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.
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