Friday, August 31, 2012

Legality of Fanart in the Philippines

To start of my blog, let us first define what fan art is through the help of the ever reliable, as some would say, Wikipedia.

"Fan art or fanart is artwork that is based on a character, costume , collage , item, or story that was created by someone other than the artist, such as a fan, from which the word is derived from. The term, while it can apply to art done by fans of characters from books, is usually used to refer to art derived from visual media such as comics, movies or video games. In addition to traditional paintings and drawings, fan artists may also create web banners, avatars, or web-based animations, as well as photo collages, posters, and artistic representation of movie/show/book quotes.
Usually, it refers to fan labor artworks by amateur artists, or artists who are unpaid for their fan creations—so that, for example, professional comic adaptations of the Star Wars films would not be considered fan art while a version done by an unaffiliated fan would be. The distinctions here cannot always be finely drawn and the actual status of particular works can often fall into a gray area"

 It is really hard to know if fan art is legal or not  because from what was said in the definition above, an adaptation made by a professional would not be considered as a fan art, therefore  illegal, but an adaptation made by an unaffiliated fan would be considered as fan art and thus not illegal. To help us in resolving the questions about its legality, let us cite article 173 of the Copyright Law.

"Section 173. Derivative Works. - 173.1 The following derivative works shall also be protected by copyright:
(a) Dramatizations, translations, adaptations, abridgments, arrangements, and other alterations of literary or artistic works; and

(b) Collections of literary, scholarly or artistic works, and compilations 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

It can clearly be seen in  (a) of Section 173 that adaptations and other alterations of artistic works are protected by copyright thus you can safely conclude that the so called "fanart" which usually is an adaptation and alteration of an original work is an infringement on the copyright of the owner.However there is a limitation on the rights conferred on by Sec 173, Sec 173 is correlated with Sec 185 or the so called Fair-use Doctrine.

"Section 185. Fair Use of a Copyrighted Work. - 185.1. The fair use of a copyrighted work for criticism, comment, news reporting, teaching including multiple copies for classroom use, scholarship, research, and similar purposes is not an infringement of copyright. Decompilation, which is understood here to be the reproduction of the code and translation of the forms of the computer program to achieve the inter-operability of an independently created computer program with other programs may also constitute fair use. In determining whether the use made of a work in any particular case is fair use, the factors to be considered shall include:

(a) The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;

(b) The nature of the copyrighted work;

(c) The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(d) The effect of the use upon the potential market for or value of the copyrighted work.
185.2. The fact that a work is unpublished shall not by itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Sec 185 states that the fair use of a copyrighted work applies on comments, news reporting, teaching , scholarship, research and other similar purposes not intended for copyright infringement. It was never mentioned in the said section that this could also be applied on the so called "fan art".

But the question is, whether or not the law is being strictly applied in our country? Is there any jurisprudence enough to support this law?Is this "fan art" a valid exercise of our freedom of expression?

There are still many gray areas as regards the legality of fan art but this does not preclude copyright owners to exercise their rights which is clearly defined in Sec 177 of R.A. 8293

"Section 177. Copyright or Economic Rights. - Subject to the provisions of Chapter VIII, copyright or economic rights shall consist of the exclusive right to carry out, authorize or prevent the following acts:

177.1. Reproduction of the work or substantial portion of the work;

177.2. Dramatization, translation, adaptation, abridgment, arrangement or other transformation of the work; 

177.3. The first public distribution of the original and each copy of the work by sale or other forms of transfer of ownership;

177.4. Rental of the original or a copy of an audiovisual or cinematographic work, a work embodied in a sound recording, a computer program, a compilation of data and other materials or a musical work in graphic form, irrespective of the ownership of the original or the copy which is the subject of the rental; 

177.5. Public display of the original or a copy of the work;

177.6. Public performance of the work; and

177.7. Other communication to the public of the work."
You can find above the economic rights which the copyright owner can do, it includes the right to prevent,authorize or  prohibit those so-called "fan art" if it seems that his work is being infringed in any other manner.

To sum it up, the legality of fan art cannot be concluded in today's time as there are so many gray areas in the law, and also there are so few jurisprudence in which the law has been applied with.


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