Art and Copyright

Art and Copyright – The Legality of Fan Art

Have you ever wandered through a convention or fan event and spotted fan art for sale? Perhaps you paused and thought, “Wait a second, doesn’t Nintendo own that property?” This curiosity leads many to ponder the legality of fan art. Is it illegal? What rights do you have when purchasing such art? In this blog post, we will dissect the complexities of copyright, fair use, and the nuances surrounding fan art.

If you thought that only big companies, selling thousands of products and making huge profits are the only ones who will get themselves into trouble, you are sadly mistaken. New AI tools and the rise of ruthless, digital “heavies for Hire” mean that even the smallest artist will be hunted down and harassed to within an inch of their sanity. I fully stand by any artist who wants to protect their work, but there are ways and means of doing this in an “amicable” manner. There is a huge difference between protecting your business and hiring digital debt collectors to “send the boys round”.

What Qualifies for Copyright?

At its heart, copyright is a type of intellectual property that’s different from things like trademarks, patents, and trade secrets. It covers original works that are captured in some kind of physical form. This means that ideas by themselves can’t be copyrighted; they need to be recorded somehow, like in music, paintings, sculptures, or even dance performances. However, ideas, genres, or styles aren’t covered by copyright. For something to be eligible for copyright, it just needs to show some originality and creativity, which isn’t a high bar to clear.

Copyright kicks in automatically when a work is created, so you don’t have to register it to have rights. That said, registering your work can be beneficial, such as giving you the ability to take legal action if someone infringes on your rights. Generally, copyright lasts for 70 years after the creator’s death or 95 years for commercial works. The aim of copyright is to encourage the creation of new works by giving creators exclusive rights to what they’ve made.

Understanding Fair Use

Fair use is a critical concept in copyright law, allowing individuals to use copyrighted material without permission for specific purposes, such as criticism, news reporting, teaching, or research. However, fair use is not a blanket protection and is assessed on a case-by-case basis, considering four main factors:

• Purpose and Character of Use: Is the use commercial or educational? Is it transformative?
• Nature of the Copyrighted Work: Is the original work creative or factual?
• Amount and Substantiality: How much of the original work is used?
• Effect on the Market: Does the new work compete with the original?

Notably, the most significant factor is the effect on the market for the original work. If the new work competes with the original, it is less likely to be considered fair use.

Common Misconceptions About Fan Art

Many artists mistakenly claim their works fall under fair use, but this is often not the case. For instance, if an artist creates a piece that closely resembles a copyrighted character, they are likely infringing copyright, even if they believe their work is transformative. The reality is that most fan art does not qualify as fair use, especially when it sells in a competitive market.

When discussing fan art, it’s essential to consider specific scenarios to illustrate copyright infringement:

• Exact Copies: If an artist sells a poster that directly copies an image from Nintendo, that is a clear violation of copyright.
• Bootleg Products: If you unknowingly buy an illegally created item, you are generally not liable for copyright infringement, as possession alone does not violate copyright law.