The IP in a T.
In today’s digital age, a multitude of intellectual property content in the form of artwork is being produced and sold online, ranging from prints to clothing, home decor and much more.
Whilst often such artwork will be a piece of original intellectual property, it’s also very common for derivative works of existing third party intellectual property to be created. In this article we’ll be focusing on the legality of fan art - artwork which is created by fans of, and based on, a fictional third party work.
Much of the fan art found online is derived from film, television, comic or video game intellectual property, with popular franchises like Star Wars, Marvel and DC Comics seeing a seemingly endless amount of derivative works being created on a daily basis. In some ways, the relationship is symbiotic - original successful works will attract fans and in turn those fans invariably will create derivative works which by their nature draw on the original intellectual property - be that copyright, trademarks, publicity rights or a combination of such rights. That intellectual property, however, and the right to create derivative works, is the exclusive right of the original intellectual property owner.
Where such derivative works are created by fans on a not-for-profit basis, many original intellectual property owners may see little interest in enforcing their rights, especially against fans and customers/potential customers of their products - a backlash can be bad for business and provided the derivative works are not be sold for commercial gain they may aid the business of the original intellectual property owners through fostering a sense of community and keeping an intellectual property in the public eye. There are numerous examples online of original intellectual property owners who even actively encourage not-for-profit fan art - such as, for instance, famed video games producers CD Project Red (creators of the Witcher franchise RPG games) who run fan-art competitions.
Problems are far more likely to arise where fan art is sold online for a commercial gain.
Where fan art is licensed from the original creator through a written licensing agreement, there are unlikely to be any legal issues if a licensee complies with the terms of a given license. Often, however, fan art will be sold without a license and whilst the original intellectual property owners may turn a blind eye to a not-for-profit infringement they are often unlikely to be as forgiving of something that infringes on their merchandising rights and bottom line.
Sometimes, such commercial fan art activity may still go un-policed from the original intellectual property rights owners, either because they are unaware of the infringements, or are aware but find it too onerous to pursue small-time infringers. The nature of the internet means such activity is likely to encompass multiple jurisdictions - it may not always be worthwhile pursuing a small time infringer in an obscure location. However, become larger enough and a commercial infringement will in all likelihood eventually attract the wrath of original intellectual property right owners.
If an action is brought against an infringing party, a question may arise whether the infringing fan art falls under any sort of copyright exemption such as fair use or fair dealing (dependant on the jurisdiction). As we have covered in other articles on this site, the fair dealing exceptions are quite limited in scope in Australia and cover uses such as research and study, review, news reporting etc. Applying such exceptions to fan art, however, may prove difficult to prove in court. It’s worth noting that these exemptions also differ (or can disappear) depending on the jurisdiction in question.
Infringement of original intellectual property rights not only provides a problem for the creators of the fan art, as even third parties that sell those works can come afoul of the law.
For instance, in Australia, for marketplace sites that sell user-generated artwork, there exists a clear liability risk that copyright infringing material will be uploaded by users that brings about a claim from a content owner. Whilst some entities (such as ISPs) in Australia are protected via safe harbour legislation from claims made against them due to infringing users, such protection does not extend to online marketplace platforms.
In a recently decided case, online creative marketplace Redbubble was sued in the Federal Court of Australia by Pokemon Company International over infringements by users of Redbubble of Pokemon intellectual property. In the case of Redbubble, the image in question was a mash-up of Pokemon and Simpsons cartoon imagery, however, despite a new image being created it used the intellectual property of two separate existing intellectual properties without a license. The Federal Court in this case found in favour of Pokemon Company International. Enforcing an original intellectual property right, however, may not necessarily lead to a significant monetary remedy - Pokemon Company International was awarded only $1 in damages - this was due to the designs not being expected to actually yield royalties, nor be available within the existing Pokemon universe. The Federal Court did comment that such marketplace sites (due to not being content creators themselves) needed to have adequate measures in place to police copyright infringement on their sites, Redbubble had taken such steps. As of June 2018, however, Redbubble has found itself on the end of another lawsuit relating to fan art, this time, however, in the United States and concerning consumer electronics and video games company Atari.
So what’s the practical lesson if you are seeking to create fan art of someone else’s intellectual property and stay on the right side of the law? - get their prior express written permission, regardless of whether you are using it for commercial gain or not.