Legal Dilemma: Fan Art

The Legality of Fan Art in the Philippines

By:

Jaimie Rae A. Domingo

August 31, 2012

My sister is fond of going to COSPLAYS. Whenever an opportunity presents itself, she will surely bug me to help her with her costume and to take her to the venue of the COSPLAY. She thrives on attention. I, for one, have observed quietly from the sidelines the enthusiasm of millions of fans in showing off their costumes which is a product of many preparations and hardwork. Costumes worn at these COSPLAYS are really a sight for sore eyes. The detail of the costumes reflect the amount of time a person has invested in preparing it. These costumes are often referred to as FAN ART.

Fan art has been defined as:

Fan art or fanart is 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. 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 quotes.¹

From the definition provided above, it can be said that Fan Art is a derived work of a person which can be protected under the Intellectual Property Code under Copyright Laws. Under the Code, a Derivative Work is defined as:

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.

Fan Art being an alteration of an original artistic work is protected in the Philippines as it falls under Section 173 (a) for being “other alterations of literary or artistic works”. However, Fan Art may also cause confusion as the law also expressly states that the author of the work shall have Copyright or Economic Rights as provided under Section 177² of the Intellectual Property Code. Under these rights the author of the work shall have the exclusive right to the reproduction of the work or to its transformation which is what happens when Fan Art is created. Thus, confusion is created when Fan Art and Copyright Laws collide.

Fan Art may be a case for infringement but the facts and circumstances of each case is needed to be taken into consideration. However, law suits involving fan art is seldom heard of as fan art is highly tolerated as a means of advertising and promoting the work of the original author himself. Thus in an article by Jonathan Bailey, it states:

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fan fiction and art is usually not very harmful. Fans create works that are openly recognized to be non-canon to the story and are not replacements for the original.

In fact, some feel these fan communities actually serve a valuable service to copyright holders by providing a thriving site for fans to visit, keeping them entertained and engage between official releases. In short, since fan creations don’t take away sales of the original work, they are often seen as free promotion and a way to grow the brand without cost or effort.

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Fan fiction and fan art communities, in turn, usually have a set of rules that they follow to preserve their symbiotic relationship.

First, they agree to not profit from or sell copies of their creations. Though some of the communities run ads to cover hosting costs, most do not turn any profit and the individual authors never sell their works. Second, they always proclaim that their work is unofficial and has no connection with the creators. Finally, they respond to requests from the copyright holder to remove content and work with the creator as needed.

In short, 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. Everyone seems to be happy though, on rare occasions, the system can break down.³

In the aforequoted article, the author also shares a few pointers⁴ on how to avoid conflict in creating fan art.

In sum, it is this author's opinion that fan art is protected under the Philippine law as long as the art created does not amount to an infringement on the original author's copyright or economic rights and as long as the fans creating the artwork does not derive profit from such artwork to the prejudice of the original author of the work.

1Fan Art, www.wikipedia.org, 26 August 2012

2 Section 177. Copyright or Economic Rights. - Subject to the provisions of Chapter VIII, copyright or economic rights shall consist of the exclusive right to carry out, authorize or prevent the following acts:

177.1. Reproduction of the work or substantial portion of the work;

177.2. Dramatization, translation, adaptation, abridgment, arrangement or other transformation of the work;

177.3. The first public distribution of the original and each copy of the work by sale or other forms of transfer of ownership;

177.4. Rental of the original or a copy of an audiovisual or cinematographic work, a work embodied in a sound recording, a computer program, a compilation of data and other materials or a musical work in graphic form, irrespective of the ownership of the original or the copy which is the subject of the rental; (n)

177.5. Public display of the original or a copy of the work;

177.6. Public performance of the work; and

177.7. Other communication to the public of the work. (Sec. 5, P. D. No. 49a)

3The Messy World of Fan Art and Copyright, www.plagiarismtoday.com, May 13, 2010

4 Staying Safe

If you’re interested in creating fan fiction or fan art, here are a few quick things I would say to do to make sure you don’t find yourself in a copyright or trademark conflict.

1. Check the Rules: Look for the rules of whatever you’re a fan of. Fan art and fan fiction communities often have guidelines and some authors have made public statements on the issue. Do some research before creating and uploading.
2. Make it Clearly Unofficial: Have clear statements on your site that your site and your work is not an official site and is just a fan creation. Though it may not help with an actual trademark or copyright dispute, it shows good faith and encourages rightsholders to work with you.
3. Be Non-Commercial: This is an element of the unspoken rule, but try to be completely non-commercial with your works, no selling copies, no sponsorships, no advertisements.
4. Be Careful with Domains: Be mindful that your domain can become a trademark issue if it leads others to think that you might be an official site. Make it clear with your domain that it is a fan creation.
5. Comply with Requests: If the creator or an agent on their behalf makes a request of you, obey it. If it’s a polite request, complying helps avoid a less-than-polite request later and builds a good rapport. If it is a more stern one, it is even more important to comply.

By no means do these steps prevent fan fiction and fan art from being a technical infringement, but they may help your use of the content be considered a tolerated and even respected use of the source material.