Dissenting Opinion

Cutting Edge.No-Non-Sense.Straightforward.Fearless.Just strictly Business...and Law by Spammer Di Hacker

Friday, August 31, 2012


The Legality of Fan Art in the Philippines


Fan art may be commonly defined, as that "derived" medium of expression from an original, either in traditional mode such as drawing, painting or an expression in digital mode such as image manipulation of photos or videos. The meaning of derived here means that the resulting art was a by-product of the "inspiration" (or otherwise) from an original.

The term now becomes popular with the propagation of websites dedicated to hollywood movies, syndicated series, and a whole gamut of fictional characters on the web. Adoring fans has used their creative juices to "borrow" something old to create a "free and self-expression," to something new.

In the earlier days of the internet, fanart served as a convenient way to advertise and spread popularity of these ideas, characters, etc,...which made authors of artistic and literary expression a household name. HOwever, with everyone having access to internet and providing all Juan dela Cruzes of a 5-second of fame, controversies involving fan art arise.



Selling of Fan Art

The controversy in legality of fan arts usually begins when certain "rights" or thresholds belonging only to the author is infringed by fanartist.The IP Code provides that part of the rights of the author as owner of his copyright is, "...in the case of original literary and artistic works, copyright shall belong to the author of the work." This includes the reproduction,distribution, public display, and communication. In short, the author enjoys the economic gain from his original work. A counter argument of fan artists is that, their expression, though derive, also has some original elements on it.

In this scenario,  fan art, as it has become now, may well transgress and infringe on this right. Counterfeits and fake art has become prevalent nowadays, taken as the original for all its worth. Fanart in this sense, becomes a competition of the original and wholly disregards the respect and all other rights that should be accorded and enjoyed by the author.

According to The Intellectual Property Code of the Philippines, an author possesses certain rights by virtue of his original expression. As stated in the IP Code, SEction 172.2. Works are protected by the sole fact of their creation, irrespective of their mode or form of expression, as well as of their content, quality and purpose. (Sec. 2, P.D. No. 49a). It provides that, in the case of original literary and artistic works, copyright shall belong to the author of the work." 


Fanart as a Derivative Art is Protected by Fair Use

The boundaries of how and when Fair Use comes as an argument to support fanart is still in a limbo. This is because Philippine jurisprudence is replete of actual cases which can be used as an stare decisis on when and how Fair Use may apply. The IP Code does provide 4 factors that may be considered such as in order to ascertain fair use, to wit: 
(a) The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit education 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.

Then again, there are now hard and fast rules as to how to determine its application. Again, there's two sides to every contention, and it all boils down to the merits of each indivudual case.


Notice to Author Makes Fanart Legally Protected 

Here is another point of contention, as not all authors are united as to what constitutes fanart as a derivative, legal work versus, that of a clear copyright infringement.The Fair Use Doctrine is rather complex and yet to be actually used in court so as to define certain legal boundaries. This then makes a complicated idea on what constitues infringement as to what is fair use.



Fanart if not sold does not infringe copyright laws

Another classic argument is that, since authors take drastic action only when their economic rights are transgressed, therefore, for as long as the fanart is not sold or "non-profit" then the author of the original may not claim any copyright infringement.

Though may be partly true, still authors of original works are indecisive about how and when fanart causes infringement and when and what circumstances will make them initiate corrective or legal action against fanartists.


Based on these possible issues arising from fanart, it seems that much is left to be desired as to when and how fanart poses a threat or actual infringement to the rights of an author.


Likewise, it is also best to note that these fanarts may not only infringe on copyright but on trademarks as well.

However, despite a very strong opposition and opinion - legal or otherwise, suits of this type are again, one in a million, especially in Philippine setting. This makes for a case which may be publicly blown, spending millions of pesos and years and years of court time, yet may not prove lawsuits of this type may be only true in theory.

For now, it would be best to strengthen our laws on intellectual property to protect authors from situations and issues arising therefrom. From the author's end, it would also be wise to subscribe to Creative Commons to afford certain protection as how far protection of their work should serve them.

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