Wednesday, March 21, 2018

Authorizing Fan Art

Note: When I’m discussing fan art, I am using the term broadly to include any fan-made work, including art, film, books, or music.

I’ve written about fan art issues a few times, including an initial piece on the legality of fan art and one about case law/status. It’s a topic I revisit for a few reasons. First, while it is seemingly a black or white—legal or not—issue, it exists in a gray area of the law. Second, with the continued rise of fan cultures and the internet, it’s a topic that won’t be going away anytime soon. And, finally, it places owners of famous intellectual property in a difficult position of trying to protect their rights while also not alienating fans. Today’s post is going to explore some programs implemented by intellectual property owners attempting to address that last topic.
            Fan art can be a blessing and a curse for intellectual property (IP) owners. For instance, it’s exciting and healthy for your brand if fans generate art featuring it. It shows the brand is popular, and your fans are engaged. However, it can be a problem when the fan art negatively impacts the original IP, either through competing directly with the original IP or through tarnishing the brand’s image. How can IP owners navigate the area between shutting down all fan art to protect themselves and encouraging fan engagement? One of the options IP owners are exploring is allowing fans to create fan art, but giving them conditions to follow.
            AsI wrote about previously, CBS/Paramount, the owners of Star Trek, ran into a problem when a group raised over $1,000,000 on Kickstarter to fund production of a “fan film.” CBS/Paramount sued to stop production of this film, even though they had never stopped production of a fan film or TV series previously. There was an outcry from the fandom, and even the director of the next major Star Trek film, Justin Lin, expressed his displeasure with the tactic. This is what prompted CBS/Paramount to issue official guidelines for fan films, which I wrote about here. If fans follow the rules, then they won’t receive a nasty letter or lawsuit from CBS/Paramount.
            More recently, Marvel announced a service allowing fans to create their own comics. However, it was mocked when it was announced because of the terms imposed. Among the lengthy conditions, comics the users create aren’t supposed to include:

· Content that could frighten or upset young children or the parents of young children
· Sexually explicit images (pornography, etc.)
· Suggestive or revealing images (bare midriffs, legs, etc.)
· Sensationalism (killer bees, gossip, aliens, scandal, etc.)
· Potentially slanderous or libelous content
· Obscenity, bad or offensive language, proxies for bad or offensive language (X@#%!), body parts, or noises related to bodily functions
· Politics (lobbyists, PAC sites, political campaigns, alternative lifestyle advocacies)
· Death
· Discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age
· Illegal activities or any materials that infringe or assist others to infringe upon any copyright, trademark, or any other intellectual property rights
· Misleading language
· Images or content that is in any way unlawful, harmful, threatening, defamatory, obscene, or harassing
· Unauthorized or unapproved use of Marvel creative assets (such as talent, logos, characters, movie logos, theme park imagery, color scheme, font[s])
· A copy or parody of current or past Marvel advertising creative (from any media form)
· Other controversial topics (social issues, etc.)
· Implied affiliation or favored status with Marvel
· Double entendres
· Amusement parks (other than Disney amusement parks)
· Movie studios (other than studios affiliated with Marvel)
· Animated movies (other than Marvel or Disney movies)
· Guns (firearms, bullets, etc.)

Obviously, the above list, which only includes some of the restrictions in the terms of use, puts some serious limitations on what is authorized, and it’s clear Marvel wants to limit material that is embarrassing, confusing, or risky to the company. Personally, I am impressed by this list. It’s hard to come up with every possible scenario that could embarrass Marvel/Disney, but whoever came up with this list has come close.
            Amazon also offers a program for aspiring fan writers. It’s called Amazon Worlds, and it allows fans to write new stories set in fictional universes, such as  Gossip Girl, The Vampire Diaries, G.I. Joe, and many of the Valiant Entertainment comic book titles. Amazon worked out a deal with the original IP owners to publish this fan fiction, and the IP owner and the fan split the royalties, with the fan receiving between 20-35% of net revenue from e-books. I doubt anyone will get rich off of this, but it is one of the only places I know where a fan can publish a work set in an established, fictional universe and make money off of it without specter of a lawsuit, or at least a cease-and-desist letter, lurking. Again, the IP owners place restrictions on what can be done. For example, here are the guidelines for Valiant’s X-O Manowar:

1.       Pornography: We don't accept pornography or offensive depictions of graphic sexual acts.
2.       Offensive Content: We don't accept offensive content, including but not limited to racial slurs, excessively graphic or violent material, or excessive use of foul language.
3.       Illegal and Infringing Content: We take violations of laws and proprietary rights very seriously. It is the authors' responsibility to ensure that their content doesn't violate laws or copyright, trademark, privacy, publicity, or other rights.
4.       Poor Customer Experience: We don't accept books that provide a poor customer experience. Examples include poorly formatted books and books with misleading titles, cover art, or product descriptions. We reserve the right to determine whether content provides a poor customer experience.
5.       Excessive Use of Brands: We don't accept the excessive use of brand names or the inclusion of brand names for paid advertising or promotion.
6.       Crossover: No crossovers from other Worlds are permitted, meaning your work may not include elements of any copyright-protected book, movie, or other property outside of the elements of this World.
7.       The entries must present the protagonist(s), supporting character(s), and antagonist(s) in-character.
8.       No use of profane language or offensive racial, cultural, or sexual slurs.
9.       No extreme or persistent violence, including but not limited to descriptions of blood, gore, and/or bodily fluids.
10.    No erotica, including frequent, prominent, or graphic descriptions of sexual acts.
11.    No references to acquiring, using, or being under the influence of illegal drugs.
12.    No wanton disregard for scientific and historical accuracy.
13.    Aric does not act primitive or of lesser intellect despite being new to the social customs and technological advancements of the 21st Century. Aric is an intelligent, thinking man who can understand modern ideas in the context of his era of origin.
14.    Despite being a man from another time, Aric does not torture his enemies, nor does he engage in violence against children.

Many of the restrictions set forth here are similar to the others we’ve seen. IP owners are primarily worried about a fan creating a work that tarnishes or devalues their brand or exposes them to liability, and some also have concerns about fans profiting from their fan-made works.
            Fan art can be fun to create, and it can help aspiring writers and artists develop and refine their skills. If you want to create legal, authorized fan art, check to see if the brand you love has issued guidelines allowing fans to create content. You might be surprised, and if they’re generous, you might be able to make a little money. If the brand you want to use hasn’t issued guidelines, proceed carefully. Following the guidelines set forth by other brands might keep you out of trouble, but there is still risk whenever you create and distribute a work featuring intellectual property you don’t own.   

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