Fan Art

The Legality of Fan Art

Fan Art in the Philippines is a mere species of what has been a deviant business enterprise as regards intellectual works considering piracy as detrimental to the right of creators and authors of intellectual works. Under Republic Act 8293, the criteria for fair use of a copyrighted work is that such art must be for critcism, comment, news reporting, teaching and research is not an infringement thus makes any other use as an infringement of the copyrighted work. It would however cover a derivative work which is considered a new work and is not extension of the copyright of the original work. Under the foregoing limitations, any fan art would be legal in the strict sense. Any simple alteration of the original art would fall under the derivative work hence protected but this has an economic impact in the Philippines where the original owner of the work may at any day file a case of infringement against almost everything being sold in the market like slippers by by crocs, clothes by nike and other possible object which may be the subject of appropriation appears an imitation of the the original. A fan art would be included as it is based on an original work and is made for profit. This would be a clear violation of the provision of fair use under the Republic Act 8293. It is considered a fan art where the premise is personal idolization or commitment of a fan for any originally made character like super heroes. Any use for profit would give rise to a right of the original artist of the work. In legal fiction the artist has every right to file an action for infringement but in the real sense, would any artist prohibit another to spread his creation? I personally wouldn't since this would be a legacy burnt in the heart of the public eye so that the creator would be known until his demise or even thereafter. However, this does not mean that the creator of the fan art is free to do anything with the derivative art made. Under Republic Act 8293, the original artist of the work has economic rights including the right to prevent Dramatization, translation, adaptation, abridgment, arrangement or other transformation of the work thus Fan Art is legal, we must take into account that the right belongs to the author of the work. For as long as the derivative work is not violative of the economic and moral rights of the author then the fan art is legal under the provion on fair use. It is the profiting from the derivative work which makes the fan art infringing . Unlike in trademark and patent, there must be confusion as to the article or object which prejudice the right of the owner when such article or object passes to the public misleading who the real owner is. In copyright, there is a clear view and understanding who the author of the artistic work is in respect of the original work where the fan art is based. From the very words used FAN ART it distinguishes that any reproduction of a work whether a copy or transformation, the public would immediately consider the work is not their creation but is merely based on an original work made by a fan to admire the artistic work of another or the representation depicted by the work. In addition, the moral rights of the author which cannot be waived must be considered as well but this would by absurd in case of fan art since such derivative work is to boost the impact of the author by any fan as to the original work. The fan art would be an act of good faith by the creation of the derivative work provided that it is made to favor the prominence of the original author of the work. But the author still has the right against any derivative work based on his original creation. But in legal fiction as to astistic work, no one would be injured, confused or mislead since a fan art is in itself an admiration of the original work of the author.