Do Dr. Seuss and Fair Use (Comic)Mix? - Part 2

            I mentioned the Dr. Seuss Enterprises, L.P. v ComicMix, LLC case in two previous blog posts (here and here). Recently, the court District Court for the Southern District of California issued a summary judgment in the case. In its  ruling, the court found that the ComicMix book, Oh, the Places You’ll Boldly Go!, was entitled to a fair use finding and dismissed the case.

            By way of background, ComicMix launched a Kickstarter campaign in 2016 to fund a mash-up book in the style of Dr. Seuss’ Oh, the Places You’ll Go, but instead using characters from Star Trek: The Original Series. The Kickstarter campaign raised almost $30,000, and ComicMix had discussions with publishers and retailers about distributing the book. ComicMix did not seek to license from either Seuss Enterprises or CBS/Paramount, the owners of Star Trek, because they believed their work to be a parody and hence constituted fair use under copyright law. After some back-and-forth correspondence between Seuss Enterprises and ComicMix, Seuss Enterprises filed a copyright and trademark infringement lawsuit in November 2016.

            During the next two years, the case wound its way through the litigation process. Early on, the court found the work to not be a parody, but did believe it was transformative. However, it declined to rule on the issue. Meanwhile, ComicMix was able to get the trademark claims related to the title dismissed.

            In the most recent summary judgment ruling that addressed the remaining claims, the court again revisited ComicMix’s fair use defense. After weighing all of the fair use factors,[1] the court found that the balance was close, but slightly favored ComicMix. Working in ComicMix’s favor was that even though the work was commercial, the court found it to be transformative. The court also found ComicMix’s book did not take more material than was necessary for the creation of its book, and Seuss Enterprises could not prove there would be market harm to its works, or its licensing programs, if ComicMix’s book were to be released. The court also ruled that Dr. Seuss’ illustration style was not a protectable trademark right, and that the typeface used in the title of the work is also not a protectable trademark.

            A few notes of caution for readers. First, this case is not yet over. Seuss Enterprises could appeal the decision to an appellate court, and the outcome could be different. Personally, I think the court has it right in this scenario, but one can never be certain. Second, this decision only applies to the Dr. Seuss elements incorporated into ComicMix’s book. If CBS/Paramount were to sue over the Star Trek elements used in the book, the analysis of the fair use factors could turn out differently. Finally, as I’ve said before, fair use is a defense to copyright infringement, and it is performed on a case-by-case basis. If someone thinks you are infringing on their work, they will probably sue you, and a court will decide if it’s a fair use. If that happens, it will take a significant amount of time and money to settle the issue, as evidenced by ComicMix’s appeal for help funding this litigation that I talked about last year.

            Overall, it is a good win for ComicMix, and it helps shed some light on how courts view mash-up works in relationship to fair use. However, this does not mean that all mash-up works are automatically entitled to fair use, and anyone creating them should proceed with caution.

The court opinion can be found here. 

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[1]“(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

  (2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.” 17 U.S.C. Sec. 107.

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.   

Fan Art & Fair Use - An Update

I’m frequently asked about fan-created works. I’ve written about my thoughts on the matter previously here, and generally, my thoughts on the matter remain the same: if you don’t own the rights to the characters you are drawing, you are probably in violation of someone’s intellectual property rights. Recently, rulings have been made in two cases involving works akin to fan art that will perhaps provide some guidance.

            First, we have the Axanar case. I previously wrote about the Axanar case when Paramount and CBS released their fan art guidelines. Briefly, Axanar Productions was attempting to create a feature-length film based around a character who appeared in an episode of the original Star Trek series, Garth of Izard. Axanar raised over $1 million on Kickstarter to fund its production and was planning on hiring people who had worked on Star Trek productions in the past. In 2015, Paramount/CBS sued for copyright infringement. In January, the judge hearing the case ruled Axanar was not entitled to a fair use defense in its work, and the case was settled shortly after. For more information, see the Hollywood Reporter coverage.

            Our second case also involves Star Trek, but in this case, a different rights-holder is suing. ComicMix, LLC started a Kickstarter campaign to fund a mashup of Dr. Seuss’ Oh, the Places You’ll Go! and Star Trek called Oh, the Places You’ll Boldly Go![1] It did not have permission from Paramount/CBS or from Seuss Enterprises.[2] Seuss Enterprises sued ComicMix for copyright and trademark infringement.[3] In addressing ComicMix’s Motion to Dismiss, the court weighed the four factors of fair use and found it evenly weighted between the two parties.[4] As such, it could not dismiss the case. Additionally, the court found the ComicMix work was not a parody.[5] The work used Go!’s style and format to tell stories from the Star Trek canon.[6] However, the court did find the work transformative because it creates a completely new work from the two source worlds.[7] The court also dismissed the trademark claims.[8]

            Initially, these two cases might seem at odds with each other, but they can easily be reconciled. They also shed light on questions surrounding fan art. The Axanar case involved a work heavily reliant on the Star Trek universe to tell its story. Since it sought to develop a character and story line first mentioned in the original Star Trek series, it is easy to clarify it as a derivative work. It primarily used Paramount/CBS’ intellectual property to create a new work. However, the ComicMix case involved a mash-up. As the court points out, it blends two different intellectual properties together to create a new work. [9] The court recognized mash-up works as an emerging culture and did not want to categorically eliminate this form of art.[10] Whether or not a mash-up work qualifies as a fair use will be a case-by-case determination, and in the ComicMix case, it is still to be determined whether Oh, the Places You’ll Boldly Go! will qualify as a fair use.[11]

            As I mentioned in the beginning, if you don’t own the rights to the intellectual property you’re using in your fan-created work, you could be infringing on someone’s rights. Even though you might believe your work qualifies as fair use, it’s likely you will have to go to court to assert your fair use defense. As both of these cases illustrate, courts determine fair use on a case-by-case basis, and you can easily find yourself on the wrong side of a copyright infringement claim.  Especially since there is not a clear line demarcating the point of infringement. If you are creating a piece of work using someone else’s intellectual property, tread carefully.  

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[1] Dr. Seuss Enters., L.P. v. ComicMix, LLC, No. 16cv2779-JLS, at page 2 (S.D. Cal. 2017).

[2] See Cullins, Ashley, Dr. Seuess Enterprises Takes Another Shot at Vaporizing ‘Star Trek’ Parody Book, July 3, 2017, HollywoodReporter.com,  http://www.hollywoodreporter.com/thr-esq/dr-seuss-enterprises-takes-shot-at-vaporizing-star-trek-parody-book-1016754 (last visited July 28, 2017).

[3]Id. at page 3.

[4] Id. at page 13.

[5] Id. at page 8.

[6] Id.

[7] Id.

[8] Id. at page 20.

[9] Id. at pages 8, 12.

[10] Id. at 12.

[11] See Cullins, Ashley, Dr. Seuess Enterprises Takes Another Shot at Vaporizing ‘Star Trek’ Parody Book, July 3, 2017, HollywoodReporter.com,  http://www.hollywoodreporter.com/thr-esq/dr-seuss-enterprises-takes-shot-at-vaporizing-star-trek-parody-book-1016754 (last visited July 28, 2017).

The Star Trek Fan Film 10 Commandments

I'm going to take another break this week from my Comics Startup 101 series to tackle the new Star Trek Fan Film Guidelines released by CBS and Paramount. The Comics Startup 101 series will return next week addressing protecting your intellectual property.

The Impact of the Star Trek Fan Film 10 Commandments

I recently blogged about the legality of fan art, and you can find that post here. One of the main takeaways from my last post on fan art is that I believe it to be in violation of an IP owner’s rights. However, unless the fan art is being sold, most IP owners would not feel the need to sue or otherwise take actions against a fan artist. A few days after my last post on the fan art question, CBS and Paramount, the studios controlling the rights to Star Trek, announced ten “Guidelines for Avoiding Objections” fan film creators can follow in order to avoid the legal wrath of the studios. These Fan Film 10 Commandments, as I like to call them, are a great tool for determining how far is too far when using IP you don’t own for fan art, fiction, films, etc.

The guidelines were released as a reaction to a lawsuit filed by the studios against producers attempting to create a high-quality, feature-length Star Trek film set before the original Star Trek series titled Axanar. You can find more background information on the lawsuit here, but one of the key facts to keep in mind is that this unlicensed fan film had raised more than $1 Million through crowdfunding. Even though CBS and Paramount have allowed fan films and fan series to be produced in the past without legal challenge, they apparently felt the planned Axanar film went too far. After a bit of a backlash from the Star Trek fan community, including a harsh statement from the director of Paramount’s upcoming Star Trek Beyond film, the studios released a set of guidelines for fans to follow in order to prevent the studios from objecting or taking legal action against the fan-created films.

Here are the “Guidelines for Avoiding Objections”:

1)      The fan production must be less than 15 minutes for a single self-contained story, or no more than 2 segments, episodes or parts, not to exceed 30 minutes total, with no additional seasons, episodes, parts, sequels or remakes.  

2)      The title of the fan production or any parts cannot include the name “Star Trek.” However, the title must contain a subtitle with the phrase: “A STAR TREK FAN PRODUCTION” in plain typeface. The fan production cannot use the term “official” in either its title or subtitle or in any marketing, promotions or social media for the fan production.

3)      The content in the fan production must be original, not reproductions, recreations or clips from any Star Trek production. If non-Star Trek third party content is used, all necessary permissions for any third party content should be obtained in writing.

4)      If the fan production uses commercially-available Star Trek uniforms, accessories, toys and props, these items must be official merchandise and not bootleg items or imitations of such commercially available products.

5)      The fan production must be a real “fan” production, i.e., creators, actors and all other participants must be amateurs, cannot be compensated for their services, and cannot be currently or previously employed on any Star Trek series, films, production of DVDs or with any of CBS or Paramount Pictures’ licensees.

6)      The fan production must be non-commercial:

·         CBS and Paramount Pictures do not object to limited fundraising for the creation of a fan production, whether 1 or 2 segments and consistent with these guidelines, so long as the total amount does not exceed $50,000, including all platform fees, and when the $50,000 goal is reached, all fundraising must cease.

·         The fan production must only be exhibited or distributed on a no-charge basis and/or shared via streaming services without generating revenue.

·         The fan production cannot be distributed in a physical format such as DVD or Blu-ray.

·         The fan production cannot be used to derive advertising revenue including, but not limited to, through for example, the use of pre or post-roll advertising, click-through advertising banners, that is associated with the fan production.

·         No unlicensed Star Trek-related or fan production-related merchandise or services can be offered for sale or given away as premiums, perks or rewards or in connection with the fan production fundraising.

·         The fan production cannot derive revenue by selling or licensing fan-created production sets, props or costumes.

7)      The fan production must be family friendly and suitable for public presentation. Videos must not include profanity, nudity, obscenity, pornography, depictions of drugs, alcohol, tobacco, or any harmful or illegal activity, or any material that is offensive, fraudulent, defamatory, libelous, disparaging, sexually explicit, threatening, hateful, or any other inappropriate content. The content of the fan production cannot violate any individual’s right of privacy.

8)      The fan production must display the following disclaimer in the on-screen credits of the fan productions and on any marketing material including the fan production website or page hosting the fan production:
“Star Trek and all related marks, logos and characters are solely owned by CBS Studios Inc. This fan production is not endorsed by, sponsored by, nor affiliated with CBS, Paramount Pictures, or any other Star Trek franchise, and is a non-commercial fan-made film intended for recreational use.  No commercial exhibition or distribution is permitted. No alleged independent rights will be asserted against CBS or Paramount Pictures.”

9)      Creators of fan productions must not seek to register their works, nor any elements of the works, under copyright or trademark law.

10)  Fan productions cannot create or imply any association or endorsement by CBS or Paramount Pictures.

As you can tell from the guidelines, Commandment 6, with its six subsections, seems to be pretty important. Basically, the primary thing that will attract the attention and ire of an IP rights holder is trying to profit from their IP. If they are not followed, the other two Commandments that are likely to trigger a response from rights holders are 7 and 9. If a rights holder believes the fan art is harmful to the reputation of its IP, then it will probably act. A rights holder will also act if it believes someone is trying to obtain rights to its works.

           Commandments 1 through 5 seem to apply only to Star Trek related fan films, but they may prove instructive. If your work is substantial enough to pose a financial threat to the rights holder’s authorized works, then it will probably cause them to act. Additionally, if your work incorporates elements that could create confusion as to whether or not it is authorized (e.g., clips from the show, actors associated with the show, or misrepresents who is creating it), then it may force them to act.

What does the CBS/Paramount Fan Film 10 Commandments mean for fan film, fan fiction, and fan art going forward? While I am certain some fans will find these guidelines to be drastic and overbearing, I actually think they help shed light on how IP rights holders view unauthorized use of their intellectual property and are very instructive in gauging the risk of creating fan art, fan fiction, and fan films. While not every rights holder will be as permissive as CBS and Paramount, these Commandments offer clear guidance as to what will be allowed, and I’m guessing other companies use similar criteria in their decision making.

Is fan art legal?

I'm going to take a quick break this week from my Comics Startup 101 series to answer a question I've seen asked a lot lately.

Is fan art legal?

            Being an intellectual property lawyer who is passionate about comics, one of my pastimes at conventions is to walk artist alley and the exhibition hall floor and guess who is selling prints and merchandise bearing unauthorized images of characters and actors. Whenever I have hosted my Comics Startup 101 panels at conventions and we start talking about intellectual property, the question of whether fan art is legal frequently comes up. The short answer, in my opinion, is no.

However, let’s take a more nuanced look at the reasons why I feel this way. Just to make sure we are all on the same page, when I speak of fan art, I am talking about art generated by a fan of a particular character, story, movie or other medium that is created without authorization from the owner of the property being depicted or from the person being depicted.

             In order to determine whether fan art is legal under intellectual property laws, we have to look at copyright, trademark, and right of publicity laws. Below, I am going to briefly discuss these areas of law as they relate to fan art. Keep in mind that these are very complex areas of law that can fill entire books. What I will be discussing here is just a brief overview.

              Copyright protection is granted by federal law.[1] It protects “original works of authorship fixed in any tangible medium of expression.”[2] Included works of authorship are “(1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works.”[3] The Copyright Act grants exclusive rights to the creator of the work for the life of the creator plus seventy years.[4]  Of particular interest to our discussion are the copyright owner’s exclusive rights to reproduce his work[5] and to create derivative works based on his original work.[6]

            Trademarks are used to identify the source of goods and services.[7] Trademark rights arise from use in commerce, [8]  and they can be protected as long as your trademark is in use.[9] Generally speaking, the first person or company to use a trademark for their goods or services has acquired some rights to prevent others from doing so, even if the trademark is not registered with the U.S. Patent and Trademark Office (“USPTO”).[10] In order to have the broadest protection available, a trademark should be registered with the USPTO. It is important to note, however, that in order for a trademark to be registered with the federal government, it must be used in interstate commerce.[11]

Of particular interest to our discussion, it is possible for an image or logo to be eligible for both trademark and copyright protection.[12] For example, Superman’s S shield arose as a copyrightable image/design, but it has also become an indicator of goods and services for DC Comics and a registered trademark for belt buckles,[13] toys,[14] sporting goods,[15] electronic games,[16] motion pictures,[17] comic magazines,[18] and many other types of goods. So, it is both a trademark and protected by copyright.

            The right of publicity is the final area of law we need to discuss. Even though the right of publicity might not technically be an intellectual property right, it is nonetheless lumped in with these for good reason. It arose out of a person’s right to privacy.[19] However, as the law developed over time, it was accepted that in addition to a right to privacy, a person has a right to control how their likeness is exploited for financial gain.[20] Therefore, the right of publicity allows someone, typically a celebrity, to control how their image or likeness is used for commercial purposes.[21] The right of publicity has been adopted in some form in over half of the states.[22] The right differs from state to state and can apply to “sound alikes; look-alikes; use of the celebrity’s nickname in a fictional work; use of address; statues; and the use of a robot that barely resembles the celebrity but evokes her image.”[23] The right of publicity is a very broad legal doctrine that can pose serious problems for creators trying to evoke the likeness of a living person or celebrity.

            Based on what we’ve discussed above, I believe most fan art to be a violation of intellectual property laws. Typically, we have a fan creating an image of a popular character, such as Iron Man, without the permission of Marvel. Even though the fan’s image may be distinct from other interpretations of Iron Man in the past, a copyright holder has the right to reproduce their works and to create derivative works. It is my belief that a fan creating an unauthorized Iron Man image is in violation of Marvel’s copyright rights. Additionally, because Marvel licenses Iron Man’s image for use on merchandise, the fan could be in violation of Marvel’s trademark rights. If the fan is selling copies of their art, then the question of whether it violates Marvel’s rights is even easier to decide in Marvel’s favor. The right of publicity comes into play if this fan art is of Robert Downey, Jr.’s Iron Man. Not only would the fan be in violation of Marvel’s intellectual property rights, he could also be in violation of RDJ’s right of publicity.

            If you are going to create fan art, then you should tread carefully. In all likelihood, drawing an image of your favorite character and posting it online will not get you sued. It’s generally not in large media companies’ interests to go after fans. If anything, you might get a request to remove the image. However, if you are creating unlicensed fan art and selling it online or at conventions, the risk of legal trouble increases greatly.

            You might be asking, “What about fair use?” It is true that fair use is a limitation on a copyright holder’s exclusive rights. If a work of art qualifies for the fair use exception, then it is found to not infringe another’s copyrighted material. The language of the statute reads:

    

“…[T]he fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include— 

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.”[24]

Fair use is a strong defense against a copyright infringement claim. However, you may have to go to court to assert it, which could be costly, and it is not always consistently applied, which makes it difficult to predict an outcome. Relying on fair use to save you is not the best idea.

            So, is fan art legal? Unless your work qualifies for fair use under the copyright act and doesn’t infringe on any trademark or right of publicity rights, then it might be. However, your typical artist alley renderings of Iron Man, Benedict Cumberbatch’s Sherlock Holmes, or all of the Doctors are most likely going to be found an infringement. Draw carefully.          

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[1] U.S. Copyright Office, Copyright Basics, http://www.copyright.gov/circs/circ01.pdf (last visited April 15, 2016).

[2] 17 U.S.C. §102(a).

[3] Id.

[4] 17 U.S.C. §302(a).

[5] 17 U.S.C. §106(1).

[6] 17 U.S.C. §106(2).

[7] What is a trademark?, United States Patent and Trademark Office, http://www.uspto.gov/learning-and-resources/trademark-faqs (last visited April 18, 2016).

[8] Must I register my trademark?, United States Patent and Trademark Office, http://www.uspto.gov/learning-and-resources/trademark-faqs (last visited April 18, 2016).

[9] How long does a trademark registration last?, United States Patent and Trademark Office, http://www.uspto.gov/learning-and-resources/trademark-faqs (last visited April 18, 2016).

[10] What are “common law” rights?, United States Patent and Trademark Office, http://www.uspto.gov/learning-and-resources/trademark-faqs (last visited April 18, 2016).

[11] See What is “interstate commerce”?, United States Patent and Trademark Office, http://www.uspto.gov/learning-and-resources/trademark-faqs (last visited April 18, 2016).

[12][12] See What is a copyright?, United States Patent and Trademark Office, http://www.uspto.gov/learning-and-resources/trademark-faqs (last visited April 18, 2016).

[13] Trad. Reg. No. 4656403, Registered Dec. 16, 2014.

[14] Trad. Reg. No. 2211378, Registered Dec. 15, 1998.

[15] Id.

[16] Id.

[17] Trad. Reg. No. 2226415, Registered Feb. 23, 1999.

[18] Trad. Reg. No. 1173150, Registered Oct. 13, 1981.

[19] Stacey L. Dogan & Mark A. Lemley, What the Right of Publicity Can Learn from Trademark Law, 58 Stanford Law Review 1161, 1167-73 (2006).

[20] Id at 1167-74.

[21] Id at 1174.

[22] Id.

[23] Id. At 1174-75 (internal citations omitted).

[24] 17 §107.