mewitti said: Hi! Your blog is amazing, thank you for running it! On the topic of fair use and fanworks--I've read that fair use can ONLY be established in a court of law. But I've also seen a lot of people who claim, "Oh, yeah, my fanart is DEFINITELY fair use", often to justify selling their fanart without licensing. However, they've never actually been to court for an official decision. Is this safe for them to do? Can preemptively claiming fair use run the risk of any kind of fraudulent claims charges?
Thank you so much!
No, Fair Use does not have to be established in a court of law for someone to say that his or her work is protected by Fair Use. Fair Use is a lawful use of copyright, and the courts - and legislature - have set out some very clear lines for what is Fair Use - although, admittedly, the further you get from things that have been dealt with by courts, the more blurred the lines are.
Commercial sale of a follow-on work doesn’t mean it can’t be Fair Use, but it does impact the analysis one should go through. In other words, if someone is selling their fanworks, it’s not completely and definitely safe to do so, but it might be, so they’re not really preemptively claiming it’s fair use - they may actually reasonably think that it is, and they may be right.
If someone reasonably thinks that their work meets the criteria required for a showing of Fair Use, then (a) they don’t think their work is infringing on another’s copyright and (b) they’re not engaging in fraud.
If someone is selling a work that’s copy of something that’s already been produced by the copyrightholder with, say, a Photoshop filter to change the colors, that’s probably not fair use because virtually no creativity was used to create the follow-on work. However, if someone is selling something that is inspired by something that’s protected by copyright, or that parodies it, or that transforms it into something else, then one can say that it’s probably fair use.
As the court said in the Neil Gaiman v Todd McFarlane case a few years ago, McFarlane’s creations might not have been infringing if he’d done something very different from the original work.
If defendant really wanted to differentiate the new Hellspawn, why not make him a Portuguese explorer in the 16th century; an officer of the Royal Navy in the 18th century, an idealistic recruit of Simon Bolivar in the 19th century, a companion of Odysseus on his voyages, a Roman gladiator, a younger brother of Emperor Nakamikado in the early 18th century, a Spanish conquistador, an aristocrat in the Qing dynasty, an American Indian warrior or a member of the court of Queen Elizabeth I?
Fraudulently claiming copyright ownership of something can’t result in a penalty of more than $2,500, but that’s not really what you’re concerned about. Fraud is generally a common-law cause of action, but it only occus when someone has intentionally misrepresented facts to someone else that leads to that party’s detriment. We’re not sure what kind of detriment someone could suffer if they purchased a fanwork that turns out to not be fair use. Nobody has ever - to the best of our knowledge - sued someone who’s purchased a book or picture or DVD or watched a film on YouTube or purchased an iphone case or t-shirt that has fanart on it, so there wouldn’t be a detriment that someone’s experienced. In other words, it might be a false claim, but it wouldn’t be common law fraud.