#2 - Trademark and Copyright Law vs Fan Art
The following article is a transcript of Episode 2 of the Fan Art Series on Don't @ Me Podcast. ✨Listen Here✨
Disclaimer: I am not a lawyer, have never or do not have the intention of studying law, therefore I’m not qualified to give legal advice. This is just presenting research and providing commentary. Please seek official legal advice for thorough information and representation if you want more information about anything said in this podcast.
Hey there.
Welcome to episode two of the Fan art series on Don’t @ Me!
I’m your host, Mikaela Copland and today I’m answering the age old question of ‘Is fan art really illegal?’
We’ll be looking at trademark and copyright law, mainly from the perspective of the law in the United States.
Firstly, let’s answer the question of legality. When you type in “Is fan art”, into Google, the three top results are
“Is fan art copyright"
"Is fan art legal?"
"Is fan art illegal?"
The people want to know!
So I’ll answer.
Yes.
A simple yes, it’s illegal.
Why? Because of a tricky thing called the law. Specifically copyright and trademark law that I’ll argue hasn’t caught up to fan art and internet culture.
Quoting the Government of the united states,
“Copyright protection subsists, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device."
One thing to remember is that copyright automatically exists when you make something, you don’t need to register it, especially in the US, UK and AUS.
But what types of things are protected by copyright?
Well, specifically the following 8 works of authorship:
(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.
I would say that most if not all fan art comes under those 8 categories.
Now we’ve looked at what you can copyright, what CAN’T you copyright?
Quoting the United States Government, “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work."
For example, if Billie Eilish told you she wanted to write a song about fish, that idea isn’t copyrighted. Once she produces the song, the audio is copyrighted.
But - what about lyrics?
Well, yes.
As stated above, musical works including accompanying works are copyrighted. This usually means a string of words that’s original and identifiable, such as "There's vomit on his sweater already, mom's spaghetti!" by Eminemn. As these lyrics are written down and produced in a song, they are copyrighted. Some artists trademark specific lyrics ahead of time for an extra layer of protection, such as Taylor Swift whose case we’ll explore in episode 5.
You must be thinking though, how does a musician ‘own’ a word? Musicians would just be caught up in different copyright claims all the time if they never used the same words in the English language right?
Yep!
So it’s unlikely that general phrases and words are copyrighted, such as “Sorry." It might be a different story when you reference the artist in the title, such as titling your art Sorry by Justin Bieber - as you’re referencing that the two are related.
I’ve also read up on song titles and they’re less likely to be copyrighted as according to AskaMusicLawyer.com “copyright law protection does not extend to song titles because they usually are short and lack sufficient originality."
Think about how many songs are called “Love” right? But if it’s an ultra specific song title, such as Bohemian Rhapsody, you best believe that’s got a trademark on it.
Let’s move onto trademarks now.
The difference between copyright law and trademark law is that copyright leans toward protecting works such as books, whereas trademarks protect your business's brand, according to lawpath.com.au.
For example, Justin Bieber’s song ‘Baby’ is a copyrighted work, whereas the name Justin Bieber is trademarked as his brand. Opening up a shop proclaiming you are selling ‘unofficial Justin Bieber jumpers’ could land you in hot water as you are infringing on his trademark since he has not given you permission to use it. Even if the design is completely different to anything he has created before, you are still profiting off his brand.
You can look up trademarks on Trademarkia.com. On there you will find an abundance of information about the terms and conditions surrounding a trademark. It often covers a multitude of things, many that would be classified as ‘merch’. It goes from as broad as clothes to as specific as hair bands.
Each trademark can be different so I advise you to look up the celebrity or brand’s name on trademarkia to find their particular details. Also, you can often get a ‘sneak peak’ on what they’re working on, as they register trademarks that are publicly available ahead of their launches.
So if trademarks are exclusive to the owner, how can shops like Target use them?
Well, you need to negotiate a contract with the trademark holder.
According to small business.com, “Be prepared to show how you plan to monetize the mark and how much you'll pay the trademark holder for use. Trademark licenses can involve a principal payment and a per-item royalty, so keep your bottom line in mind.”
As you can see, it’s obvious that companies would be in endless legal negotiations if they licensed every bit of fan art sold.
This is where I stopped researching for a second to seriously ask myself - if a character is copyrighted and the brand is trademarked, fan art as a whole is just.. straight up illegal right?
How does it still exist?
And that’s what we’ll be exploring in the next episode with discovering how businesses and celebrities have a love / hate relationship with fan art.
If you have any questions you want me to research, please DM me on my instagram @dontatmepodcast or via the contact form on my website. Catch ya in the next episode.