The Rice Hat Samurai
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Kick reason to the curb and make the impossible possible.
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Post by The Rice Hat Samurai on Jul 5, 2014 2:22:20 GMT
Saw this posted a few days ago, figure I'd re-post it here for debate purposes. Annnnnnd go. Is Fan Art Illegal?
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eliste
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Post by eliste on Jul 5, 2014 11:48:20 GMT
Do you want opinion, or do you want the legal position? Because I study Intellectual Property Law.
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The Rice Hat Samurai
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Kick reason to the curb and make the impossible possible.
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Post by The Rice Hat Samurai on Jul 5, 2014 18:22:45 GMT
I'm not gonna tell you what to post, that's your call. /o/
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eliste
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Post by eliste on Jul 5, 2014 21:16:16 GMT
Well, it depends on what type of discussion you want to have. If you want something lighter, then that is a different discussion.
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Post by Toni on Jul 5, 2014 22:06:29 GMT
Oh Marc can take it, I say let's have a real discussion about it and go for the jugular.
This is the #1 question I get asked a lot. Technically if you do not own the intellectual rights it is copyright infringement. Personally I think there is a gray area and I believe they won't pursue litigation against someone that makes original, one of a kind, non mass produced pieces. Personally those that are able to draw and make their living off of drawing other people's characters and then mass producing those pieces but have no original designs themselves is what gets under my skin.
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Post by Lexxi on Jul 5, 2014 22:57:50 GMT
I've wondered about that. I've been asked to write up the pattern to my Metroid quilt, but my concern was if I went to sell it, Nintendo could/would go against me for copyright infringement, which is what has always made me hesitate. Since I think then that gets into another area - I don't think they'd go after me for making and selling a quilt, but selling a pattern with their character(s)... I don't know.
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Post by Toni on Jul 6, 2014 0:29:09 GMT
That is exactly the reason I do not sell my patterns. There are people that do: www.etsy.com/search?q=mario%20quilt%20pattern&ship_to=US (Note, not all are patterns for sale). Basically I have lived by the rule of not blatantly mass producing or selling anything that is not individually produced and they probably will let it slide. The moment you mass produce you could bring attention to yourself and get a cease and desist letter. They could theoretically shut down everything you do with your business and not just the infringement parts, so I try to be very careful.
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Yurtle
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Post by Yurtle on Jul 6, 2014 21:26:23 GMT
Well, that video kind of just killed my desire to craft today. I mean, I knew, but it's different when you hear it laid out like that.
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The Rice Hat Samurai
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Kick reason to the curb and make the impossible possible.
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Post by The Rice Hat Samurai on Jul 6, 2014 22:04:43 GMT
The thing is, there's nothing innately wrong with fan art and making money off of it. As long as you're not mass producing you'll be fine. It's something to bear in mind, not something that you should let stop you.
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Post by Toni on Jul 6, 2014 22:26:01 GMT
Exactly. Don't let it stop you Yurtle. Your cards are beautiful and pay tribute to the subject you base them on. You do not mass produce and create wonderful works of art. Just don't sell your patterns and you are fine.
I actually liked the video. It reinforced a lot of what I have been told and what I believed.
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Post by Lexxi on Jul 7, 2014 2:59:35 GMT
I also feel like if Nintendo/whoever went after <individual crafter who is just trying to express their love of the Nintendo game> then that would be some seeeeeeerious bad publicity. Not that that should be justification for anything, but kinda from a step aside perspective, with a lot of the fan art that I see, I'm not too worried.
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eliste
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Post by eliste on Jul 7, 2014 10:08:45 GMT
Ok, so here's the legal position. This is not legal advice, but it is what the current law is.
Fan art is almost always copyright infringement. If something has been designed, created, and has an ounce of thought put into it, it will almost certainly count as protectable under copyright. Fan art may be other types of intellectual property infringement too, but we'll get to that. Copyright prevents anyone from replicating your work or making works that are "derivative" from that work without the copyright owner's permission. To do so, as fan art does, is an infringement.
There is a saving grace, in that there are exceptions. Most countries have exceptions for reporting, comment, criticism, teaching and research exceptions, however that is unlikely to help fan art creators. Some countries have other exceptions.
The most known exception is the US's "fair use" policy. There are four factors under fair use that can allow what would be an infringement to be ok. They look at the purpose and character of both the work and copy (and it needs to be truly transformative, not just riffing off aka derivative), the nature of the copied work, how much was taken by the copy, and whether it will prejudice the market for the original work. Some fan art will be able to fall into this category, but the ironic thing is that the closer it is to the "original" the more likely it will not. Changing mediums (so moving from 2D images to 3D etc) is the type of thing that *may* help it not infringe. Whether it is done commercially or non-commercially can affect whether its deemed ok, but this is less and less relevant.
HOWEVER, it is very important to note that fair use ONLY APPLIES IN THE US. Everyone on the intertubes always gets this wrong. They Google fair use and go "great, I'm sorted" however if you live outside the US, you are almost certainly NOT ok. Even if you made the work within the US, the minute you try to sell it outside the US, you're in trouble. Technically, even just making something for yourself might not be ok outside the US.
The US's fair use exception is by far one of the broadest that is out there. Most other countries do not have an equivalent. The UK and Ireland, for example, have "fair dealing" however they only apply in very limited circumstances, none of which would apply to fan art. There is talk of new exceptions for parody and derivative works, however they haven't properly been implemented yet.
The flip side is that its worth noting that the US also has some of the harshest penalties for copyright out there. Statutory damages are applicable no matter how small the infringement is, which can mean up to $150,000 PER INFRINGEMENT. So they're not kidding around if you get done for it.
So, the basic tenet is fan art is almost always copyright infringement. You may be saved if it is transformative and doesn't impact on the cash flow of the original copyright holder.
Trademark infringement is actually also common among fan art, and this is where you are more likely to see companies going after copiers. Trademarks are special, in that they are designed to indicate where the product is coming from and if the owner does not protect them by going after infringers, then they lose the trademark. So you're more likely to see companies going after people who copy trademarks. Fair use for trademarks is exceedingly limited and mostly applies to commentary and criticism (so the news can show a company's logo for instance to talk about it). There are specific exceptions, none of which would really apply to fan art.
Mickey Mouse, for instance, has been trademarked. Disney and a bunch of other companies have realised that if you trademark something it can last forever, so these are the ones that will be more likely to be litigious. I wouldn't be surprised if many of the titles of games we play were trademarked, but I haven't bothered checking.
Trademarks are harder to protect in general, so they're more litigated because they also tend to be more valuable. Again, the fines you can get hit with in the US can be pretty scary (up to 2million if used in commerce for instance). The US and the rest of the world are slightly more in sync here, but again the exceptions can vary from country to country, so if you're going between them its good to know the differences as they do exist.
So yeah, there ya have it.
A good thing to remember in law in general is that lawsuits cost a lot. If your net worth is small, it may not be worth their while going after you, although it has happened, and there have been cases in the US where a random joe was hit with something like $4 million in statutory damages for sharing an album. It is also likely that those who have been gone after have settled quickly because of this, and settlements often come with gag orders attached reducing further the number of cases like this that we hear of. Making the assumption that you are "safe" is a judgement call for anyone involved in fan art.
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eliste
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Post by eliste on Jul 10, 2014 13:03:52 GMT
I feel like I killed the forum. This is why I asked... /sigh
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Yurtle
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Post by Yurtle on Jul 10, 2014 15:17:44 GMT
No, you didn't kill it. I think most of what you wrote was covered in the video. It was an hour long! It's just a depressing topic for those of us who would like to make a little money off of fan art. We're legally not allowed but what can you do? It's just a "keep going until you get caught" or a "don't do it at all and be part of this community" sort of situation. If we do get caught, it's not like we have a real defense. I dunno.
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Post by Lexxi on Jul 10, 2014 15:41:51 GMT
I feel like I killed the forum. This is why I asked... /sigh Oh, no, not at all. I enjoyed reading what you had. I had nothing extra to contribute and didn't want to go with "yeah, that" for a response
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