Fan art, according to Wikipedia, is an artwork that is based on a character, costume, collage, item, or story that was created by someone other than the artist, such as a fan, from which the word is derived from. Usually, it refers to fan labor artworks by amateur artists, or artists who are unpaid for their fan creations. Originally, fan art was used as a term to designate the work of an artist who was not necessarily professionally employed or pursuing a career in a field of genre arts, but simply created work based on topics of which he or she was a "fan." Wikimedia, on the other hand, defines fan art as an art describing unauthorized artistic representations of elements or characters in an original work of fiction, usually created by amateur enthusiasts for their own amusement. Fan art is created by someone other than the owner of the intellectual property rights in the original work or a permitted licensee. Jomo Thomson, in his online article entitled “Does fan art violate copyright?” defines fan art as a drawing based on a character, costume, or location that is made without permission by the original creator.
In the US, fan art using settings and characters from a previously created work could be considered a derivative work, which would place control of the copyright with the owner of that original work. Display and distribution of fan art that would be considered a derivative work would be unlawful. Since fan art can be considered a derivative work, therefore most fan art is an infringement
However, American copyright law allows for the production, display and distribution of derivative works if they fall under a fair use exemption. Fair use protects certain uses that would otherwise be an infringement. To find protection in fair use, a second work must be an artistically transformative use of the first, not have a great economic impact on the first, and not take too much of the first. A truly transformative work, therefore, may be protected. Fair use is a vague doctrine, giving courts great freedom in application.
In an online article entitled “The Messy World of Fan Art and Copyright” by Jonathan Bailey on May 13, 2010, he said that fair use may protect some fan creations from being an infringement, but that is handled on a case-by-case basis, looking at the facts of the actual work.
Sarah Says, in her article “Fan Art and Fair Use: One Truth and Five Myths” enumerated four factors to be considered in determining whether or not a particular use is fair. These factors are the following:
1. The purpose and character of the use, including whether such use is of commercial nature or is for non profit educational purposes: Non-commercial uses are far more likely to fall under fair use than commercial uses. Regardless of whether your work is commercial or non-commercial, a court would also look at whether the work is transformative, whether you alter the "expression, meaning, or message" of the original content through your use of the copyrighted material. Parody and critique are transformative uses, but they are not the only examples of transformative use. When determining whether a use is transformative, we want to look at the how the new use impacts our view of the original work;
2. The nature of the copyrighted work: How you use a copyrighted work matters, but so too does what copyrighted work you use;
3. Amount and substantiality of the portion used in relation to the copyrighted work as a whole: How much you copied can also be a factor. There's no rule about just how much is too much, but how much you use is one of the factors courts examine in determining fair use; and
4. The effect of the use upon the potential market for or value of the copyrighted work: Market harm and potential market harm are biggies, and whether a work is considered a legitimate fair use often hinges on a whether a court determines that use harms the market for the original work.
While copyright laws differ from one country to another, the view of the US regarding fan art and fair use may be made applicable in the Philippine setting. Technically, fan-art of copyrighted characters enjoys no legal protection. The legalities of fan art are often debated within the fandom community, and not always easy to answer particularly from one country to the next because of varying copyright laws. If fan art is considered "derivative work", then its copyright would belong to the original copyright holder for a particular character, property, movie universe or book and not the artist. The artist should not have the right, therefore, to display the work without permission of the original copyright holder, and certainly should not be allowed to sell it without first obtaining a license to do so.
However, many in fandom attempt to claim that fan art falls under fair use including "commentary, criticism, news reporting, research, teaching, library archiving and scholarship." Others consider fan art a transformative work which "takes something extant and turns it into something with a new purpose, sensibility, or mode of expression" therefore suitable of legal protection in its own right.
In general, most media copyright holders turn a reasonable "blind eye" to fan art activity as it can be seen, to an extent, as a form of "free advertising" for their products. Artists, whether they are musicians, authors or filmmakers, are typically very lenient about such practices. They realize that such creations are not only free promotion for their work, but that such efforts create a community that comes together and supports the original work. The community works to ensure they don’t hurt the original creator’s ability to profit from the work and the creator tolerates what is technically a copyright infringement in many cases.
However, many in fandom attempt to claim that fan art falls under fair use including "commentary, criticism, news reporting, research, teaching, library archiving and scholarship." Others consider fan art a transformative work which "takes something extant and turns it into something with a new purpose, sensibility, or mode of expression" therefore suitable of legal protection in its own right.
In general, most media copyright holders turn a reasonable "blind eye" to fan art activity as it can be seen, to an extent, as a form of "free advertising" for their products. Artists, whether they are musicians, authors or filmmakers, are typically very lenient about such practices. They realize that such creations are not only free promotion for their work, but that such efforts create a community that comes together and supports the original work. The community works to ensure they don’t hurt the original creator’s ability to profit from the work and the creator tolerates what is technically a copyright infringement in many cases.
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Fan art if used for commercial purpose is prejudicial to the original work. Here, in the Philippines, the reality is that copyright of original work is not known to men, they may only know the copyright of books, that is why there are many cases of infringement. Protection of copyright of original works is not strictly observed in this country, maybe the author is benefited too or he may not know his rights...
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