Fans often create artwork like designs for clothing, posters or jewelry based off of movies, television series or literary works, not knowing that this work is copyrighted.
While it’s sometimes difficult to see the fine line between copyright infringement and inspiration, depending on the case, most likely what someone has made may be considered a derivative work. It’s important to note that derivative works can only be created by the original creator, and other artists cannot do so without permission.
Copyright law does, however, allow individuals to make “fair use” of another’s copyrighted work in some situations. Under the fair use defense, the public may use a small amount of a copyrighted work without asking for the original creator’s permission.
Before you jump in and start creating artwork that incorporates another artist’s work, there are a few factors to consider. We’ll go into more detail below.
Fandom and the Fair Use Defense
In order to decide what counts as fair use, Congress has given judges a number of criteria to take into account. Keep in mind that these factors are complex and tend to be evaluated and interpreted differently in each case.
Among them are:
- Use and purpose
- The type of copyrighted work
- Amount used relative to the entire copyrighted work
- The impact on the value or marketability of the copyrighted work
The court assesses the validity of a case using a four-part test. However, each court weighs factors differently and some judges may prioritize certain factors more than others.
Cases like these tend to result in long-running conflicts as legal professionals and artists don’t usually agree on what is considered fair use. Generally speaking, the outcomes of these tests tend to be difficult to predict and it’s hard to know what will or will not be taken into consideration.
In each step, the court will evaluate:
- Intent. This includes how transformative the fan art is, and whether it was created for commercial or nonprofit use. Fair use is less likely to apply to fan art that is being sold than it is to private work.
- The type of copyrighted work. Here the court will take into account if the work is fictional or nonfictional. In general, a court is less likely to rule that fan art that is based off of fictional material is fair use.
- Amount and scope of the copyrighted work used. There is less likelihood that fan art will be considered fair use if it contains a substantial amount of the copyrighted work.
- The effect on marketability. The court assesses the impact of the fan art on the copyrighted work’s market value.
Fair Use Checklist
You might have heard that as long as you give credit, you are covered under the fair use defense. This is not always true. However, for the most part, it will largely depend on your use of the material. In any case, we recommend asking for permission when you use another creator’s content.
If you are considering using another creator’s content without permission, ask yourself some questions such as:
- Could your article be written without this copyrighted image or text?
- Does your article contain more original content than copyrighted material?
- Is your content a parody of this copyrighted work?
- Is the copyrighted work classified as nonfiction or news?
If You Need a Consulting Regarding Fandom and Fair Use, Sanchelima & Associates Can Help
Sanchelima & Associates, P.A. is one of the leading intellectual property law firms in South Florida. With over 40 years of experience, we have represented the IP interests of a wide array of businesses in the US and abroad, including Fortune 500 companies. Whether you need a consultation or prosecution of a patent, trademark, or copyright, we can protect your business’s interests.
Contact us to book your consultation!