Question/Hypothetical: You and your small kids are big fans of the show “Paw Patrol.” For your daughter’s 7th birthday, you decide to design a whole Paw Patrol Party Package (say that 3 times fast). You draw your perfect renditions of the pups and proceed to get them printed on napkins, plates, shirts, posters and favor bags. The whole shebang turns out so adorable that you decide to sell all of the items in your Etsy shop. After many months of successful sales, you get a notification from Etsy that Nickelodeon has filed a copyright infringement notice against your shop and all of your Paw Patrol items have been removed. You are so confused because you thought fan art was legal; I mean, you drew it yourself! What’s the deal?
Answer: First things first. This Paw Patrol Party Package is indeed “Fan Art,” which is sort of a nebulous term that refers generally to the re-creation of a character or other aspect of a creative work by a fan of said work. Nickelodeon would be well within its rights to regard the Party Package as infringing since it is, on its face, a bare reproduction of its copyrighted characters.
People often think Fan Art is within some sort of copyright gray area but it really...isn't. It can be pretty straight forward infringement. This is because Fan Art, by definition, tends to be made to look as close to the original as possible and reproducing someone's copyrighted work without permission in this way can easily run afoul of the Copyright Act. Whether you are re-creating Ryder and the Pups, Super Mario, Yoda or Mickey Mouse, being a fan of something is irrelevant when analyzing whether or not your actions constitute infringement. “Fan Art” is not a legal term and creating something that is otherwise infringing is not made less so just because you are a fan of the character or items.
It can feel like a gray area and a little counterintuitive - I mean you often have to utilize talent and hard work to create faithful renditions of your favorite characters or works. So, that investment may make you feel like you have some ownership over the final result. This is not a novel feeling. In fact it is very similar to The "sweat of the brow" doctrine. A long time ago, this was a theory in copyright law that one should be given the right to protect their work when they have put in time and effort to create it. But, this theory was rejected by the U.S. Supreme Court in 1991. [1] Creativity and originality is what copyright means to protect - not solely the effort put in.
Fan Art can also feel like a gray area because there is so much of it online that it seems like it is o.k. In reality, there may be some copyright owners who do not mind fan art. They may even think that this sort of fan engagement is positive for their brand. But, copyright is not a "use it or lose it" property right like trademark. Meaning, a copyright remains in place until it expires and, at any moment, a copyright owner can decide to enforce their rights even if they ignored violations in the past.
So, long story short - Fan Art may be tolerated or even implicitly encouraged by a copyright owner but not all copyright owners are so tolerant. Additionally, because fan art is usually an infringing reproduction, it is at risk of being flagged as such and subject to removal online.
[1] Feist Publications v. Rural Telephone Service, 499 U.S. 340 (1991).
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