Fan Art and Fair Use: A Brief Overview of Intellectual Property Law for Artists
This post comes to you from the super smart folks at Avvo, a legal website dedicated to making legal easier for everyone. A few years ago, I helped organize a workshop for artists in collaboration with the New Orleans Craft Mafia where my friend Benjamin C. Varadi explained some intellectual property law basics. It was a very well-received event, and I know that copyright and fair use are topics that can be pretty baffling, so I jumped at the chance to let Avvo help demystify the topic!
Marcel Duchamp, most known for Fountain, was no stranger to the notion of a parody. In 1919, he inked the letters “L.H.O.O.Q.” on an otherwise unremarkable postcard of Leonardo da Vinci’s Mona Lisa. He also adorned her smiling face with a goatee and moustache.
Is this legal?
Aside from the fact that Leonardo DaVinci’s copyright would have long expired, Duchamp’s piece would (theoretically) be protected under the “fair use” doctrine of intellectual property law. Fair use is a case-by-case defense that can only be decided by a judge. Were a judge to consider a piece for the fair use defense, however, the most important factor is:
Is the work “transformative”?
To test this, it’s relevant to ask oneself the question, “Have I given new meaning, aesthetics, insights, or understanding to the work?” (More on this from Rich Stim at Stanford.)
Duchamp’s L.H.O.O.Q plainly passes this test because the letters, when said aloud, phonetically imitate a vulgar French expression. By transforming the Mona Lisa from a portrait of an aristocrat into a kinky smirking woman, Duchamp has fundamentally changed the meaning of the piece. In other words, the viewer walks away with a different impression than that of da Vinci’s original.
What does this mean for creating fan art?
In a sense, there are two options for artists hoping to riff off of famous characters, quotes, etc. The first is to contact the owner of the copyright and simply ask them if you can use it. Many creators appreciate fan art and consider it a wonderful supplement to their vision. Remember: the answer is always “no” until you ask! They may also ask for a cut of the sales, which, while a bummer, is definitely less expensive than a legal battle.
The second option is to take the risk, employ the “transformative” principal, and hope for the best. Etsy’s policy on intellectual property is favorable towards small-time artists, saying:
“If, within 10 business days of our receipt of your counter notice, the party who submitted the initial copyright claim doesn’t inform us of an action seeking a court order against you, the material specified in the counter notice may be reactivated.”
Essentially, it seems that someone must literally bring you to court in order for Etsy to remove your product. Be warned, however, that large companies may not turn a blind eye!
Before George Lucas sold to Disney, Lucasfilm was infamous for vigorously protecting its properties.
The good news is that, if fair use is applied properly, you may indeed win the legal battle! Whenever legal action is involved, however, your pocketbook will always lose.
Need more info?
Check out Avvo’s guide to starting a business for artists, which covers the basics of business registration and protecting your work.