Fandom is a huge part of the video game industry. From art to fan fiction, tattoos to cosplays, a truly dedicated fan can integrate games into every part of her life, and many of us have. As a cosplayer, artist, and all around fan, these activities are a major part of my life that I love sharing with other people, but I know they come with risks. Over the next few weeks, I’m going to do a series on the different instantiations of fandom, their legal repercussions, and their impact on the franchises that we love.
Bioware has reached out to the more dedicated Mass Effect fans, looking for art to cover a wall in their office. Doodles, sketches, paintings, and other art projects of every style and every level of dedication are a huge part of fandom. Game companies are well aware that their characters inspire their fans. Some even share these fan creations on social media, like Twitter and Facebook. Bioware wants to be able to share, revise, and display the art fans send it. Notably, they want this right exclusively. This means that the artists and creators could not share or reproduce their art, an upsetting thought to these dedicated creators, who would lose any right to display their work. What most fail to realize is that they don’t necessarily have these rights to begin with.
The content of fan art falls under copyright. Most notably, in addition to particular stories or images, individual characters, who are highly developed, can be copyrighted. Fan art works are derivative works, meaning they are works based on copyrighted works. Under the law, the copyright holder has the only right to make derivative works. Display or distribution of a derivative work is illegal under copyright law, unless done under a license from the copyright holder. Some fan art, however, may fall under the fair use exception.
Judges determine fair use through the application of four factors found in 17 U.S.C. § 107: (1) the purpose and character of the use, (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 first factor considers whether the use is just for personal profit or if it enriches the general public. The second factor considers how much copyright protection the original work is entitled to. The third considers how much of the original was taken, and the importance of that content. The fourth looks at economic considerations, and the impact of the new work on the value of the original copyright.
Selling fan art weighs heavily against the first factor, and may even impact the fourth factor if the developer has licensed the copyright for official works. Fan art that relies entirely on developer content, screenshots for example, likely add nothing that enriches the general public. While neither of these factors necessarily means the art isn’t fair use, the court would weigh all the factors before determining whether or not the affirmative defense is applicable.
Generally, fan art never reaches the courtroom. This may be because fans stop making art upon receipt of a cease and desist letter, so things never go further. More likely, however, unless the art is offensive, misrepresentative, or competing with licensed products, developers see no reason to confront the works. These works are often privately created by dedicated fans, shared with others, acting as free advertising of the highest caliber. Cease and desist letters are also time and money intensive. Blocking all fan art just isn’t good business.