purposes like commentary, criticism, education, research, or parody. Essentially, it serves as a defense if you're sued by the copyright holder. If it does fall under the fair use doctrine this type of work may not be considered infringement; however, determining whether fan art qualifies as fair use can be tricky. Simply labeling something as a parody or satire doesn't automatically mean it is one. For parody or satire to be protected under fair use, it has to meet specific criteria, such as why and how the copyrighted work is being used, what kind of work it is, how much of it is being used, and how it affects the original work's value. Ultimately, only the judge determines whether something qualifies as fair use, and this decision can also depend on the judge's understanding of the topic. For more on fair use, you can read our post “The Myths and Truth About Online Images”
Commercial Use Complications and Market Displacement
If an artist sells their fan art or uses it to promote their own products, it can have legal implications. Commercial use of fan art is more likely to be viewed as copyright infringement, as it can impact the market for the original work. Even if you're not earning money from your art, it can still be an issue if it affects the original creator's ability to make money if your art is seen as a replacement for the original work and makes people less likely to pay for the original. Fan art can potentially cause market displacement. Market displacement refers to a situation where the use of a copyrighted work harms the market for the original work. This would be a key factor in determining whether the use of the copyrighted material in fan art qualifies as fair use.
Trademarks, on the other hand, add another layer of complexity beyond copyright issues. Trademark law protects names, logos, and symbols associated with a brand, and fan art that uses these elements can risk legal trouble if it causes confusion or harm to the brand’s image. In the U.S., trademark law is primarily governed by the Lanham Act (15 U.S.C. § 1051 et seq.), which protects trademarks, service marks, and other commercial identifiers. If fan art includes a trademarked character name or logo, fans might assume it’s official merchandise or endorsed by the brand owner, leading to possible trademark infringement. Even without confusion, using these trademarks in ways that damage the brand’s reputation could lead to claims of dilution. Some companies embrace non-commercial fan art, while others enforce their trademarks to protect their brand identity.
Suggestions:
Know your rights: Familiarize yourself with copyright and trademark laws.
Assess the Risks: Research the potential risks involved in creating fan art to understand what you’re taking on.
Differentiate Between Copying and Inspiration: Be mindful of the line between directly copying and drawing inspiration in your work.
Check Enforcement Activity: Research how actively the original creator enforces their rights.
Seek Legal Help if Needed: If you find yourself in a challenging situation, consider consulting a legal professional for advice.
While the creation and sharing of fan art are deeply based on fandom culture, the legal factors surrounding it remain complex. Navigating these areas of copyright law requires careful consideration of the potential consequences it can have for original and fan art creators. As fans continue expressing their creativity through fan art, it's essential to find a balance that respects the rights of both creators and admirers.
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