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.

Video Games and Copyright - 21st Century Art

Video games have surged to become the new pass-time of choice for millions of people, with sales of new titles like Grand Theft Auto V reaching a billion dollars in sales in its first three days alone. This clearly demonstrates just how important video games are in the sphere of commerce, and therefore the sphere of intellectual property. Even with its immense popularity video games have still been largely left out, at least in terms of specific protection, in most jurisdictions. In addition to this the sheer complexity of video games as copyrighted works presents some issues.

A recent study prepared for the World Intellectual Property Organization attempted to shed some more light on this matter by looking at a variety of jurisdictions and the protection they offer for video games. The study clearly is weighted towards civil law countries (included were for example Denmark, Germany, China and Russia), but common law countries such as Canada and the United States were included in the study.

Super Mario - a modern literary hero?

Copyright protected subject matter in video games shows exactly just broad the category itself is when dealt with under copyright. Three distinct elements can be found in video games, along with their sub-categories respectively; audio elements (e.g. speech, music, sound effects), video elements (e.g. images, animation, text), and computer code (e.g. game engines, ancillary code, plug-ins). In addition to the above any  literary works would be covered as well, including scripts, maps and characters. However the study does point out that "...the real issue, and one of the objects of this study, involves analyzing the legal protection of video games as single, unique works of authorship, since it is irrefutable that the individual elements included in video games can deserve independent copyright protection". The objective of the study is not to introduce possible legal reform or frameworks to protect video games, but to increase awareness to all possible stakeholders, through which potentially exact change or better protection for video games.

In Canada video games are not protected by themselves under the Canadian Copyright Act, but predominantly as a computer program. This would still include all the other copyrighted parts individually, and potentially as a literary work as well. In addition video games could be protected as a 'collective work' as a sum of several distinct parts by different authors. In the US video games would fall under 17 USC § 102, although not expressly mentioned, should it fulfill its specific requirements. Video games have shown some problems to the American judiciary, as is pointed out by the study, but can be said to fall under the protection of copyright.

Always pointing fingers

So this begs the question: why should there be specific protection for video games? Arguably the protection offered to them as it stands can be said to cause some uncertainty. If a video game is not protected as a whole, if individual elements are not deemed protectable the entire game's integrity as an artistic work would clearly be undermined, as the pieces making the game arguably constitute that very artistic expression as a part of a whole. Even in the case of Brown v EMA, the US Supreme Court saw that "[l]ike the protected books, plays, and movies that preceded them, video games communicate ideas-and even social messages-through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world)..."; clearly demonstrating this very point. Video games as a whole are a work which should be protected, not merely a collection of pieces which only merit protection by themselves.

The study is an intriguing and wide-scoped view of the sphere where video games currently reside, and do highlight some issues in a variety of jurisdictions, not to mention their protection in the world as a whole through inconsistencies in approaches. As the medium has become very prevalent, this matter should be addressed further and provided with explicit protection not as a mere collection of different forms of expression, but as a viable form in itself.

Retrospective - Novelty in Patents

Invention is often building on older inventions or techniques, adding, changing or modifying it to suit a new application. As Isaac Newton poignantly pointed out in his thoughts about his progress in many fields: "If I have seen a little further it is by standing on the shoulders of Giants." As said, invention often needs a springboard to be able to jump to new heights, although this should not enable the abuse of older inventions and claiming it as your own. A preventative measure in the world of patents is the requirement of 'novelty' which mandates that the invention one is seeking to patent has to not have existed in any prior art; to put it bluntly it has to be new. Different countries in the common law take different approaches to novelty, which merit some explanation.

An inventor's motto

In Australia novelty is a requirement under the Patents Act 1990, which sets out that any patentable invention has to be novel when compared to prior art that existed before the invention was being patented. It will only be compared to publicly available information, although legislation pertaining to trade secrets might still apply. This is determined through the 'reverse infringement' test, formulated in Meyers Taylor Pty Ltd v Vicarr Industries Ltd. In the judgment Justice Aickin saw that "[t]he basic test for anticipation or want of novelty is the same as that for infringement and generally one can properly ask oneself whether the alleged anticipation would, if the patent were valid, constitute an infringement". This would have to be assessed based on all of the integers of any one of the patent claims and whether they would infringe any existing patents. If none of the claims infringe any existing patents, it can be deemed to be novel and therefore patentable. Should all, or the essential, features of the invention which the patent is sought for be disclosed in any prior art which is publically accessible, the invention would be deemed to not being novel and would not be patentable.

In Canada the test for novelty is set out in the Canadian Patent Act, where an invention is defined as "any new and useful art, process, machine, manufacture or composition of matter, or any new and useful improvement in any art, process, machine, manufacture or composition of matter". As stated in the Act, the invention cannot have been disclosed to the public in Canada or anywhere else. This requirement is essentially the same as the one relating to prior art in Australia. As said above, this does not mean the invention has to be wholly new, but can be built on older inventions should it fill the other requirements for patentability. 

Necessity is the mother of all invention

In the United Kingdom the concept of novelty is set out in the Patents Act 1977. Under the 1977 Act an invention is new "...if it does not form part of the state of the art". This, again, would be the case should the invention be made available to the public prior to the lodging date of the patent application. The case of Synthon BV v Smithkline Beecham plc set out the test for novelty, distinguishing between two requirements which have been accepted by the judiciary; prior disclosure and enablement. These two requirements were treated as a single matter, however were separated by Lord Hoffman in Synthon. Prior disclosure echoes the same principle as Australia's approach to novelty, being an assessment of potential infringement due to any possible prior disclosures to the public. In Lord Hoffman's mind however, this could not merely be a matter of possibilities  but infringement would have to be entiled; or in other words, the invention would be an infringement. If other possibilities exist, for example an accident as to the same invention, infringement would not be entiled. Enablement, in Lord Hoffman's assessment, meant that if any ordinary skilled person could create the invention which has been disclosed prior. If the invention does not fall into either, the invention can be seen as novel under the 1977 Act.

In the United States novelty is defined under 35 USC § 102. The American approach is much akin to the Australian and British approach; one which relies on prior art. If your invention has not been patented before, published in a printed publication, in use or sale, or made available otherwise, the invention is eligible for a patent and considered novel. Since the introduction of the America Invents Act, the US has moved from a first-to-invent system to a first-to-file system, This in itself does not change how novelty is assessed in patents in the US, but has changed the dynamic significantly within the system regarding new inventions.

As one can clearly ascertain, novelty is not a simple concept, and can be a time consuming consideration for any given patent handling body. The novelty of any patent can be contested if it is later found out prior art existed, even if the patent is given after the patent body's assessment. From a common sense perspective it is completely sensible, and does protect the legitimate interests of all inventors in attempting to keep all new inventors from merely rehashing old inventions in the guise of novelty.