By: Mikaelo Jaime C. Reyes
I.
INTRODUCTION
Fan
Art is defined as an “art of any form, usually electronic or drawn free hand,
that uses characters or settings from popular television show, novel, cartoon,
anime, or movie as the subject.”1 A fan art is an unsolicited
artwork that is based on a character or property that the artist did not
create. Fan art is usually produced by inexperienced artists to express their
admiration for the original creator and an inexperienced artist to practice and
improve their drawing skills.
II.
LEGALITY
OF FAN ART
Fan
art is a violation of the original owner’s copyright. Under Section 177 of
Republic Act 8293, commonly known as Intellectual Property Code of the
Philippines, the copyright or economic rights shall consist of the exclusive
right to carry out, authorize, prevent the following acts,
a.
Reproduction
of the work or substantial portion of the work
b.
Dramatization,
translation, adaptation, abridgement, arrangement or other transformation of
the work,
c.
First
public distribution of the original and each copy of the work by sale or other
forms of transfer of ownership,
d.
Rental
of the original or a copy of the audio
e.
Public
display of the original or a copy of the work
f.
Public
performance
g.
Other
communication to the public
A
fan art would fall squarely on items: a, b, or g since a fan art usually
depicts the copy of the original work of the creator including style, color,
shading, expression. It is significant to consider that the right to reproduce,
transform or communicate to the public the copyrighted work is exclusively
granted to the owner of the copyright.
III.
DERIVATIVE
WORK
May
fan art be considered a derivative work therefore protected as a new work?
Under Section 173 of Republic Act 8293,
commonly known as Intellectual Property Code of the Philippines, derivative
shall also be protected by copyright:
a.
Dramatizations,
translations, adaptations, abridgements, arrangements, and other alterations of
literary or artistic works
b.
Collections
of literary, scholarly or artistic works, and compilation of data and other
materials which are original by reason of the selection or coordination or
arrangement of their contents.
Derivative
works will be protected and considered new provided that the new work shall not
affect any subsisting copyright.
If
the fan art is created not for profit but merely to express admiration, then
there would be no copyright infringement since the law requires that to be
considered a new work it should not affect any subsisting copyright.
IV.
FAIR USE
Copyright grants the holder certain exclusive
rights to their intellectual property, but the common culture has a right to
fair use of a work. Section 185 of Republic Act 8293 explicitly states that use
of a copyrighted work for purposes such as criticism, comment, news reporting,
teaching, scholarship, or research, is not an infringement of copyright. But we
can examine fan fiction under the four factors for fair use outlined in the
statute:(1) the purpose and character of the use, including whether such use is of a 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; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
V.
CONCLUSION
In
conclusion, it’s up to each artist to analyze risks of making and selling items
that borrow from others’ brands, characters, or imagery, and make the best
decisions possible for their businesses.
REFERENCE:
1. Urban Dictionary, Retrieved on August
30, 2012, http://www.urbandictionary.com/define.php?term=fanart
2. Davis, Lauren, Are Fan Fiction
and Fan Art Legal?, Retrieved on August 30, 2012, http://io9.com/5933976/are-fan-fiction-and-fan-art-legal
