FAN ART- Its Definition
FAN ART is merely a graphic representation of various media forms that have numerous fans. The term, while it can apply to art done by fans of characters from books, is usually used to refer to art derived from visual media such as comics, movies or video games. In addition to traditional paintings and drawings, fan artists may also create web banners, avatars, or web-based animations, as well as photo collages, posters, and artistic representation of movie/show/book quote. Fan Art is based on someone else creation.
Fan Art in Terms of Copyright
WHAT IS COPYRIGHT?
Copyright means that, as the author of the work, you, and you alone have the right to do any of the following or to let others do any of the following:
Copyright means that, as the author of the work, you, and you alone have the right to do any of the following or to let others do any of the following:
- Make copies of your work;
- Distribute copies of your work; (this includes selling it, like how we sell prints)
- Perform your work publicly (such as for plays, film, dances or music);
- Display your work publicly (such as for artwork, or stills from audiovisual works, or any material used on the Internet or TV).
- Make “derivative works” (including making modifications, adaptations or other new uses of a work, or translating the work to another media)
So, if you do something, fixed on some medium (paper, digital data… Etc) you automatically OWN the copyright. Of course you can trespass that right to someone else, via contract, but that is not the question that we are trying to answer here. We need to determine if Fan Art is Legal here in the Philippines.
Fan Art is a Derivative Work of the original source. To further understand if there's a legal basis for this, the specific section from the Intellectual Property Code of the Philippines which is known as R.A 8293 has been provided below:
Section 173. Derivative Works. - 173.1. The following derivative works shall also be protected by copyright:
(a) Dramatizations, translations, adaptations, abridgments, arrangements, and other alterations of literary or artistic works; and
(b) Collections of literary, scholarly or artistic works, and compilations of data and other materials which are original by reason of the selection or coordination or arrangement of their contents. (Sec. 2, [P] and [Q], P.D. No. 49)
173.2. The works referred to in paragraphs (a) and (b) of Subsection 173.1 shall be protected as new works: Provided however, That such new work shall not affect the force of any subsisting copyright upon the original works employed or any part thereof, or be construed to imply any right to such use of the original works, or to secure or extend copyright in such original works. (Sec. 8, P.D. 49; Art. 10, TRIPS).
It's clearly construed that only the copyright owner had the right of making derivative works. Does this means that Fan Art is Illegal?Technically YES. Since, Fan Art of copyrighted characters have no legal protection. But if we refer to the below section, we can easily understand the things that we need to consider for us not to commit a copyright infringement.
Section 185. Fair Use of a Copyrighted Work. - 185.1. The fair use of a copyrighted work for criticism, comment, news reporting, teaching including multiple copies for classroom use, scholarship, research, and similar purposes is not an infringement of copyright. Decompilation, which is understood here to be the reproduction of the code and translation of the forms of the computer program to achieve the inter-operability of an independently created computer program with other programs may also constitute fair use. In determining whether the use made of a work in any particular case is fair use, the factors to be considered shall include:
(a) The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;
(b) The nature of the copyrighted work;
(c) The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(d) The effect of the use upon the potential market for or value of the copyrighted work.
Since there's still no jurisprudence that will prove that such Fan Art is Legal nor Illegal, then we can honestly conclude that, FAN ART can be accepatable here in the Philippines if:
a. Copyright holders, for good reasons, tolerate fan art and even encourage it, but this should not be taken as a discretion to do what you want with the source material.
b. You license a work from its Author so you can make a derivative work agreed upon.
c. The use of Fan Art will satisfy the Doctrine of Fair Use.
Sources:
http://en.wikipedia.org/wiki/Fan_art
http://www.wisegeek.com/what-is-fanart.htm
http://www.legalzoom.com/intellectual-property-rights/copyrights/what-are-derivative-works-under
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