Since posting my last blog about my 13 Reasons Why fan art being used to sell phone cases without my knowledge I have had an interesting response - all of which I love to hear. There has been amusement, there has been anger but the response and discussion I'm most interested in is the matter of copyright and permission of use.
Quite validly the point was brought up of whether I had seeked out permission of use of the original reference photo to which I replied that I had not, solely because I had never intended on selling the work since I knew the original ideas didn't originate from me and therefore could make me liable in a court of law if I made any profit. To this I was informed to my surprise that technically any "derivative work" is technically an infringement of copyright and so even if I didn't sell the work I was still breaking the law. Shock horror! I'm a criminal!
I think part of me has always known this could be the case but chose to ignore it like so many others because I didn't see how I could be hurting anyone. For me I was just showing my love for something the best way I know how - Art. Never did I think I was claiming the right to ownership of ideas or stealing property. But it could be argued that I have.
So after this discussion I decided to start doing some more research on this subject and came across this video in which Josh Wattles, an employee of Deviant Art and former lawyer, talks about the ins and outs of Copyright law and how it effects fan art. It's quite a long video but if you have made fan art or still do I highly recommend you watch this.
In the video he goes through Copyright law and breaks it down to simple bullet points showing exactly how fan art breaks the law but also how it can be argued under certain circumstances that it doesn't under fair use and even free speech. He talks about how it shouldn't be wrong to express love for something and how strange it is that you could be brought into a court of law because of that love.
While watching the video I found myself nodding along whole heartedly. I felt he understood where people like me were coming from. I think thr saving grace in all of this is that I have never sold any works that have derived from other people's work. In the past I had considered it after seeing that so many other people seemed to be making a living out of it without consequence but in the end it didn't sit right. My work always seemed too close to the primary source and hardly "transformative" as argument against copyright infringement might suggest.
But even so there are fantastic pieces of work out there that otherwise wouldn't be there without fan artists. Fan art could be argued to be the best kind of free advertisement. I think that's where it can all get a bit blurry. Fan Artists create work that other fans want and the original creators are not filling that void. But at the same time fan artists are also building upon ideas that aren't their own. Youtuber, The Drizzly Druid, talks about this in her video "Selling Fan Art is Illegal" and explains it quite succinctly.
Going forward I think I will continue taking part in the fan art community but only for the sheer love of it and I definitely won't be seeking financial gain. However I think it is time for me to step up my game and stop being so reliant other people's ideas to spring board off of. It's time to get more creative and to start presenting my own ideas to the world. Time to get a little more brave and personal!
Hazel, xoxo
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