22 February, 2015

Art Anew - Fan Art and Copyright

A big aspect of the modern scene of artistic expression is fan art. This, to the uninitiated, is using prior existing art, be it movies, music or pictures, as inspiration for your own works, often using the same characters, themes or settings, and constructing your own take on the heroes and heroins of your favorite stories. Prima facie a very innocent activity, and potentially quite beneficial for both parties, fan art is an important part of the creator and audience interaction; a form of silent appreciation and discussion on different views and fantasies of said art works. Even with this in mind, fan art does have its greyer areas, especially when it comes to profitability and potentially gaining from the fame of a work, effectively riding its coattails to success. A great example of fan-art-turned-success is the current hit movie 50 Shades of Grey, which (by many accounts) started its humble life as fan fiction of the popular book/movie franchise Twilight under the moniker "Master of the Universe". Where there is money there are lawsuits to be had, which begs the question: does fan art infringe copyright?

As has been discussed on this blog many of times (for example here and here), copyright protects expression, not ideas. Therefore a fan is more than capable of writing a story using similar elements (putting things simplistically), and won't necessarily be infringing the copyright in the original work your fan fiction or art draws from, or even illustrate those stories, especially if no official illustrations exist. Even with major differences (but not enough to be able to distinguish the work completely), what usually draws the line is the commercial use of your derivative works, at least in the interest of the copyright holders, as for most instances fan works just aren't worth the hassle of taking down or demanding licences for; after all, it's free marketing for your works.

This writer's take on a popular movie character
In terms of fans' derivative works, fair use or fair dealing offer the best avenue of protection should you choose to create your own works from existing copyright protected material. In the UK, under the Copyright, Designs and Patents Act 1988, fair dealing protects a finite set of categories under which the use of copyrighted material can be used without infringing the rights given. These categories, including use for criticism and review and for the creation of personal copies, don't offer a category through which to create new, derivative works. A new exception for use in terms of parody or pastiche (discussed here) clearly would allow for the use of copyrighted material for legitimate parody purposes, however leaving a non-parody based use outside of its scope. Overall, the UK leaves fans in the dark, at least in the fair dealing side of the law. What fans can argue, however, is that their work is a new, original artistic work, meriting protection in itself, much like the original works they've branched out from. Again, this is a rough road to travel, as the characters, settings etc. would have to differ quite significantly from the original piece, or become a story wholly unto its own in its development; something, which would be much harder to prove.

There is hope for fans within the common law, as the scheme for fair use in the US and Canada (more on the newer fair use considerations in Canada can be found here), offers a much more robust and flexible approach to the use of copyrighted material. Fair use allows for the use of copyrighted material assessed through four criteria: the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work.

If the fan creation in question is created for the purpose of entertainment, i.e. to share with other like-minded fans, and isn't solely to gain from the popularity of the work in a commercial sense (although this, by itself, doesn't negate fair use, so works can be sold and fall under fair use), most likely the work will be fine under the first criterion. If the work where the fan piece derives from is a lesser known, even potentially a non-commercial piece, the more likely it is for the fan piece to not infringe it. The second criterion is hard to assess in itself, without having a concrete example, but offers an insight into an important part of protecting the copyrighted work; the more commercial and/or successful it is, the more likely it is that the potentially infringing fan piece actually is infringing on its copyright. The third criterion is a case-by-case assessment of just how much the fan piece takes from the original work, i.e. how substantial is its use of the work in question. The less elements you use, the less likely it is to infringe, at least prima facie. Finally, the last criterion looks at the effect on the original work. Again, this is much harder to assess without a concrete example; however one can argue that the more commercially successful the fan work is, the more likely it is to affect the value of the original work. It has to be noted that fan pieces existing outside of the remit of the commercialization of the work probably will not infringe the original work, i.e. a song written about Harry Potter, not having been used for the purposes of the films or books.

In Canada the Copyright Act also allows for the creation of non-commercial user-generated content (discussed here) giving fans a real avenue to use works for their own purposes so long as the use isn't commercial. Where the line of commercialization is drawn is hard to say yet, but this writer speculates that small commercial aspects of the works could be forgiven. Other than that, fans are welcome to create their own content in Canada without fear of being sued for copyright infringement - a fact that the UK sorely has missed in its copyright legislation.

Overall the US and Canadian schemes offer much more flexibility and use of copyrighted works for derivative fan works, so long as they comply with the above. This writer for one believes that fan participation should be encouraged by the legislature, yet still protecting the legitimate interests of the copyright holders by not allowing for those works to be overstepped by the (overt) commercialization of fan works, such as an unofficial knitted hat being sold on Etsy. A balance has to be struck between freedom of expression and the protection of legitimate commercial interests, even in the domain of derivative works.

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