With the development of digital technology, the avenues for exhibiting art have expanded exponentially, and with it, questions about intellectual property law. New technological developments, like the internet and digital drawing pads, have provided artists with new ways to create art and share it. While these online platforms have increased the public’s access to art, this ease of access has also developed new issues in IP law.
A Brief History: Copyright Laws and Copycats
In Canada, the Copyright Act protects all original creative works, regardless of their commercial value. The purpose of this act is, among other concerns, to safeguard an artist’s exclusive right to ownership over their work, which is essential for promoting creativity and ensuring that artists can safely and openly share their work without losing social or economic recognition.
Historically, imitation has been common in the art community, even when accessing and replicating specific pieces of artwork was much more difficult. However, technology has drastically changed the circumstances. Now, it is easier than ever to find an image of an original art piece online and use digital programs to replicate it. Although some people use these methods for economic gain, fraud, or deception, it is important to understand that not all replication is done with malicious intent. A perfect example of this is fanart.
What is Fanart?
“Fanart” is artwork created by members of a fandom, typically featuring a replicated or altered version of the original artist’s creations. It can include various means of re-imaging the original creation including drawing a character in your own art style or taking creative liberty with the story line. Nearly all fandom communities have and support fanart. Some of the most notable communities include Harry Potter fans, anime fans, and Disney fans. Nowadays, if you search for any recognizable content creator or title in an app like Instagram, you will immediately see results from both the original artist and fan adaptations. While some artists may feel proud about inspiring fanart, others may not enjoy the replication, especially if they are not acknowledged as the original artist.
Is Fanart an Infringement of Copyright?
The short answer is yes.
Copyright laws ensure that original content creators have the sole distributive right to their works, including derivative pieces based on their original creations. According to section 27 of the Copyright Act, copyright infringement includes selling, distributing, or publicly exhibiting a copy of a work without permission. Therefore, all fan art is an infringement of the original content creator’s copyrights.
The scope of social media makes it challenging for smaller artists to track down imitators, and therefore, legal remedies can be difficult to pursue. Additionally, fanart creators may be able to argue a defence of fair dealing.
The law states that “fair dealing for the purposes of… private study, education, parody or satire does not infringe copyright.” Many fan artists are amateurs, and therefore, can argue for study, education, or parody; however, there are limits to this argument. The purpose of fair dealing is to allow copyright protected works to be used in specific contexts for the benefit of society. Therefore, the court engages in a case-by-case assessment of whether particular pieces of fanart qualify under “fair dealing.” Factors such as “the amount you are copying, whether you are distributing the copy to others, and whether your copying might have a detrimental effect on potential sales of the original work” are evaluated. It is important to note that the Supreme Court of Canada has recently approached copyright law with the goal of finding a “balance between the rights of users and of copyright owners.”
Artists in the Digitized World
Because of the difficulty of regulating online content and platforms, artists are now encouraged to proactively protect their work. This includes using watermarks, a copyright notice on their website and social media platforms, and tools like “Copyscape”, which search for unsolicited use of their content online. Fanart creators can also take steps to avoid legal trouble, such as checking their fandom’s community guidelines, making it clear that their work is unofficial, not using fanart for commercial purposes, and asking the original artist for permission.
Despite both creators’ and fans’ efforts, many online artists have moved their content to paid-subscription platforms like Patreon to better safeguard their IP rights and the commercial value of their artwork. These legal and economic consequences are detrimental to the original artist, and perhaps reaffirm that imitation is not always the sincerest form of flattery.
Written by Adele Zhang, a first-year JD student at Osgoode Hall Law School. Adele is interested in the intersections of IP, sports law, business law, and employment law.