Josh Wattles, an adjunct faculty member at Southwestern Law School and adviser in chief to deviantART, the world’s largest online community for artists and art enthusiasts, presented at ComicCon 2012 in San Diego on copyright law and fan art, see the video here. According to deviantART, original fan art is a work in which the submitting artist has done 100% of the work but the work itself depicts characters, scenes or other themes which were properly created by another creative person. Fan art often offers the ultimate homage to the original creation but the legal issues may get sticky when the derivative work competes in a commercial sense. Wattles details the intricacies of black letter law in his 54 minute session, but in the end defines fan art as “a statement of saying ‘I love you.’ ”
This love still is subject to intellectual property protections of copyright law, trademark law, rights of publicity and unfair competition. Copyright holders receive exclusive right to copy and distribute their work and the right to derivative works based on the original creation. Trademark protects actual marks, characters and designs.
Wattles gives as an example that Harley-Davidson has trademarked the distinctive sound of its running engine.
Rights of publicity are controlled by state laws and include names, likeness, signature and voice as they relate to commercial use. Unfair competition deals with trading off the work of others and active misrepresentation for commercial purposes.
The best defense is implied consent — but not using fan art for commercial purposes and the claim of fair use also may provide a good defense for copyright and trademark infringement. Fair use claims look at amount and “substantiality,” commercial or noncommercial use, nature of the copyrighted work and the effect on the potential market. Exceptions also exist for criticism, comment, news, teaching, scholarship and research.
Wattles offers an excellent review of the issues and, like a true Hollywood showman, throws in live entertainment in the persona of “Harold Smith,” a cloaked and voice-disguised fan artist.