I've been reading up on copyright, again. I swear this is probably the fourth time I've spent over an hour reading, searching and puzzling over copyright. The basics are simple, create something and you have the right to control how it's used. Which unless expressly otherwise stated by you, means no one can steal, mass produce or republish your work. But what about derivative work, fair use, and parody?
What is fan art and when and to what extent is it allowed?
Copyright is a big deal, it's the rules about what you're allowed to do with the creative works around you. It's job is to give credit and full control of a work to it's creator. To prevent others from using what you've made for their own means or profit. But it's other job is to allow for enough freedom for other artists to be inspired by and build off of existing works. I can't design a robot without thinking about toys and video games and movies. But because I didn't come up with the idea of humanesque mechanical, technological machines, does that mean I can't design one? Obviously not. I can create anything as long as it's not so close to someone else's design that it can be mistaken for it. The law recognises that as long as a new work is "substantially different" it is it's own thing and also copyrighted to the creator. Now "substantially different" is still a grey area dictated by majority opinion, but all in all, this part is pretty straight forward and achievable.
Now comes the grey...
What if I have an opinion on an existing work that inspires me to create something about IT? I'm obviously going to use some of that work to establish and support my own work. Legally speaking, anything you create that is obviously based off of or taken from another work is a "derivative work." But not all derivative works are allowed. Legally? Using other's work without permission is not allowed. Ask for permission from the owner. Sometimes this is hard or impossible if the owner is a corporation, and sometimes it costs money. Exceptions? There are guidelines on what is generally an exception: fair use, parody and educational purposes. (Briefly, fair use is when a derivative work is: made to express a point or opinion different from or about the original work, is made useful, and/or uses only a small piece of copyrighted material compared to the whole.)(We're going to ignore educational purposes because that relates to certain use of materials for teaching not creation.) But these rules and guidelines are slowly growing not by debate and proposition but by court rulings in cases where someone tries to sue someone else over copyright infringement. Our rules about copyright are being made as conflicts in the grey area arise. And while the court tries to slowly chip away at the grey area, everything is still judged on a case by case basis. So though certain uses and creations become more or less "safe," every derivative work is still in some shade of grey. So you have two choices: don't post or publish any derivative works, or try to go with the safest way possible and hope the creator doesn't bring it up.
This makes for a lot of problems. If I'm plausibly within fair use and can't get a hold of the creators what am I to do? I could publish it, share my interpretation, but risk the wrath of the creators later IF they take me to court to actually decide who's right. But I don't want it to go there. And the websites I publish it on don't want to go there so they'll cover they're butts and not allow anything. What am I to do? My opinion is great and creatively expressed! Others agree. Copyright rules, you need to work on this...
Obviously NOT allowed:
Re-posting other's unaltered work as your own or a workaround so others don't have to buy the original. This applies to art, images, video and even music in your own creations.
Grey area:
Fan art. The character isn't yours, the style isn't yours. The whole work, composition, pose, coloring etc is created by you. Is it new? Have you added an opinion, a usefulness, an appeal? General consensus is fan art is okay because you're re-inventing the material and adding your touch to it, you own the picture but not the character. You can't sell it because you don't own all of it, but you can publish it. They usually fall either under flattery or parody.
That's nothing new, but the reason I was thinking about all of this today is what about animation to audio clips? If fan art is taking characters owned by others and drawing them in a new way or situation what if I animate something new to a voice clip from a copyrighted work? It's a derivative work because I'm using the universe, design, characters and piece(s) of audio for another work. But if I draw the whole thing myself and make the whole an entirely new work with my unique spin on it, can I share it? I don't own the rights to some of the parts inside, but I've created something different. Is that the same as fan art or not? Obviously I still can't sell it, and as animation is so painstaking I can't use more than a minute of sound clips without killing myself, so there's no risk of someone taking my section over the original. Or is simply capturing the sound and re-posting it illegal? It's this content that makes this scenario different then the fan art.
The bottom line? No one probably cares, and no one has been taken to court over something like this yet to know what the public will decide. I think our copyright system is horribly outdated and while better than nothing could use an overhaul to make things more clear, more fair and more enforceable. Right now half the Internet is a black market and the other half is paranoid, and that's a sign that the rules aren't working.