Is It Fan Art or Copyright Infringement?

Toying with the Men by JD Hancock from Flickr (Creative Commons License)

Toying With The Men by JD Hancock from Flickr (Creative Commons License)

I have the pleasure of speaking about copyright and fan fiction and fan art at Phoenix Comicon this year. It’s always fun to hear about the projects fans are working on, and to see that so many of them are mindful about the copyright. I wish I had more black and white answers for them about what they can and can’t do.

Fan fiction and fan art falls squarely into the murky realm of copyright and fair use. The owner of a copyright controls where and how their work is copied, displayed, distributed, performed, and what derivative works are made. Fan fiction and fan art can be derivative works but they also may be protected by fair use.

Fair use is part of the copyright laws that acknowledges the fact that many works are inspired by past art. This law allows artists to build on existing works in creative and innovative ways. One thing to always remember is that fair use is a defense, not a permission slip. There is always a risk that the copyright holder will claim you’re infringing on their copyright and you’ll have to basically tell the court, “Yes your honor, I used their work but it’s OK because . . . .”

When a court considers a fair use case, these are some of the main factors it considers:

  • Purpose and character of your use of another’s work (Is what you did transformative and did you do it for commercial use?)
  • Nature of the copyrighted work (What did you copy?)
  • Amount and substantiality of the copyrighted work used (How much of the original – quality and quantity – did you copy?)
  • Effect on the market (Would someone seek out the original and accept your work as a substitute?)

These are some of the main factors, but the court can consider others if it wishes. This is also not to be treated as mathematical equation. Regardless of how many fair use factors favor you, you can always lose.

For Phoenix Comicon this year, I wanted to create an easy mnemonic device that fans can use to remember the fair use factors; and here it is: PAIN.

P = Purpose and character of your use

A = Amount of the original used

I = Impact on the market

N = Nature of the work you copied

Another thing to consider if you want to use another artist’s work is how the copyright holder historically responds to fan fiction and fan art. Some encourage it; some are OK with it as long as you’re not making money off of it; some are OK with it as long as it’s not sexual (i.e., slash fiction); and some dislike all fan fiction and fan art and will try to lay the smackdown on you if you create it.

If you want to talk more about the legalities of fan fiction and fan art, come see me at Phoenix Comicon on Sunday, June 8th at noon. Both talks will be in North 130. I’m also doing a panel on Creator Rights on Saturday, June 7th at 10:30 a.m.  You can connect with me on TwitterFacebookYouTubeLinkedIn, or you can email me. You can also subscribe to the Carter Law Firm monthly newsletter.
Please visit my homepage for more information about Carter Law Firm.

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Comments

  1. hey slash fiction doesnt have to be sexual

    • Ruth Carter says:

      Thanks for your input. I’ve only heard “slash fiction” used to describe sexual stories and “fan fiction” to describe other works written by fans. Apparently others don’t use these same definitions.

Trackbacks

  1. […] based lawyer Ruth Carter talks about how ‘fair use’ applies in copyright, specifically fan fiction or fan art. While it helps protect work based on the fact […]

  2. […] There is no cut-and-dry, black-and-white mathematical equation that will definitively show whether what a person did constitutes fair use or copyright infringement. That is up to a court to decide based on the merits of the case. The court can consider any evidence it wants in these situations, but there are four main fair use factors. I created an acronym of the fair use factors when I spoke at Phoenix Comicon last year on fan art and copyright. The acronym for the fair use factors is PAIN: […]

  3. […] The law is complicated and there is no mathematical equation that will definitively show whether this is fair use. That is up to a court to decide based on the merits of the case. There are four main fair use factors. I created an acronym of the fair use factors when I spoke at Phoenix Comicon last year on fan art and copyright: PAIN. […]

  4. […] you’re interested in learning more about fair use, I wrote a post that includes a mnemonic device for the fair use factors for a panel I did at Phoenix Comicon on fair use and fan […]

  5. […] you’re not interfering with artists’ ability to benefit from creating their original art.) My mnemonic device for the fair use factors is […]

  6. […] content without committing copyright infringement. This aspect of the copyright law is called fair use, and it’s a murky gray area. Each situation needs to be evaluated based on its merits as there […]

  7. […] create similar works without violating the other’s rights. It is permissible under the concept of fair use to quote another writer and provide your own thoughts and others’ perspectives about the […]

  8. […] had the privilege of doing two panels at Phoenix Comicon this year: Fan Art/Fiction and Fair Use and Comic Book Creator Rights. The latter was a panel with writer/artist Josh Blaylock. He has […]

  9. […] in determining whether a use is copyright infringement or fair use (which I turned into the handy mnemonic device PAIN), but these are merely points of […]

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