Fan Art, is an art created by a "fan" based on the work of the original creator, be it a character from a comic, a story and other. It is a transformation of an original work into another work of art, thereby creating two pieces of work: the original work and the derivative work.
Under the Intellectual Property Code of the Philippines, derivative works are likewise protected by copyright. The question is, who can transform or adopt the original work? Can anyone just modify or change an original work and claim it as their own?
From the moment of creation, the copyright holder (original creator) enjoys several economic rights, one of which is the transformation of the work or the right to create a derivative work. Thus, not anyone can create a derivative work and it is only the original creator or the copyright holder that may freely transform his/her original work.
Having said all of these, one may conclude that Fan Art therefore infringes the copyright holder's economic right since, the original creator's permission was not sought prior to the transformation of the original work by anyone than the copyright holder. But why is it that Fan Art creations are tolerated by most original creators? Is it because the law classifies Fan Arts in the light of "fair use"?
Although the transformation of an original work was not among the enumeration of fair use under Republic Act 8293, section 184.3 of the same act provides that the limitations on copyright should be interpreted in such a way as to allow the work to be used in a manner which does not conflict with the normal exploitation of the work and does not unreasonably prejudice the right holder's legitimate interests.
Whether or not Fan Art infringes one's copyright or not is still an unresolved issue. Fan Art creators should keep their work personal and reasonable as not to unreasonably infringe the legitimate rights of the copyright holder. Otherwise, the copyright holder may, at anytime, invoke their legitimate right and ask the court to declare that the work infringes their copyright.
Fair use is an unclear concept (vague as I may call it) which opens several rooms for interpretation and may give courts different appreciations. I think criteria to be considered “fair use” must be clearly described as it can be an avenue to protect certain acts which are technically violative of copyright.
ReplyDeleteAgree. However, the standard principle of "expressio unius est exclusio alterious" should be taken into consideraton. Hence, since the law does not provide that fan art is included under the concept of fair use, it should be excluded.
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