The Legality of Fan Art in the Philippines

THE LEGALITY OF FAN ART IN THE PHILIPPINES

The legality of “fan art” in the Philippines is based on the premise that amateur artists, who are not earning profits from their fan creations, create fan labor artworks without intention of committing copyright infringement. A brief explanation would perhaps give us more insights about “fan art” and its effect on the rights of the person/s or owner/s protected under the Intellectual Property Law of the Philippines.

Fan art is defined as an artwork based on a character, costume, collage, item, or story created by someone other than the artist or owner of the intellectual property rights in the original work or a permitted licensee, such as a fan, from which the word is derived from. The term “fan art” is used to refer to art taken from visual media like comics, movies or video games. Also, fan artists may also create web banners, avatars, or web-based animations, other than photo collages, posters, and artistic representation of movie or show or book quotes on traditional paintings and drawings.

Fan art creator, according to some articles, must release the fan art under a free license that allows commercial use provided that such does not infringe any copyrights of the owner’s right. However, in practice, it is often difficult to tell whether the fan art is an independent work which merely shares with the original work of fiction some basic non-copyrightable aspects or features or has been made by copying.

Intellectual Property Law, especially Copyright Law, protects the original and creative works of an author like books, manuscripts, music, film and video productions, computer code and works of art such as paintings and photos. Authors of said works have exclusive rights to do the following with their work: (a) Reproduce the work; (b) Distribute copies of the work to the public; (c) Perform the work publicly; (d) Display the copyrighted work publicly; and (e) Prepare derivative works based upon the work.

A derivative work is defined as a new, original product that includes aspects of a pre-existing or has been already copyrighted work. This is also known as a "new version". It includes musical arrangements, motion pictures, art reproductions, sound recordings or translations, dramatizations and fictionalizations. In order for a derivative work to receive its own copyright, it must be different enough from the original to qualify as a new piece of work. Making minor changes to an original and copyrighted work does not constitute a new derivative work under copyright law.

Under the law, it is said that only copyright owners have the exclusive right to produce derivative works based on their original and copyrighted works. Copyright on original works of authorship is automatic and registration while it does carry significant benefits, like the right to sue for infringement is not required for a work to be protected because protection attaches immediately when the work is completed. An exception would be when a copyright owner grants permission to someone else to make a derivative work based on his or her original, hence such creation of the derivative work cannot be considered as infringement. But if the original is from an author and no permission was given to use the original from its creator, then it would amount to infringement of an author’s copyright. An exception to exception would be the doctrine of “fair use”. This is a defense available to someone who uses another’s work without permission from the author in the creation of the latter.

There are factors that courts usually weigh when a defendant accused of infringement claims the “fair use” defense, and this four-factor balancing test leads to subjective, unpredictable results.

The copyright on a derivative work covers only new material, appearing for the first time in the derivative work; it does not cover any pre-existing material from the original. Meaning, if you have a license on the work from its author, you can make a derivative work based on the original but shall not obtain the copyright on the original. The owner retains all rights to the original and all its elements. Another scenario would be when the copyright on the original is not extended by the creation of the derivative work. If an author makes a derivative of his own work, then his copyright will not change regardless. But if a second author makes a derivative work of the first author’s original, the copyright on the elements of the original is measured by the life of the original’s author cannot be considered as derivative works. While, for example, an entire blog would be dedicated to fan creations, it is equally important to take a brief look at the issue of copyright infringement.

According to the copyright law, copyright holders have the sole right to distribute derivative works based on an original creation. This includes sequels and any other work that includes copyrightable elements from the original creation. Hence, fair use may protect some fan creations from being an infringement, but it will be a case-to-case basis.

It is also worth noting that fan fiction and fan art can be a trademark violation as well, especially if it uses names and titles in a way that causes confusion as to whether they are official. Trademark disputes over fan creations are unusual, but still possible.

Cases filed before the court involving copyright infringement of fan fiction and fan art issue are very seldom in our jurisdiction. It is strange considering that many of the rights holders who are the most common target of fan creations are also among those most aggressive at stopping other infringement of their work.

On the viewpoint of a copyright holder, fan fiction and art is usually not damaging. Fans create works that are openly recognized to be non-canon to the story and are not replacements for the original. 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.

Another concern or issue, however, is the cost of going to war with fans. Being litigious with creators of fan art can be costly, not only in terms of court costs, but in terms of backlash. No creator wants to sue their fans, especially when the fans aren’t earning revenue, and as such most creators will tolerate fan fiction and art under most circumstances.

In observing the symbiotic relationship of fans and creator, 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.

The key point to remember is this: Fan fiction and fan art are, usually, an infringement of the right of the copyright holder to prepare and license derivative works based on the original. This is almost without exception.

However, many copyright holders, for good reasons, tolerate fan art and even encourage it, but this should not be taken as blank cheque to do what you want with the source material. There are many lines that a fan artist can cross and wind up in legal trouble.

The best thing to do is to study the rules providing for the rights of a copyright owner or creator and to know the extent of such actions so as not to create any violations which may result in copyright infringement or violation of any provisions of the intellectually property law.