Biyernes, Agosto 31, 2012

Fan Art, Are You A Fan?


Have you ever seen an Avenger’s poster that really caught your eyes, tickled your brain and made you wonder “there is something different, but you just can’t tell?” It might be an FAN ART. There is no legal definition for fan art yet. Right now it is commonly referred as creations of fans such as images and drawings based on characters of films, comics, books and other literary forms.

After seeing this thing called fan art, you would start to think, is this legitimate? To answer this, we would have to first get to know the law. Here in the Philippines, we have RA 8293, the Intellectual Property Code of the Philippines gives protection to original intellectual creations in the literary and artistic domain from the moment of their creation[1] it further provides that works are protected by the sole fact of their creation, irrespective of their mode or form of expression, as well as of their content, quality and purpose.[2] It gives the author  the exclusive right to carry out, authorize or prevent the following acts: 1) reproduction of the work or substantial portion of the work; 2) dramatization, translation, adaptation, abridgement, arrangement or other transformation of the work; 3) the first public distribution of the original and each copy of the work by sale or other forms of transfer of ownership; 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; 5) public display of the original or a copy of the work; 6) public performance of the work and 7) other communication of the public of the work. [3] We also have the so called “derivative works” which are also protected by the copyright, which are dramatizations, translations, adaptations, abridgments, arrangements, and or other alterations of literary or artistic works; and collection 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;[4] these works shall be protected as new work provided:  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. [5]

Based on the abovementioned provisions, we can say that fan art in a copyright infringement, but then the law also provides for the fair use of the copyright which does not constitute infringement, which is the tricky part. Under the fair use of a copyrighted work: The fair use of a copyrighted work for criticism, comment, news reporting, teaching including multiple copies for classroom use, scholarship, research, and similar purposes is not an infringement of copyright. Decompilation, which is understood here to be the reproduction of the code and translation of the forms of the computer program to achieve the inter-operability of an independently created computer program with other programs may also constitute fair use. In determining whether the use made of a work in any particular case is fair use, the factors to be considered shall include: (a) The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes; (b) The nature of the copyrighted work; (c) The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (d) The effect of the use upon the potential market for or value of the copyrighted work; the fact that a work is unpublished shall not by itself bar a finding of fair use if such finding is made upon consideration of all the above factors.[6]

Based on these provisions, we can say that fan art may be legal and may be an infringement, how to determine this is up to the courts. Where fair use ends, is also up to the court to determine. As of now, fan art is rampant, some for profit and some just for fun. We may have enough legislation, but it is up to the authors to raise their right and to put a stop if they feel that their right is being violated.







[1] Sec. 172.1, RA 8293
[2] Sec. 172.2, RA 8293
[3] Sec. 177, RA 8293
[4] Sec. 173.1, RA 8293
[5] Sec. 173.2, RA 8293
[6] Sec. 185, RA 8293

1 komento:

  1. I agree that courts play a major role in determining the treatment of Fan Art in the context of the Philippine copyright laws. The courts need to determine whether fan art may be considered a derivative work , thus, an original work, taking into account the prejudice it poses to the author. 

    TumugonBurahin