Unlike in the USA, the Philippine jurisprudence regarding conflicts between fan art creators and copyright owners is barren. Is it because fan creations are legal in the Philippines?
Is it legal?
Under the Intellectual Property Code of the Philippines (IPC), copyright of original literary and artistic works shall belong to the author or creator of such work[1]. The IPC also unequivocally reserves the right to make transformation and communicate derivative works of their original work to the public[2]. Derivative work includes dramatization, translation, adaptation, abridgment, or other transformation of the original work.
A fan art means an artistic or literary work based on a character or a story created by a person other than the artist who created the original character or story where such artwork is based. As such, a fan art is a derivative work or a transformation of an original copyrightable work. It is therefore not impossible for these fan creations to be the subject of legal tangles and strangles.
Since fan arts are mostly built upon or an offspring of the whole or part of an original copyrightable work then understanding and employing fair use is the only hope of fan creators to make sure that they can walk out of legal battles against the copyright owners unscathed.
Section 185 of the IPC provides that the fair use of a copyrighted work for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. Furthermore, in determining whether a fan art is fair use, the following factors shall be considered:
1. purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole;
4. the effect of the use upon the potential market for or value of the copyrighted work.
Based on the above, a fan art which has for its purpose critiquing an original work is fair use of a copyrighted work. For example, a fan creation of Ash Ketchum of the animated series POKEMON that depicts the said character as violating animal rights is a permissible fan artwork because of the purpose of its use.
It is also important to always disclose clearly that the fan art is unofficial and that it is just a fan art.
The most sensitive among the abovementioned factors in determining fair use would be the effect of the fan art upon the potential market for or value of the copyrighted work as when the fan art competes and is inimical to the market of the original work. So it is always safe to be non-commercial than profit from your fan art.
Tolerating Fan Creations
The reason why fan art’s popularity is rising so fast and that it rises almost unchallenged despite the legal tangles and strangles involved is that it also serves as a free advertising medium for commercial original works.
The creators and artist would also want to avoid burning bridges with their fans especially when they do not have harmful effect upon the market of the copyrighted work.
Come Original
The moral lesson is: while it is true that there may be such permissible fan art or fan creation and that as much as possible creators and artists would not want to antagonize their fans by aggressively pursuing copyright infringement cases, it is still better if you “come original” as what the 311 song entitled “Come Original” says.
