Seller Handbook

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Fan Art and Fair Use: One Truth and Five Myths

The Fair Use Doctrine is one way U.S. courts decide whether reproduction of a particular work is legally allowed.

By Sarah Feingold Apr 16, 2010
Fan art and fair use copyrights on Etsy
Photo by Whisky Ginger

As we can see from news stories, and even "Law and Order," there are at least two sides to every legal dispute. Sometimes a seemingly clear cut case can get turned on its head by a legitimate excuse, which makes the behavior perfectly legal. In the case of an allegation of copyright infringement, one excuse is the “Fair Use” Doctrine.

But what is the Fair Use Doctrine?

In the U.S. the Fair Use Doctrine is one defense to an allegation of copyright infringement. It’s a way to say, “Yes, I copied, but my excuse is so good that I should be allowed to copy.” Section 107 of the Copyright Act outlines certain purposes for which the reproduction of a particular work may be considered “fair,” such as criticism, commentary, news reporting, teaching, scholarship, and research. According to this section, there are four factors to be considered in determining whether or not a particular use is fair:

  • The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
  • The nature of the copyrighted work;
  • Amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  • The effect of the use upon the potential market for or value of the copyrighted work.

And take that with a grain of salt because courts disagree about how to interpret these factors or which ones are most important.

Truth 1: Relying on the Fair Use Doctrine as a loophole to copy might be dangerous.

Each artist should research potential legal issues and use good faith when assessing the risks and benefits associated with creating and selling art. Sure, the Fair Use Doctrine may provide a defense to copyright infringement for some artists in some cases. But the four part test is complex and unpredictable as many lawyers, judges and artists may disagree on which factor(s) are the most important. The Fair Use Doctrine is not a loophole for copying.

Myth 1: All intellectual property owners have the same ideas regarding fan art.

Some intellectual property owners may see a specific use as free advertising, fan art, or otherwise fair. However, others may see a similar use as lost licensing profits, branding issues, and/or copyright infringement. The intellectual property owner’s conclusion may depend on a number of factors and may vary from use to use.

As you may know, Etsy removes material when we have proper notice according to Etsy’s policies. Many times Etsy is not privy to the reasons behind an attorney’s complaint — or lack of complaint. Here's an example: One time an attorney for a popular brand contacted Etsy and asked us to take down a handful of items. At the same time, she explained that she saw other items on Etsy that were likely copyright infringement. However, she told me that her client appreciates fan art. Not all intellectual property owners share this theory.

Myth 2: Fair Use always protects fan art.

As discussed above, the Fair Use Doctrine is complex and can be unpredictable. Different intellectual property owners may have different ideas for what constitutes infringement, and what they deem as “fair” and good for their brand. And then, if a case goes to court, the fair use defense is likely unpredictable. Just because an artist is a fan and creates art, does not necessarily mean a court would find that this fan art is protected by fair use.

Myth 3: Fair Use does not protect those who sell the fan art or otherwise make money by using copyrighted work.

The Fair Use Doctrine takes into consideration whether the work was created for a “nonprofit” purpose, and some courts place the most weight on the fourth factor — “the effect of the use upon the potential market for or value of the copyrighted work.” However, the mere act of selling an item does not necessarily mean that a court would find against fair use.

Myth 4: Fair Use protects artists who only use 10% of the original work.

There are no rules outlining a specific percentage to change in order for a work to be deemed protected by the Fair Use Doctrine.

Myth 5: Fair Use is easy to determine.

The Fair Use Doctrine is complicated, unpredictable and even courts disagree on a finding of fair use. In fact, in at least one case the Court of Appeals found infringement, and the Supreme Court reversed, finding fair use. Many lawyers, judges, courts and artists may disagree as to whether a use constitutes copyright infringement or should be deemed fair use.

In conclusion, it’s up to each artist to analyze risks of making and selling items that borrow from others' brands, characters, or imagery, and make the best decisions possible for their businesses.

Resources:

This information is for educational and informational purposes only. The content should not be construed as legal advice. The author and Etsy, Inc. disclaim all responsibility for any and all losses, damages, or causes of action that may arise or be connected with the use of these materials. Please consult a licensed attorney in your area with specific legal questions or concerns.

Author

Sarah Feingold

Sarah Feingold is Etsy's in-house attorney. She is also a jeweler with an extreme sweet tooth.

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