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.

Tattoos and Copyright

Tattoos have been a part of culture and expression since as far as 5200 years ago, showcasing the importance of self-expression through various markings and its transcendence through cultures and time. Tattoos vary from simple pictures, such as small birds or flowers, to hugely intricate large tattoos covering most, if not all, of a person's visible skin. Although arguably having become more of a diluted vehicle of expression in modern times, tattoos are still seen as an important way to express one's heritage or culture for people's such as the Maori - but could tattoos infringe copyright?

The pinnacle of tattoo originality

Currently there is no concrete precedent as to tattoos and copyright; however there are instances which might argue that tattoos could potentially fall under copyright. Cases relating to Mike Tyson's (in)famous face tattoo depicted in the Hangover 2 and a lawsuit over Ricky Williams' tattoos which were depicted on the cover of an NFL game in 2004, have all been settled prior to litigation, showcasing a clear reluctance for taking the matter to court. These two cases are by no means the only ones of their kind, but clearly indicate there is value in protecting tattoos. In a recent turn of events the NFL Player's Association has brought up the possibility that players' tattoos could bring copyright infringement lawsuits, further highlighting this potential issue.

Most countries in the common law, such as Australia, the UK and Canada do allow for 'artistic works' to fall under copyright, often encompassing drawings which potentially could contain tattoos within them. With the NFLPA and others raising possible issues relating to tattoos, one can easily argue that a case over tattoos and copyright could carry merit and would be worth consideration by the judiciary. Clearly the power is in the hands of the tattoo artists and their discretion as to whether to sue for copyright infringement in the event that their work is displayed in television, movies or even video games.

Some countries do prescribe provisions which offer protection from copyright infringement in incidental inclusion in television and movies. Australia and the UK for example have such provisions, clearly avoiding copyright infringement should any tattoos be displayed in a television show or a movie purely through their incidental inclusion. This is not to say it offers full indemnity, as in the case of the Hangover 2 the inclusion of the tattoo design was clearly intentional and a vocal point of the plot, possibly not falling under such protection provisions. In addition to this the provisions do not mention the possibility of incidental inclusion in video games, opening up any claims for instances in that particular medium.

Is this original anymore?

What has to also be said are possible hurdles relating to tattoos and originality when claiming for copyright infringement. Cases relating to arguably generic designs, a good example of which is case which dealt with an anchor design on Kate Moss' hand in an advertisement, raise questions whether these designs could actually be protected by copyright. If a design shows no clear ingenuity or inventive spark, one could argue that these designs would not be protected; however more intricate, individual designs could be protected.

Tattoos do present an interesting dilemma when it comes to copyright, and are a subject matter which has not been considered by either the legislature or the judiciary specifically. Whether these issues will ever be taken to court is a long-shot, as the cost of settling is clearly less than litigation, and materials such as tattoos can easily be edited out of pictures, videos and other content which might contain them, therefore avoiding any infringement claims. This writer personally would love to see the matter argued at court, but this seems like an unlikely event at best.

Source: Bloomberg Businessweek