If your work criticizes the original, however, any negative economic effect that criticism might have does not count against fair use. If your type of use competes with the economic market (or the potential economic market) for the original, that weighs against fair use. (4) The effect of the use of derivative works like yours upon the potential market for the copyrighted work. Using more than necessary weighs against fair use using only as much of the original as you need to accomplish your purpose weighs in favor of fair use. (3) The amount and substantiality of the portion of the original work you’ve incorporated into your derivative work. If the original work is fictional, that weighs against fair use if it is more fact-based, that weighs in favor of fair use. (2) The nature of the original copyrighted work. Commercial/for profit use weighs against fair use educational, editorial and noncommercial uses weight in favor of fair use. Editorial works that comment on the original work, or are “transformative” (more about this below) weigh in favor of fair use. This factor looks at two things: how your work incorporates the original work, and how your derivative work is used. (1) The purpose and character of your use of the derivative work. Instead, legal fair use involves a complicated analysis of four factors, which are weighed against each other in the context of the specific facts of each case. The fair use doctrine under copyright law does not give carte blanche protection from infringement to entire genres of derivative works like “fan art” or “mash-ups,” or to “noncommercial” depictions of famous characters. None of these ideas matches what qualifies as legal “fair use” under copyright law. Many believe that any use of famous characters is fair use so long as it is not “commercial.” Or they think it is fair to depict famous characters because they have become cultural icons and thus part of everyone’s social and political language. For example, many artists believe that it is fair to create derivative character art because they are not plagiarizing, that is, they are not claiming to have created the original characters. “Fair use” doesn’t mean what we would normally think of as “fair” in the usual sense of the word. I often hear from artists that they believe their derivative character art is legal because it is “fair use.” While the concept of “fair use” is widely invoked, unfortunately it is also widely misunderstood. While this practice is widespread, it is not necessarily legal. Often, artists also post their derivative character art on social media and print-on-demand platforms such as Zazzle, DeviantArt, and Redbubble, where people can purchase merchandise imprinted with the artwork. (For purposes of this discussion, I will refer to all derivative works based on famous characters as “derivative character art.”)Īrtists may sell their derivative character art at conventions. government work), or the derivative work qualifies as fair use. Unauthorized derivative works will be deemed copyright infringements, unless the original work is not protected by copyright (it could be old enough that copyright has expired, or it could be a U.S. In copyright parlance, these types of artworks are called “derivative works” because they are based on (derived from) and incorporate elements from another work. Seuss and Star Trek (more about that below). A recent example combined the characters and worlds of Dr. Increasingly, artists are also creating mash-ups of popular icons that combine character attributes from two different fictional worlds. Others are humorous caricatures, or show the characters doing or saying things that are inconsistent with their official personalities, such as children’s characters swearing or engaging in sexual activity. Sometimes these new works are classic “fan art,” meaning that they celebrate the original characters. Many artists create artwork based on their favorite cultural icons, such as comic book figures, or fictional characters from books, movies and television shows. This article is part of the Legalities series by OW&E’s Linda Joy Kattwinkel and was originally published as Legalities #43.
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