Many fans enjoy creating original artwork based on their favorite books, TV shows, movies, and musicals. This might include drawings, t-shirt designs, posters, jewelry, and other items featuring popular characters, figures, costumes, or scenery whose copyright is owned by someone else. While fans may think that their creations are wholly original and do not constitute copyright infringement, sometimes these works can cross the line and open the door to legal liability.

Technically speaking, fan art is a “derivative work,” meaning that it derives from another copyrighted work. Copyright owners enjoy the exclusive right to create derivative works and other artists cannot create derivative works without the copyright owner’s permission; doing so could open the door to a legal claim of copyright infringement. Thus, creating fan art without the copyright owner’s permission can be an illegal violation of copyright law.

However, copyright law allows parties to make “fair use” of another’s copyrighted work or character in certain situations. The Fair Use Doctrine is a common defense to copyright infringement and allows an artist, in limited situations, to use copyrighted material without getting permission from the copyright owner. The Fair Use defense is often implicated in news reporting, teaching, parody, criticism, and commentary. However, certain fan art may also qualify for the Fair Use defense.

To determine if an unauthorized derivative work i.e. fan art qualifies for the Fair Use defense, courts rely on a four-part test. However, these factors are not necessarily weighed equally by courts. The inquiry is highly fact-specific and a court may place more emphasis on some factors than others. Thus, even if one factor weighs heavily against a finding that the fan art is “fair use,” this does not necessarily mean that the defense is unavailable.

First, a court considers the purpose and character of the fan art, including whether the use is commercial or for nonprofit purposes. If the work is commercial, it is less likely to be considered fair use whereas private, non-commercial artwork is more likely to be deemed fair use. In this first prong, a court also considers how transformative the fan art is, and whether the fan art adds a new expression or message. For example, works that are commentary, criticism, or parody are more likely to be deemed transformative and are entitled to the Fair Use defense because these types of work add new meaning.

Second, a court considers the nature of the copyrighted work and whether that work is fictional or fact-based. If the copyrighted work is fictional, i.e. based on a novel, movie, or cartoon, a court is less likely to find that the fan art is fair use. Since most fan art is based on fictional works and characters, which receive strong copyright protection, this factor tends to weigh against a finding of fair use in fan art.
Third, a court looks to the amount and substantiality of the portion of the copyrighted work that has been used in the fan art. The more of a copyrighted work that is featured in the fan art, the less likely that the fan art will be deemed fair use. But this factor often looks to the quality over quantity of the copyrighted work. This means that even if the fan art only shows the character in the background or uses the character in an insubstantial way, it still could weigh towards a finding of copyright infringement.

Lastly, a court looks to the effect of the fan art on the potential market value of the original work. Under this factor, a court considers whether the fan art would result in an adverse impact on the market value of the copyrighted work.

Overall, the four-part test for the Fair Use defense can be complex and unpredictable. Indeed, many lawyers, judges and artists disagree about whether a particular use constitutes “fair use,” leading to split decisions and ongoing disputes. Thus, it can be hard to anticipate whether certain fan art will qualify as fair use ahead of time.
While some companies and copyright owners have a positive attitude towards fan art and generally do not pursue legal action, other companies are much more protective of their copyrighted characters and scenery. Therefore, it’s always best to consult an attorney and know what defenses are available to you when creating or selling fan art. Our office can guide you through these options. We are your Orange County trademark, copyright, and business litigation attorneys, here to help.