Commons:Fan art/gu

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An allowable fan art image of Harry Potter that does not appear to derive in any way from a specific realization of the character in the book cover illustrations, movies, or computer games. See Some examples from the fictional Harry Potter universe, below.

Fan art is a term describing unofficial artistic representations of elements or characters in an original work of fiction, usually created by amateur artists for their own amusement. Fan art is created by someone other than the owner of the intellectual property rights in the original work or a permitted licensee. Typically, the work of fiction is some popular book, comic book/graphic novel, movie, TV show or computer game.

Fan art is a legal minefield, and this page can do no more than provide some general guidance. Each fan art file must be considered individually on its merits.

Introduction

The rights owner (usually a company such as a movie company that has purchased the rights to the work of fiction from the author) generally has multiple intellectual property rights available to protect its commercial interests. These will normally include artistic copyrights in any movie/TV show/computer game/comic book drawings/photographs and so on, along with literary copyrights arising from any corresponding textual work such as a novel. Also, the rights owner often has trademark protection and moral rights, along with other rights to prevent unauthorised copying in some countries. In Common Law countries, the law of passing off is available; in Civil Law countries, there are rules restraining unfair competition.

Taken together, these rights are strong in most countries that respect intellectual property, with the result that it would be extremely unwise for a commercial competitor to attempt to copy elements or characters from the original work of fiction, in any form.

Fan art on Commons

Does Commons want fan art? Isn't it original research?

Commons is not Wikipedia, and files uploaded here do not need to comply with the no original research requirements imposed by many of the WMF Wikipedia sites. It is true that original art may not be usable on some Wikipedia sites, but the aims of Commons are broader than merely hosting content for such sites.

However, our project scope requires that files uploaded to Commons must be realistically useful for an educational purpose. The expression “educational” is to be understood according to its broad meaning of “providing knowledge; instructional or informative”. Image collections of personal interest only, self-created artwork without such educational purpose, and images of low quality that do not provide anything educationally different from the images already held may be deleted even if they have been made available under a free licence. For example, an original artwork that places Uncle Sam inside the Trumbull's Declaration of Independence would not violate anyone's copyright and may be licenced by its author as desired, but it could hardly be said to have any realistic educational purpose. The image File:P Harry Potter.png, on the other hand, is educationally useful, as may be seen from the fact that it is used as an icon on multiple wikis.

Commons is not a free web host, and we cannot accept collections of original art whose purpose is merely to showcase the talents of the artist (unless the artist is a notable figure in which case we will host them).

General rule

So far as Commons is concerned, we will host fan art provided that:

• It is realistically useful for an educational purpose, as required by our project scope (note that "self-created artwork without obvious educational use" is specifically excluded);
• It does not breach any copyright owned by the rights owner; and
• It has been released by the fan art creator under a permitted free licence.

Note that the fan art creator must release the fan art under a free licence that allows commercial use. Provided that the fan art does not infringe any copyrights of the rights owner, it does not matter that the rights owner may have additional rights in some countries to restrain re-use such as trademark protection, or the law of passing off or unfair competition. Such non-copyright restrictions that affect only the re-users of our content can normally be ignored when considering whether a file may be hosted here.

Can fan art be fair use?

Sometimes, yes, but that is of no assistance here since Commons never accepts fair use uploads.

Practical considerations

As explained in more detail below, certain types of fan art are in principle allowed provided they do not copy any creative element of the original work of fiction. However, in practice it is often very difficult to tell whether the fan art has been made by copying, or whether it is an independent work of art which merely shares with the original work of fiction some basic non-copyrightable aspects or features. This is where common sense and judgement have to be applied.

Without wishing to denigrate the skill of any individual artist, experience teaches that many creators of fan art find it easier to copy than to create wholly original works of their own. Images that at first sight appear original are often found on investigation to have been copied from, say, a copyrighted representation of a character in a movie or a computer game. For that reason, all fan art uploaded to Commons should be evaluated critically. It may be relevant to consider the apparent skill of the artist and whether any other uploads can be shown to have been copied from a known source. Where there is real doubt the precautionary principle should be applied and the image deleted.

Use of {{Fan art}}

Where a fan art file is eligible to be hosted on Commons, please consider tagging it with the {{Fan art}} template. This warns re-users of the file that the rights owner may in some countries have additional non-copyright protections which may restrict the file’s re-use. The template is a warning and not a copyright tag, and use of the tag has no bearing on whether or not the file is allowed to be hosted here.

Copyright in fan art

Although rights owners in practice often have plenty of rights to prevent almost any reuse for commercial purposes of any character or element within the universe of the original work of fiction, when we consider copyright alone their protections are rather less extensive.

Re-drawing does not avoid copyright infringement

It is important to understand that you do not avoid copyright infringement merely by re-drawing an existing copyright work, even if you introduce artistic additions or embellishments of your own. For example, if you redraw the map illustrations depicted in the novel The Lord of the Rings you infringe their copyright just as certainly as if you had photocopied them. You will also infringe the copyright in a movie if you copy creative elements or characters from the story in a manner similar to the way in which those elements or characters are presented on screen.

Physical ownership does not give you permission

The fact that you may physically own a DVD, computer game or comic book does not provide you with any authorisation to create your own fan art copied from what is shown. Ownership of the physical article may rest with you, but ownership of the copyright does not. Whether or not such articles are explicitly labelled as copyright-protected is irrelevant.

Ideas aren't copyrighted

There is no copyright in an idea, in this case the combination of a bullwhip and hat. The fact that most viewers will recognise the allusion to the fictional character Indiana Jones does not matter.

The title above is a gross oversimplification, but generally there is no copyright in an abstract idea or concept as such. Copyright is not a monopoly right that protects each and every type of creative content, even at the highest conceptual level; it simply restricts copying of the specific realization that the author has used, in words, images or sound. US courts distinguish between an uncopyrightable "idea" and a copyrightable "expression".

Thus, in order to establish a copyright violation the copyright owner has to be able to point to some original and creative specific realization (or expression) that has been copied, either directly or indirectly, exactly or inexactly, and either with or without additional artistic embellishments. The specific realization is typically some graphic work such as an illustration in a book, or a visual representation in a movie or computer game.

The difficulty, of course, is to decide what level of generalization is considered to be a non-copyrightable abstract idea, and what a copyrightable specific realization. The courts have much trouble with this, and there is no “bright line” rule that provides an easy answer.

Where the specific realization is an illustration or a depiction of a creative graphic element within a movie, comic book, computer game or the like, copyright will typically be infringed if the fan art drawing has copied that original creative element.

Literary copyright

The legal situation can get much more complicated where the fan art drawing is a representation based solely on the descriptive text of a literary work such as a novel. Although the novel's author will have literary copyright in the actual words used, the US courts, in particular, have been rather reluctant to uphold broad copyright protection for characters within the novel. Although literary characters are clearly creative, they are often seen by the courts as being no more than abstract ideas that are too generic to attract independent copyright protection.

US case law is not consistent, but it is clear that "the less developed the characters the less they can be copyrighted; that is the penalty an author must bear for making them too indistinct". In order to warrant copyright protection, a literary character must be both "specifically described" and "distinctively delineated" (or "fully developed"). Other cases have granted protection only to a character within a work who constitutes the “story being told”

The courts have refused protection for characters that are of no more than a particular "character type". Similarly, the courts will not grant protection where the material copied is standard or common to the particular subject or topic. Thus, a stereotypical fictional character, unless one copied the exact word portrait of that character, is not likely to be copyright protected. For example, it is unlikely that a court would uphold infringement of the text of a mystery novel based on the fact that both the original character and the alleged copy smoked a cigar and spoke with a New York accent. It is likely that the court would hold both of these characteristics to be standard or common to the mystery genre.

The courts in England have been even more reluctant to accept character copyrights based on literary works, and the general view is that English law does not recognise the concept of copyright in literary fictional characters at all.

In practice literary copyright is not in any event typically of great importance, since most fan art is based on characters that are known in graphic form from spin-offs such as movies, comic books or computer games. Where a novel has become popular enough to generate commercial spin-offs, it is the graphic representations that are more likely to have been copied than the original literary description.

There is no copyright in a name

There can normally be no copyright in a mere name, e.g. "Harry Potter", even if that name is an author's own creation: names are in themselves usually too trivial for copyright protection. Of course, the phrase "Harry Potter" is protected as a registered trademark in many countries, which will prevent most types of commercial re-use, but trademark protection is not a bar to an image being hosted an Commons, as its retention on a WMF server will in itself typically not infringe any trademark rights.

There is no copyright in a mere allusion

An original fan art image that does no more than refer to the original work is not a copyright infringement, provided that no original creative element has been taken. The fact that the title of an image makes it clear who or what it is intended to show is not, in itself, problematic.

There is no copyright in a commonplace pre-existing element

An allowable fan art image that consists of a commonplace element (two books) plus a non-copyrightable mere allusion to Harry Potter.

Where the work of fiction makes use of commonplace pre-existing elements, taking one of those elements and imaginatively recreating it as an original work of fan art does not infringe any copyright, even if the recreation would clearly be understood to relate to the fictional universe created by the original author. The original author can have no copyright in a commonplace pre-existing element, as such, since the element was not itself generated by the author’s creativity.

You can draw a picture of an Aston Martin without it being subject to the copyright of the James Bond movies, but the Batmobile from Batman Returns is an original creation and fan art of it would infringe the movie's original copyright.

There is no copyright in an actor's likeness

Movie-derived fan art often includes drawings of an actor in character. There is no copyright in an individual’s likeness, e.g. in their natural facial features, and if the fan art drawing is a wholly new creative representation showing the actor’s natural likeness plus some non-creative allusion to the original work, it can be accepted. However, it is a copyright violation to copy creative elements from the movie, and many fan art drawings will fail on that basis. A drawing that closely replicates what is shown in the movie will infringe the movie copyright in the same way as would a photograph directly taken from the screen.

Out of copyright and freely licensed works

Fan art which depicts material that is in the public domain or which has been released under a permissible free license by the original rights owner is allowed. Note, however, that the original work the character appears in must be public domain or freely licensed in order for derivative representations of the character to be free.

• See also Commons:Character

Freedom of panorama

Photographs which fall under freedom of panorama of the country in which they are taken are allowed. If a sculpture of the Batmobile from Batman Returns were permanently installed in a public park in, say, the UK, then a photograph of it would not infringe any copyright, and neither would a drawing copied directly from that photograph. However, that does not mean that all representations of the Batmobile thereby become free; only those that are based solely on the photograph to which Freedom of Panorama applies.

The rules differ from country to country. Note that the freedom to photograph works of creative art, such as sculptures, which are permanently located in a public place does not apply in the US.

Some examples from the fictional Harry Potter universe

This is how various depictions of the fictional character Harry Potter would be treated:

• A drawing of a boy with black hair and glasses. Allowed as a pre-existing commonplace element, provided it is a drawing of a generic boy, and does not copy the specific realizations of the book cover illustrations, the movies, or the computer games.

• A drawing of a boy with black hair and glasses labelled “Harry Potter”. Allowed under the same conditions as above. The mere addition of the words “Harry Potter” do not turn a generic representation into an infringing copy. There is no copyright in a mere allusion.

• A drawing of a boy in a wizard hat and robes, whether or not labelled “Harry Potter”. Allowed as a pre-existing commonplace element, provided it is a drawing of a generic boy wizard, and does not copy the specific realizations of the book cover illustrations, the movies, or the computer games.

• A drawing of a boy with black hair and glasses, with a zig-zag scar on his forehead, whether or not labelled “Harry Potter”. Here, the combination of features taken may be unique to the character in JK Rowling's novels, but such a combination is in itself likely to be considered an uncopyrightable idea in the US courts. Also, as stated above, the English courts do not recognise the concept of copyright in a literary character at all. This should therefore be allowed, provided it does not copy the specific realizations of the book cover illustrations, the movies, or the computer games. However, drawings with this much JK Rowling detail or more should be reviewed carefully to ensure that they are not actually copied from a screen representation. If there is doubt the precautionary principle should be applied.

• A drawing of Daniel Radcliffe, whether or not labelled “Harry Potter”. Allowed only if a wholly new and original drawing of the actor which is not copied in any way from an existing copyright work such as a photograph or the specific representation in the movies. There is no copyright in an actor’s likeness.

• A drawing of Daniel Radcliffe in a wizard hat and robes, whether or not labelled “Harry Potter”. This is more difficult. In principle this is allowable provided it is wholly new and original and does not copy in any way any specific realization of the movies. However, in practice such a drawing is more likely to have been copied from the screen representation than to be wholly original. If there is doubt the precautionary principle should be applied.

• A photo of a boy with black hair and glasses, with a zig-zag scar on his forehead, in a wizard hat and robes, parts of which came in a Halloween licensed costume labeled “Harry Potter”. Costumes are a complex issue. See Copyright rules: Costumes and cosplay.

Non-copyright restrictions and reuse

The manner in which an image is reused is of great importance in practice, even where there may be no copyright problem. If you create a new and original drawing of a black-haired boy with glasses, and label it "Harry Potter" you should be OK so far as copyright is concerned, and such a generic drawing can if suitably educational be hosted here. Non-copyright restrictions on reuse are not normally a bar to a file being hosted here, unless they are restrictions which would make it unlawful for the WMF to act as the host under US law.

But re-use of such an image may be much more difficult. If for example you use the fan art drawing as the basis for a commercial computer game of your own, or use it as a cover illustration for your book, you will be in deep trouble. In the UK, US and other Common-law countries, you may be committing the tort of passing off by putting into the marketplace articles which might well be bought by unsuspecting purchasers who incorrectly think you are associated with J.K. Rowling in some way, e.g. that you have been licensed by her or her company. In France and other Civil-law countries you may fall foul of a variety of unfair competition laws.

You might also have to worry about libel, especially if your drawing could be considered derogatory and damaging to J.K. Rowling's reputation.

As always, as a downloader and re-user of our content, it is your responsibility to satisfy yourself that any use you make of one of our files is acceptable under your own national law; see Commons:Reusing content outside Wikimedia.