Fair use and fan art

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  05 May 2013
Fair use and fan art

I have some questions about "fair use". I did read some of the info posted in another thread back from Dec 2012 that Roberto replied to and I looked up the fair use info at the US copyright office site, but I am having difficulty applying it to the realm of fan art. When I did a google search for fair use and fan art all I got was a lot of opinions but nothing that seemed legally sound. Can anyone point me to some legally definitive resources that would help enlighten me with this issue? Is it copyright or trademark that offers protection over the use of their characters in non-licensed fan work? Is all fan work that uses a protected character, that have not been licensed by the artist, really illegal but the holder of the IP just decides that most fan art is not worth pursuing for prosecution? Thanks.
  05 May 2013
I think the reason why there isn't anything definitive out there is that fair use rules are very ambiguous, and there haven't been any court cases to act as legal precedents when it comes to fan art. For the most part, IP holders are fine with non-profit fan art, and when they're not, fan artists don't have the resources to fight the cease and desist orders. Satire is unambiguously ok (even if it's for profit), but serious fan art is a lot harder to defend as fair use (the best defense I can think of is to argue that it counts as educational use). What is pretty safe to say is that the worse that could happen is that an artist would be forced to remove the work from online, because the IP holders would have a very, very hard time arguing that non-commercial fan art did them any financial damage.
  05 May 2013
Quote: I think the reason why there isn't anything definitive out there is that fair use rules are very ambiguous

I don't think that they're that ambiguous. From the US Copyright Office itself....

Originally Posted by US Copyright Office: examples of activities that courts have regarded as fair use: “quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.”

From the same document...

Originally Posted by US Copyright Office: Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair.

1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
2. The nature of the copyrighted work
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
4. The effect of the use upon the potential market for, or value of, the copyrighted work

As defined in the first quotation, fan art may be covered. Caricatures, for example, are fair use since they may qualify as parody or commentary. It gets a little dicey when you do a straight up reproduction, which doesn't exactly fit within those examples. Even so, most IP holders will tend to ignore you for the reasons outlined in the second quote.

If you're not selling the piece or it doesn't hurt the value of the source IP, they probably won't care. There are exceptions, of course. In the past, Lucas was extremely protective of the Star Wars IP and understandably so. I mean, if you're going to have Batman, Robin, & Alfred have a threesome then I'm sure that DC/WB will have something to say. For most fan art, as long as you don't cross certain boundaries of legality or good taste, you should be just fine.

Originally Posted by cgs-john: Is it copyright or trademark that offers protection over the use of their characters in non-licensed fan work?

"Copyrights are typically related to original works of authorship, like a book or poem or screenplay or music (lyrics or music), while a trademark relates to brand names, slogans and logos."

SRC:" Copyright vs Trademark - So What's The Difference?"

EDIT>>>> Copyrighting fan art is a tricky idea. You might own the work you created, but you don't own the original IP from which you derived the piece. IOW, you could probably (try to) stop somebody misusing your image/scene depicting Harley Quinn, but you can't stop them from using the character of Harley Quinn herself. At least that's the way I understand it.

Seeking legal copyright protection might be moot anyway since fan art will be for non-commercial, personal use only. Protecting it legally would only make sense if you ever foresaw a situation where you'd have to go to court and sue for damages. That wouldn't make sense here since you only own the image and not the source material. It's hard to prove damages for something you wouldn't or couldn't legally make money from anyway.

(Straight up fan art and parody aren't exactly the same since fan art implies a certain adherence to the original source concept. Parody, as we see on Simpsons or South Park, usually differs enough to make it new and original, yet stays close enough to the source IP to poke fun at it. It's a very fine line, sometimes resulting in legal action.)
DISCLAIMER: The views presented herein do not necessarily represent those of my brain.

Last edited by cookepuss : 05 May 2013 at 05:36 PM.
  05 May 2013
If you need a definitive answer for a matter of legality concerning fair use, then it would be best to get it from the horses mouth, contact a lawyer then there would be no issue of ambiguity.
  05 May 2013
This is from Josh Wattles - Southwestern University Law School copyright law professor, former IP lawyer for Paramount, & DeviantArt advisor. Hope this helps.

Originally Posted by Josh Wattles, JD: Q: Should I worry about drawing or writing stories about characters from my favorite books, TV shows and movies?
A: Not if it is a private activity.

Q: Does whether I sell them or not make a difference?
A: Yes. It’s not the best idea.

Q: Can I copyright my own fan art which is based on already copyrighted material?
A: It depends on how much of the original work you used and if the original work can be completely removed from the second work. When you file for a copyright you must disclose all pre-existing content that does not belong to you and you must have authority to use it. That’s a complicated question with fan art.

Q: Different authors, artists and companies seem to have different attitudes about fan art, with some encouraging it and others forbidding it. How can I find out which entities I might get in trouble with and who’s completely cool?
A: You can’t unless you contact the owners yourself and ask. There are some situations that are ok because the owner is encouraging fan art, such as in contests.

Q: Am I responsible for other people circulating my fan art all over the Internet without my express approval or even my knowledge they’re doing it?
A: Technically, maybe.
DISCLAIMER: The views presented herein do not necessarily represent those of my brain.
  05 May 2013
Thanks for all replies. especially Bert (cookepuss) for the details, especially the quote from Josh Wattles.

After adjusting my searches over the last couple of days as I have had time, and after reading your information I found some more information as well (though the most of the reading was not related directly to fan art) and it appears that characters are protected a little under copyright law, maybe more so under trademark law, and even a little under something called unfair competition law. I think I understand it a little better now. Thanks again.
  05 May 2013
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