“Fan Art”—you’ve probably seen it and didn’t know it. Maybe you’ve even purchased it, not knowing it wasn’t legally created. So what is it, exactly? Fan art is art created by fans of characters that were originally created by another person. It can take the form of merchandise, such as paintings, t-shirts, buttons, posters, etc.
Fan art has become incredibly widespread. It regularly appears at large comic book and collectible conventions, often for sale right under the noses of the intellectual property owners of the characters. For example, it is commonplace to see offered for sale at shows things such as Marvel superhero characters immortalized in new paintings and posters that were not licensed to be produced or reproduced. There is also widespread manufacture and sale of other fan art items such as print on demand t-shirt sites on commercial websites.
In my view, such fan art is nearly always an illegal violation of the copyrights to the original works. Under copyright law, the owner of a copyright to a literary work (such as a book), a motion picture work (such as a movie or cartoon) or a work of fine art (such as a drawing or painting) owns not only the exclusive right to display and reproduce that work, but also the exclusive right to create “derivative works” based on the work. A “derivative work” is defined as a “work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted.” Clearly, in my view, fan art constitutes a derivative work of the original work upon which it is based.
Although copyright’s Fair Use Doctrine permits certain uses that would otherwise constitute copyright infringement, the application of the Fair Use Doctrine is limited to certain uses such as parody, criticism, comment, scholarship, research and the like. However reproducing a work of fan art primarily for commercial purposes (such as fan art created for sale at shows, as opposed to creating a parody of a famous character for political commentary) would seem to fall squarely outside of the scope of Fair Use. (For a more detailed discussion of the Fair Use Doctrine, see http://www.gurwinskeyboard.com/homage-or-rip-of/.)
So WHO owns the copyrights to the fan art? Clearly, that portion of the fan art that merely incorporates the original art is owned by the owner of the original art. But what about the elements added to that original art, i.e., the new elements of the derivative work? This becomes an issue if the owner of the original work seeks to commercially exploit the unauthorized derivative work. For example, if Marvel were to see an unauthorized Spiderman statue but felt it could be commercialized, could it simply take that statue, reproduce it and sell it without paying anything to the fan artist who created it without Marvel’s permission?
While that question is generally unsettled among the various Federal juridical circuits, the most favored approach is that the author of an unauthorized derivative work has NO rights in the derivative work, even the aspects that are original or distinct from the original copyrighted work. So who DOES own those rights? Again, while it is not a settled issue, most of the circuits have taken the position that those new aspects are in the public domain, as opposed to being owned by either the owner of the original copyright or the author of the unauthorized derivative work.
In the case of Keeling v. Hars, recently decided by the influential Second Circuit Court of Appeals, the court held that if the derivative work is fair use, the author of the derivative work IS entitled to copyright protection in the aspects of the derivative work that were his or her original creative contributions. However, as I’ve noted above, given the commercial nature of much of this fan art, I do not think it likely would be deemed to be fair use. Given an appropriate circumstance, however, such as fan art that constitutes a political commentary or parody of the original work which qualifies as fair use, the Second Circuit view is that the copyright to that portion of such fan art that was not part of the original work would be owned by the fan artist, not the original copyright holder.
Trademark law also can serve as a protection against fan art. The unauthorized use of a mark that is likely to cause confusion with an existing trademark or service mark is an infringement. So, if the fan art consists of reproducing a well-known logo (e.g., “Spiderman”), that would constitute not only copyright infringement, but also trademark infringement. While certain types of trademark parodies are considered to be a form of “fair use” (think, Mad Magazine or Garbage Pail Kids), simply appropriating a well-known mark and reproducing it in the form of fan art likely would not constitute permissible a use.
The question is why is fan art activity still so widespread? The answer lies in the practicalities of enforcement, both in terms of costs and relationships with consumers.
I asked one of my clients, Kevin Stecko, President of 80sTees.com, Inc. (80sTees.com), a leading website that sells authentic licensed character merchandise, to weigh in with his thoughts.
When I asked Kevin how the rise of “fan art” has impacted his business, he stated that fan art, by itself, does not hurt his business. “For example deviantart.com is essentially an online gallery for anyone who wants to post their art, and there are a ton of great fan artists who post on there.” However, Kevin pointed out that there are specific sites that have made a business model out of selling unlicensed fan art for the brands that 80sTees.com sells. He gave the example of teefury.com, which has an entire page where they sell “Galactic Style,” “which is just a way of not actually saying Star Wars T-Shirts: teefury.com/collections/galactic-style.” Other examples Kevin cites are redbubble.com and riptapparel.com which have similar business models. Many of these companies even sell “mash ups” of two or more brands.
According to Kevin, these companies have huge advantages over companies like 80sTees.com: “Since there is no licensing, there is no approval process, no royalties, no limits at all, really. So they can move faster and source less expensively than we can.”
I asked Kevin how his licensors were policing these unauthorized products. He told me that, for the most part, the movie and TV studios are not actively pursuing the creators or sellers of this fan art. However, certain smaller brands or individuals sometimes do a great job. He noted that both Chuck Norris and the heirs of Bob Ross are really active in policing their respective IP rights.
Kevin feels that there are three primary reasons for this lack of policing:
- The property owners fear a public relations backlash from fans for cracking down on individuals who are more or less expressing love for their product;
- The property owners do not fully realize just how profitable some of these unauthorized sites are and, therefore, don’t see policing as something in which to to invest; and
- They understand the practical problem of engaging in a costly lawsuit against an entity that does not have much money—essentially making it judgment proof.
While brand awareness and popularity is an obvious benefit for licensors and licensees alike, to the extent that fan art goes beyond mere “homage” to a commercial undertaking where the creators/sellers of such fan art have an unfair competitive advantage over those who are properly licensed, this will continue to be a problem in this industry.
At some point, the owners of this valuable intellectual property will need to take a stand. Otherwise, they run the risk of losing their IP rights or of finding licensees willing to pay license fees to produce products that others are producing without the cost of the license.
My thanks to Kevin Stecko of 80sTees.com for his assistance with this blawg post.