Legality of Fan Art

Fan art is popularly characterized as artwork that is based on the character, costume, collage, item, or story that was created by someone other than the artist, such as a fan, from which the word is derived from.  As such, it can be collectively described as the art made by enthusiasts with reference to an original artwork, therefore it may be an adaptation or even an alteration of the original depending on the interpretation of the fan.  Accordingly, creation like this may be regarded as derivative following the provisions of Republic Act No. 8293, otherwise known as the Intellectual Property Code of the Philippines.

Section 173. Derivative Works. – 173.1 The following derivative works shall also be protected by copyright:

(a) Dramatizations, translations, adaptations, abridgments, arrangements, and other alterations of literary or artistic works; and
(b) Collections 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. (Sec. 2, [P] and [Q], P.D. No. 49)

173.2. The works referred to in paragraphs (a) and (b) of Subsection 173.1 shall be protected as new works: Provided however, 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. (Sec. 8, P.D. 49; Art. 10, TRIPS)

The term usually applies to artwork made by fans of characters from books and art derived from visual media such as comics, movies, or video games. However, with the advent of technology, fans may also create web banners, avatars, or web-based animations, as well as photo collages, posters, and artistic representation of movie, show, book quotes, and they may easily broadcast their subsequent art work to the whole world. This practice is already widespread and even tolerated considering that in a way it promotes the original work, and as the saying goes imitation is the best form of praise.

But, is this expression of fans and absolute? Can they just modify, interpret and create new work of art without any restrictions? It must be noted that the provision mentioned above explicitly provides that copyright protection of the original author extends to the derivative work thus only the original author has the right to subsequently alter or modify his original work. However, the provisions found in Section 185 of Republic Act 8293 will somehow permit the creation of fan art and this is commonly known as the Doctrine of Fair Use.

Section 185. Fair Use of a Copyrighted Work. – 185.1. 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.
185.2. 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.

Following this provision, it may be said that the derivative works such as fan art may be allowed so long that the same is in accordance with fair use. Also, upon careful evaluation of the provisions of the Intellectual Property Code, there are other instances wherein fan art may be regarded as lawful, namely; (1) when the original work which is the basis of the fan art is not protected by copyright; and (2) when the fan or creator of the fan art has the right, either by way of transfer or assigning, to use the original artwork.

Although, fan art may be considered lawful it is still best to create an original, something that you can call your own. Aside from the fact that you have all the rights pertaining to that masterpiece, said rights are protected by law.

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Sources: 1. Wikipedia, free online encyclopedia

2. Republic Act 8293, “The Intellectual Property Code of the Philippines”