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socrateaser, Lawyer
Category: Intellectual Property Law
Satisfied Customers: 36590
Experience:  Retired (mostly)
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I was wondering if someone could fill me in on Fan Art law.

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I was wondering if someone could fill me in on Fan Art law. I feel that I am not in the wrong doing this but I just want to make sure I stay within legal limits. I offer my personal services on a friendly basis. I offer anyone who is a fan or anything the ability to get themselves a custom printed image of their choice for their own personal use, all I ask is that they cover for my TIME, Materials used, as well as the shipping to get said item to them. I was wondering if I am OK to offer these services? I am not offering print services in bulk or mass quanties for Fan Art, I only make them per request. I do however have some samples on display to show people what they can get done. Am I ok offering my services like this?
Submitted: 2 years ago.
Category: Intellectual Property Law
Expert:  socrateaser replied 2 years ago.

17 U.S.C 106(2) protects an author's right to control works which are derived from an original work. For example, if you create an illustration of Harry Potter that looks nothing like the movie or book character, but has a lightening bolt scar and round rimmed glasses, and he is illustrated in a scene from one of the Harry Potter novels, then you could be committing copyright infringement based upon your derived artwork.

The counterargument is that if you are not using anything other than the "idea" of Harry Potter (i.e., a young wizard who wears glasses and has a scar on his forehead), then you are also not using any fixed expression of the idea -- and a fixed expression is what the copyright law protects -- not the idea.

Moreover, if your illustration is done for "criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research" (17 U.S.C. 107) -- and especially for parody, then that is fair use and you are not infringing on the original author's copyright.

Unfortunately, this issue has had no direct interpretation by the federal courts. However, I believe that it's fair to say that you could be infringing someone's copyright, dependent upon how heavily you use elements described by another author.

Hope this helps.

This issue has had very little legal interpretation.
Customer: replied 2 years ago.

Would I be ok offering my services to people who wish to print out their Fan Art without me getting into trouble for printing things that they might have chosen that may or may not be infringing? I just want to make sure that I am OK doing this since all I am offering is my time, shipping, and materials.

Expert:  socrateaser replied 2 years ago.
Copyright infringement is a "strict liability" offense. It's like getting a traffic ticket for speeding. You don't have to intend to speed or even be aware that you're speeding to suffer liability. The same is true of copyright infringement. Courts are generally more forgiving of innocent infringement, but it can still cost you a great deal of money -- even if all you do is reproduce the infringing party's work.

Obviously, if a creative work is not a direct copy of someone else's work, you may not be able to ascertain in advance that your actions are copyright infringement. Businesses, like FedEx Office purchase insurance to guard against innocent infringement. You may not be able to afford this sort of risk mitigation. If not, then it's up to you to try to understand the risk you face, by considering each individual job. There is no way that I nor anyone else can give you a one-size-fits all avoidance method -- other than to not print anything for anyone.

You must learn to make the judgment calls based upon the artwork and/or the artist who makes the request.

Hope this helps.
socrateaser, Lawyer
Satisfied Customers: 36590
Experience: Retired (mostly)
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