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.
