Fan Art is defined as an art
based on a character, costume, collage, item or story that was created by
someone other than the artist, such as “fan”
from where the word was derived . Fan Art likewise refers to an art derived from visual media
such as comics, movies, or video games.[1] The Fan Art materials are
created by “fans” in appreciation of the author or creator’s art work by giving
their own expression on the piece, may it be a character, story, video games or
even movies.
Fan works on Marvel series,
Harry Potter, Star Wars, and Mario brothers are among the famous pieces of fan art
in the market. These were created by the fans, followers and advocates of these
characters based on their own expression and art orientation. “Fans” are able
to provide their own sense of expression of a particular idea introduced by an
original work of art.
Copyright in general enables
the State to protect the authors of literary and artistic works from
unauthorized use and benefit by people other than the author. It provides for
the rights of the author against unauthorized reproduction, distribution and
display of his work.
Fan Art is based on an
original work or creation. The idea as set in the original work is used by fan
artists in the creation of their own representative art works. Does the use
then in fan art of the idea set by the author of the original work considered
as an infringement of their copyright? Does
the State allow the legality of fan art?
Republic Act No 8293, otherwise
known as the Law on Copyright provides for Derivative Works; which requires that there must be an “original work” from which the “new work”
was derived[2].
Section 173 specifically provides that:
Section 173. Derivatives Works.-
173.1
The following derivative works shall also be protected by copyright:
a) Dramatizations, translations,
adaptations, abridgements, arrangements,
and other alterations of literary or artistic
works; and
b)
Collections of literary, scholarly or artistic works, and compilation of data
and other materials which are original by reason of the selection or
coordination or arrangement of their contents.
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[3].
With the foregoing
provision, it can be implied that the use, exclusive to the enumeration in
Section 173, of the artistic or literary work is allowed by the law and that
the product of such use is given a recognition as that of a new work.
In the case of Fan Art, such
can be considered as a derivative work having been derived from an original work,
following the above mentioned provision saying among others that adaptations,
abridgements and arrangements of literary or artistic works are considered new
works. Fan Art therefore is considered a
new work because it is a byproduct of the fan artist’s expression and
interpretation of a prior original work; it is a result of the mental labor of
the artists in interpreting an original work.
Fan Art is a form of
expression by one about an existing original work. Such being an expression of
ideas though produced by an existing original work, should enjoy the same level
of protection as that of an original creation.
Everybody has the right to
protect its property including original creations. Artistic and Creative works
are creations of mind translated into a visual form. These are expressions that
the artists have of the world, a character or an idea. Such expression whether
original or a derivative from the original should be protected in any way
possible as recognized by the law.
Fan Art as a form of expression by one about an existing original work should enjoy the same level of protection as that of an original creation if said art turns out to be a truly transformative work. Otherwise, others may see it as an infringement. In one of the articles that I read, the writer commented that “To find protection in fair use, a second work must be an artistically transformative use of the first, not have a great economic impact on the first, and not take too much of the first.”
TumugonBurahin