Things I have learned about Copyright Laws
Mar 13, 2007 16:41:45 GMT -5
Post by CK-- on Mar 13, 2007 16:41:45 GMT -5
As many of you Know I have recently (with the Help of Max) started my own website to showcase my art work.
Since the subject matter that I like to Illustrate is mostly from TV shows and their actors/characters; I thought it might be good for me to research the existing "Fan Art" copyright laws.
What I found was very interesting and most informative, so I decided to share my findings with all my fellow "Fan Artists" on this forum.
The following info is strictly F.Y.I and is not intended to deter you from creating Fan Art...just to make you aware of some of the existing copyright laws...
Here is a website that explains common myths about Fan Art copyright laws. I recommend all artists read this
www.templetons.com/brad/copymyths.html
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Other Links... These basically say the same as the above Link with the addition of Fan Fiction.
From Wikipedia, the free encyclopedia
en.wikipedia.org/wiki/Fan_art
Fan art or fan art is artwork that is based on a character, costume, item, or story that was created by someone other than the artist. The term, while it can apply to art done by fans of characters from books, is usually used to refer to art derived from visual media such as comics, movies or video games. Examples of fan art would be artwork depicting Wolverine from the X-Men comics or a picture of Son Goku from Dragonball appearing as a Super Saiyan 5, or Cloud from the video game Final Fantasy VII. Usually, it refers to artworks by amateur artists, or artists who are unpaid for their fan creations--so that, for example, a professional comic adaptation of The Lord of Rings movie would not be considered fanart.
Copyright
The legal status of fan made art in America may be tricky due to the vagueries of the United States Copyright Act. Generally, the right to reproduce and display pieces of artwork is controlled by the author or artist. However, fan art using settings and characters from a previously created work could be considered a derivative work, which would place control of the copyright with the owner of that original work. Display and distribution of fan art that would be considered a derivative work would be unlawful. However, American copyright law allows for the production, display and distribution of derivative works if they fall under a fair use exemption. Generally small excerpts from larger works that have no financial impact on the original and that are done for non commercial purposes could be considered a fair use. American courts also typically grant broad protection to parody and some fan art may fall into this category. This is a legal gray area, however, and legality can often not be determined under after litigation has concluded.
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Website: Briefs on the outside : Fan Art
briefs.toddverbeek.com/archives/Fan_Art.html
If DC Comics had a dollar for every drawing of the Superman made over the last 65 years, it'd make a substantial impact on their net worth. Same with Marvel and Wolverine. Even a relative newcomer like Todd McFarlane would do well with a dollar for every Spawn sketch ever made. After all what comics fan didn't at least take a stab at drawing their favorite characters as a kid? Some keep at it, and the drawings progress from the family room floor to the refrigerator door to the bedroom walls to the school notebooks to the college portfolio. And every last one of them is done without permission from the copyright holder.
Back in 1938, Joe Schuster drew a man in tights and a cape with an "S" on his chest. He sold the copyright to the company that is now known as DC Comics, and that means that only DC has the legal right to copy Joe's illustration. Even if you don't duplicate it line for line, you're making what's known as a "derivative work", and copyright law says you need permission to do that. So is DC going to sue little Jacob for his rendering in green crayon? What about Nathan's notebook of homemade pin-ups? Or the sketches that Jon - who used to draw the character for DC - does at conventions?
The answer is no. Maybe they could, but they're not going to.
The thing about copyright is that it's not "illegal" - in the sense that the cops might arrest you for it - to copy someone else's property. It's only "against the law" - in the sense that you're doing something you don't have a legal right to do - which means that it's up to the owner to decide if it's OK or not. And the owners of most comics characters generally don't mind that fans draw the characters for fun, or that pros draw them at cons for a few bucks on the side. The publishers recognise it as harmless to them, and probably good for fostering the affection of fans. Technically these "bootleggers" are doing it without getting explicit permission, but the permission has been given implicitly. Fan art is OK... because the owners say it's OK.
Where you're likely to run into trouble is if you start taking your drawings and put them into production. Rather than selling sketches for a few bucks a pop, you take one of your better drawings and start making prints of it. At that point, most publishers see your activities differently: you're publishing. Which is their line of work. When/if they find out about it, you can expect a "cease and desist" letter, and if you don't comply they'll likely take you to court.
It doesn't matter (much) whether you're making money from it or not. Copyright law doesn't care. All it says is that the owner has the right to say "yes" or "no". The only time the profit question comes into play is when the judge (assuming you've been found guilty of violating the owner's copyright) decides how much your fine is going to be. Copyright violation without profit generally gets the plaintiff only statutory damages, which can range from $500 to 20,000. Copyright violation with profits, can get exemplary and punitive damages added on, which can go much higher, depending on the amount of money involved and just how evil you were about it. (Yes, the courts can take the "evilness" of your actions into account.)
In the past decade, another wrinkle has been added to this question: the Web. If I make a drawing of "my fav'rit" Superman, scan it, and put it on my web site, is that the same as making it and showing it around to my friends (which is OK), or is it equivalent to making prints and giving them away? It's somewhere in between, and generally subject to the "sniff test". If it "smells" like just a fan showing people how he drew his hero, they'll let it go. If it has the stench of someone trying to take advantage of the character, or possibly undercutting the publisher's own use of him, they'll stomp.
Some people will argue, "I'm not making the copies, the people downloading it are!" Don't count on the courts to buy that reasoning. You might get a Strict Constructionist who agrees that you're not in literal violation of copyright, but you might get a Loose Constructionist who interprets whether you're acting consistent with the spirit of the law and throws the book at you.
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There were many other informative articles (to many to list here) but the above is basic to most of the articles that I read
So Basically...
Fan Art and Fan Fiction That uses Characters or Properties that belong to someone else without their permission is Illegal
Creating fan Art using TV Show Logos, copyrighted type etc. Is also Illegal Big No No! (examples would include the Buffy "B"; The Superman "S" and the Batman Logo to name a few.
Using photos or artwork found on the web for banners and Icons or wallpapers (no matter if they are altered using photo shop or other art program) is Illegal
Creating fan art is not Illegal...selling or distributing it is also using another photographer's photos or photos found on the web is frowned upon.
Will you be prosecuted for copyright violations? you could but probably not (see above)
doing Manips using stars likenesses is another thing that you should shy away from...From what I have read Allyssia Milano (Charmed) will not hesitate to slap you with a Cease and Desist order for altering her image.
Tiger Woods is another Celebrity that tried to sue an artist for painting his portrait and selling prints of the painting. Woods stated his rights were violated under California's 'Rights to publicity" law. Woods lost the lawsuit when the judge deemed the artist's work as "Art" but not before the artist paid huge court fees etc.
Disclaimers do not protect you from copyright violations if the person who owns the property wants to pursue the matter (But it doesn't hurt to have a disclaimer since it states your intent and could be the difference between a simple Cease and Desist order and a law suit)
The key when doing Fan Art is to always be respectful to the characters and essence of the subject matter that you are portraying in your Fan Art, in other words don't portray the characters in a degrading or uncharacteristic fashion (for example don't draw SMG nude or doing lewd things)
Copyright laws vary from Country to Country so the laws that apply here in the U.S. may differ in other countries
These are just a few of the many things that I discovered during my research.
Will it stop me from doing my drawings and posting them here on the forum and on my web site?
The answer is no ...But I will be careful about how things are worded and the types of images that I draw.
I did change the wording on my web site to say that I am accepting commissions but no where does it say that the drawings themselves are for sale. They are viewed as examples of my skills as an artist (which is acceptable but still very much in the gray area if anyone wanted to push the issue) I am also working on a well worded Disclaimer.
Should the above info discourage you from creating fan Art?
Of course not...just keep in mind some of the things mentioned, stay away from Logos, copyrighted type other artist's work (For example the upcoming Buffy comic art work) and most of all... be respectful to the shows and characters that you are paying homage to. As mentioned above many studios and companies appreciate Fan Art as long as you are not selling it on a wide scale.
Since the subject matter that I like to Illustrate is mostly from TV shows and their actors/characters; I thought it might be good for me to research the existing "Fan Art" copyright laws.
What I found was very interesting and most informative, so I decided to share my findings with all my fellow "Fan Artists" on this forum.
The following info is strictly F.Y.I and is not intended to deter you from creating Fan Art...just to make you aware of some of the existing copyright laws...
Here is a website that explains common myths about Fan Art copyright laws. I recommend all artists read this
www.templetons.com/brad/copymyths.html
-------------------------------------------------------------------------------------
Other Links... These basically say the same as the above Link with the addition of Fan Fiction.
From Wikipedia, the free encyclopedia
en.wikipedia.org/wiki/Fan_art
Fan art or fan art is artwork that is based on a character, costume, item, or story that was created by someone other than the artist. The term, while it can apply to art done by fans of characters from books, is usually used to refer to art derived from visual media such as comics, movies or video games. Examples of fan art would be artwork depicting Wolverine from the X-Men comics or a picture of Son Goku from Dragonball appearing as a Super Saiyan 5, or Cloud from the video game Final Fantasy VII. Usually, it refers to artworks by amateur artists, or artists who are unpaid for their fan creations--so that, for example, a professional comic adaptation of The Lord of Rings movie would not be considered fanart.
Copyright
The legal status of fan made art in America may be tricky due to the vagueries of the United States Copyright Act. Generally, the right to reproduce and display pieces of artwork is controlled by the author or artist. However, fan art using settings and characters from a previously created work could be considered a derivative work, which would place control of the copyright with the owner of that original work. Display and distribution of fan art that would be considered a derivative work would be unlawful. However, American copyright law allows for the production, display and distribution of derivative works if they fall under a fair use exemption. Generally small excerpts from larger works that have no financial impact on the original and that are done for non commercial purposes could be considered a fair use. American courts also typically grant broad protection to parody and some fan art may fall into this category. This is a legal gray area, however, and legality can often not be determined under after litigation has concluded.
------------------------------------------------------------------------------------
Website: Briefs on the outside : Fan Art
briefs.toddverbeek.com/archives/Fan_Art.html
If DC Comics had a dollar for every drawing of the Superman made over the last 65 years, it'd make a substantial impact on their net worth. Same with Marvel and Wolverine. Even a relative newcomer like Todd McFarlane would do well with a dollar for every Spawn sketch ever made. After all what comics fan didn't at least take a stab at drawing their favorite characters as a kid? Some keep at it, and the drawings progress from the family room floor to the refrigerator door to the bedroom walls to the school notebooks to the college portfolio. And every last one of them is done without permission from the copyright holder.
Back in 1938, Joe Schuster drew a man in tights and a cape with an "S" on his chest. He sold the copyright to the company that is now known as DC Comics, and that means that only DC has the legal right to copy Joe's illustration. Even if you don't duplicate it line for line, you're making what's known as a "derivative work", and copyright law says you need permission to do that. So is DC going to sue little Jacob for his rendering in green crayon? What about Nathan's notebook of homemade pin-ups? Or the sketches that Jon - who used to draw the character for DC - does at conventions?
The answer is no. Maybe they could, but they're not going to.
The thing about copyright is that it's not "illegal" - in the sense that the cops might arrest you for it - to copy someone else's property. It's only "against the law" - in the sense that you're doing something you don't have a legal right to do - which means that it's up to the owner to decide if it's OK or not. And the owners of most comics characters generally don't mind that fans draw the characters for fun, or that pros draw them at cons for a few bucks on the side. The publishers recognise it as harmless to them, and probably good for fostering the affection of fans. Technically these "bootleggers" are doing it without getting explicit permission, but the permission has been given implicitly. Fan art is OK... because the owners say it's OK.
Where you're likely to run into trouble is if you start taking your drawings and put them into production. Rather than selling sketches for a few bucks a pop, you take one of your better drawings and start making prints of it. At that point, most publishers see your activities differently: you're publishing. Which is their line of work. When/if they find out about it, you can expect a "cease and desist" letter, and if you don't comply they'll likely take you to court.
It doesn't matter (much) whether you're making money from it or not. Copyright law doesn't care. All it says is that the owner has the right to say "yes" or "no". The only time the profit question comes into play is when the judge (assuming you've been found guilty of violating the owner's copyright) decides how much your fine is going to be. Copyright violation without profit generally gets the plaintiff only statutory damages, which can range from $500 to 20,000. Copyright violation with profits, can get exemplary and punitive damages added on, which can go much higher, depending on the amount of money involved and just how evil you were about it. (Yes, the courts can take the "evilness" of your actions into account.)
In the past decade, another wrinkle has been added to this question: the Web. If I make a drawing of "my fav'rit" Superman, scan it, and put it on my web site, is that the same as making it and showing it around to my friends (which is OK), or is it equivalent to making prints and giving them away? It's somewhere in between, and generally subject to the "sniff test". If it "smells" like just a fan showing people how he drew his hero, they'll let it go. If it has the stench of someone trying to take advantage of the character, or possibly undercutting the publisher's own use of him, they'll stomp.
Some people will argue, "I'm not making the copies, the people downloading it are!" Don't count on the courts to buy that reasoning. You might get a Strict Constructionist who agrees that you're not in literal violation of copyright, but you might get a Loose Constructionist who interprets whether you're acting consistent with the spirit of the law and throws the book at you.
------------------------------------------------------------------------------------
There were many other informative articles (to many to list here) but the above is basic to most of the articles that I read
So Basically...
Fan Art and Fan Fiction That uses Characters or Properties that belong to someone else without their permission is Illegal
Creating fan Art using TV Show Logos, copyrighted type etc. Is also Illegal Big No No! (examples would include the Buffy "B"; The Superman "S" and the Batman Logo to name a few.
Using photos or artwork found on the web for banners and Icons or wallpapers (no matter if they are altered using photo shop or other art program) is Illegal
Creating fan art is not Illegal...selling or distributing it is also using another photographer's photos or photos found on the web is frowned upon.
Will you be prosecuted for copyright violations? you could but probably not (see above)
doing Manips using stars likenesses is another thing that you should shy away from...From what I have read Allyssia Milano (Charmed) will not hesitate to slap you with a Cease and Desist order for altering her image.
Tiger Woods is another Celebrity that tried to sue an artist for painting his portrait and selling prints of the painting. Woods stated his rights were violated under California's 'Rights to publicity" law. Woods lost the lawsuit when the judge deemed the artist's work as "Art" but not before the artist paid huge court fees etc.
Disclaimers do not protect you from copyright violations if the person who owns the property wants to pursue the matter (But it doesn't hurt to have a disclaimer since it states your intent and could be the difference between a simple Cease and Desist order and a law suit)
The key when doing Fan Art is to always be respectful to the characters and essence of the subject matter that you are portraying in your Fan Art, in other words don't portray the characters in a degrading or uncharacteristic fashion (for example don't draw SMG nude or doing lewd things)
Copyright laws vary from Country to Country so the laws that apply here in the U.S. may differ in other countries
These are just a few of the many things that I discovered during my research.
Will it stop me from doing my drawings and posting them here on the forum and on my web site?
The answer is no ...But I will be careful about how things are worded and the types of images that I draw.
I did change the wording on my web site to say that I am accepting commissions but no where does it say that the drawings themselves are for sale. They are viewed as examples of my skills as an artist (which is acceptable but still very much in the gray area if anyone wanted to push the issue) I am also working on a well worded Disclaimer.
Should the above info discourage you from creating fan Art?
Of course not...just keep in mind some of the things mentioned, stay away from Logos, copyrighted type other artist's work (For example the upcoming Buffy comic art work) and most of all... be respectful to the shows and characters that you are paying homage to. As mentioned above many studios and companies appreciate Fan Art as long as you are not selling it on a wide scale.