Episode 5: Should You Do Fan Art?
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As the discussion continues I think there are some important concepts to keep in mind.
For the sake of keeping things a simple as possible let's define "fan art" the way Will, Jake and Lee did in the podcast -- visual depictions (artwork) of characters that you didn't create AND that someone currently holds the copyright to.That kind of fan art (as described above) is a copyright infringement. Plain and simple. No question. No debate. If you are a safe, conservative artist who doesn't want to ever get sued or get a take down notice or even looked at askance by an IP creator just don't do fan art. Easy right?
But WAIT! -- before anyone starts freaking out, like all things copyright it's never quite so simple.
In practice I agree with pretty much everything Will, Jake and Lee discussed in the podcast. I just think clarifying the concepts is important.When dealing with copyright infringements it's important to understand the difference between a basic "infringement" and an "actionable infringement". This was discussed in the podcast but I'd like to place greater emphasis on it. To further differentiate the two let's call them a "technical infringement" and an "actionable infringement"
We all create "technical infringements" pretty regularly. You, me, pretty much every artist. If you've ever found an image on the internet and copied it to your desktop, made a photocopy, scanned a page from a book on your home scanner etc you've "technically infringed" on someones copyright to that original text or image. But you've never been sued right? Of course not. Big part of that is because no one ever knows you've got that copy sitting on your desktop, but another aspect is that the infringement is so small that the copyright holder has determined it would be a waste of resources to follow up. Or, as was mentioned in the podcast, the copyright holder determines it's actually in their best interest to allow the infringements as a way of keeping the IP in the public consciousness. But make no mistake these small "technical infringements" are still exactly that -- infringements.
An "actionable infringement" is pretty much just like it sounds. An infringement that rises to the level that the copyright holder determines it is in their best interest to take action. Usually this is a simple take down notice, or a cease and desist. If ignored it can rise to some more serious legal action with a lawsuit and financial penalties being the most serious.
Keep in mind that there is no clear delineation between the two. What is simply a "technical infringement" for one copyright holder might be an "actionable infringement" for another. And visa versa.
Finally there is the "Fair Use Defense". Again, it is important to understand that ALL work that falls under the "Fair Use Defense" is fundamentally an infringement. The thing is that Congress has determined that some infringements are actually in the public's interest and have therefore carved out exemptions to copyright protections for these uses. "Fair Use" is a defense that an infringer can claim when the copyright holder tries to exert copyright protection over their IP.
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For my new comic, I'm taking all the Justice League characters and putting them in the Star Wars universe. But I'm changing all the names to be from the Harry Potter books. That's ok right?
SVS Faculty Instructor
www.leewhiteillustration.com -
Since we're already wandering from the topic, and Fair Use was brought up, I give you...
A Fair(y) Use Tale:
https://www.youtube.com/watch?v=CJn_jC4FNDo -
@sarah-luann Holy Moly! I think they showed this to us in middle school to try and explain fair use and copyright in my computer class!
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Its been around for awhile
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@lee-white It may not be ok, but I want to read it!! Ha!
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@sarah-luann This is clever (and a clear use of the Fair Use Defense) but wow, that was hard to watch! And I'd argue we aren't wandering from the topic. The subject of the Fair Use Defense was brought up many times during the podcast. In fact my impression was that it is what Will uses to defend his fundamental infringement of his "Little" characters (book and prints).
And to be clear, that last is not an indictment of Will or the "Little" characters. I am a huge fan of the Fair Use Defense. I believe it is vital to our culture. We need to be able to comment on pop culture and media giants. Fair use allows us to do that. But there is no question the Little's are an infringement. Merely that they may well be a defensible one.
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@lee-white Ironically, with that level of mashup you could well be in the clear from a copyright standpoint -- but completely screwed from a trademark POV! (especially now that there is the precedent of Sony collaborating Marvel/Disney with the Spiderman IP)
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Hard to watch, because it was maybe trying a little too hard make a point. This one is a bit clearer: https://www.youtube.com/watch?v=SiEXgpp37No
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@sarah-luann Yes, that is MUCH easier to watch -- but this video is misleading is some cases and totally wrong in others. (Which is odd because I usually like Adam Ruins Everything.) Yes there was an extension to copyright protection in 1998 but that merely made the US copyright protection line up with all the others Berne Convention (treaty that our copyright law is based on) countries. In fact the US has been the slowest country to provide copyright protection to artists and authors!
Additionally the idea that NOTHING has entered the public domain is patently untrue. Every character listed at the beginning of the video among many others have all had their copyrights expire and have entered the public domain. New work literally enters the public domain every year! Which makes sense because regardless of what videos like this try to state, copyright protection HAS an expiration date on it. Check it out https://en.wikipedia.org/wiki/2017_in_public_domain
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@davidhohn I admit I havenāt listened to the podcast yet, so maybe its mentioned there, but I was wondering what is the status of the law about the use of reference images - talking about both photo and illustration.
I know you can copy a color scheme or a composition (in terms of shapes and value structure) without any issue - those are generally not objects of copyright (though I know colors can become an issue in certain cases where the copyright holder wishes to TM them as ābrand-specificā). But how about situation and subject matter?
The famous case we discussed at school was the Associated Press against Shepard Fairey for the Obama āHopeā poster. But in that case, when you compare the art with the photo they are basically identical - aside from color and rendering. What happens when the image is only loosely based on a reference? How much distance is distant enough? And yes, taking your own reference pictures is nice, but letĀ“s face it: it can be nearly impossible at times.
Thereās one image in a project Iām on right now that gives me some heartache. It shows a rocket leaving Earth, heading for outer space. The composition is a classic: the rocket is diagonally oriented and set against the blue-green-white Earth globe, the shape of the rocket crossing the curvature of the Earth, so that itĀ“s half superimposed to the Earth and half onto space. I saw the composition first in the famous TinTin moon comic and I thought it was simple and effective, so I used it. Now, all similarity ends with the list of objects (Earth, space and rocket) and the way they are oriented (crossing each other diagonally). The rocket is different, the Earth is shown from a different perspective, the inclination at which they cross and the extent of overlap is different and of course itĀ“s painted and not inked and colored. What`s more, there are literally dozens if not hundreds of images with the same content, objects and composition: photomontage, 3D renders, paintings, film frames, NASA promotional material. I very much doubt that Herge was the first to come up with this image (though man had not been to space yet, when the comic was written) and if he did, it does not look like his heirs had any leverage to defend it.
The content seems so simple and literal (Earth is Earth and space is space and a rocket needs to be long and thin to look like a rocket) and so much in the common use that I canāt see how a depiction like this could be problematic. And yet, I wonder.... -
@smceccarelli Short answer -- based on your description I have every reason to think that your "rocket leaving earth" image will not be an actionable infringement.
Longer answer: My own rule of thumb when using photo reference I didn't take (or have permission from the copyright owner to make derivatives of) is to do initial thumbnails out of my head (much easier with decades of drawing experience behind me) and then gather the photo reference needed to fill in the details. I also make sure to never use just a single photo, instead I gather 3-5 at a minimum. Finally, if I find the PERFECT photo. EXACTLY what I need . . . I chuck it! Way too easy to accidentally copy it.
But if you want we can discuss this further. This kind of topic might warrant its own thread. Im not an IP attorney, but I'm quite interested in copyright and have spent a fair amount of time studying it. Copyright infringement is inherently subjective with a variety of factors that must be considered simultaneouly and it's easier to evaluate when looking at the actual images.
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@davidhohn Thank you very much for your answer! I will start a new thread because I have other questions relating to the use of reference.
I tend to work the same way you described - including chucking reference that is too close to what I want to do :-))
But I also look at hundreds of images per day (I work part-time as AD, so hunting for artists and best practices is part of my job) and I find stuff creeping up in my work without even being aware of it....but thatās the nature of inspiration and style-building, I guess. -
@davidhohn You didnāt sound critical at all. And the stuff youāre saying is gold for me! Thank you for putting the time in to answer some of this stuff. I think I sometimes have a hard time wrapping my right brain around the left brain concepts. Copyright laws and Trademarks... I may as well be back in algebra class.
ļø Itās critical though, we all want to not just be good, but legit too, I think. -
I was listening to this podcast again and I was curious about something. If you create fan art to sell online or at conventions etc, but someone steals your work and makes their own prints of it to sell then would you have any legal recourse? If fan art isn't exactly legal in itself then can it be protected? I don't create fan art, but I have no issues with those who create it (unless it's a complete ripoff that they are claiming it as their own) but it was just a shower thought question I recently came up with
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@gary-wilkinson Based on my understanding, no, there is no legal recourse.
I'll clarify your question somewhat by defining "fan art" as: visual depictions (artwork) of characters that you didn't create AND that someone currently holds the copyright to.This is important because IF what you are calling "fan art" actually falls under the "fair use defense" you question is somewhat more complicated and, I would argue, would no longer qualify as "fan art".
But let's keep things simple. Fan Art (as defined by the podcast) is an infringement of copyright and and is illegal. No question. (If that position freaks anyone out see earlier posts for the distinction between a "technical infringement" and an "actionable infringement") Therefore by definition it is not protected by copyright law. With no protection there can be no legal recourse.
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Came across this youtube link (from another thread here on the SVS forum) that discusses fan art and an illustrator's liability in creating it. The speaker is an IP attorney. Definitely worth a watch.
https://youtu.be/j819TyO-Dfw?t=6m39s
Note: the 1FW video is over an hour long. The section about fan art starts at 6:38. The link should start right there.
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More information from IP attorneys on the topic of fan art from attorneys who are much more flexible in their interpretation of this fundamental infringement:
https://podtail.com/podcast/a-lawyer-s-guide-to-the-galaxy-podcast/ep-10-fan-art-copyright-defenses/
This is a shorter podcast so it's worth listening to the whole thing (kind of a Copyright 101 in the first part of the podcast) but they really begin to discuss fan art issues around the 15 min mark.
