Fanart and Copyright Infringement

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Tina.Kamira

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hey guys! I’m really into movies, tv shows, and video games, and for years I’ve loved making fanart and writing fanfiction. but recently I heard it was technically illegal because of copyright laws? it’s in the realm of “It’s technically illegal, but most content creators like and appreciate when people make fanworks.” I know that as a faithful Christian I should strive to obey all the laws unless they make me do something evil, so because it’s in murky legal territory, would it be a sin to draw fanart?
 
Depends if it’s Fair Use or not.
Display and distribution of fan art that would be considered a derivative work would be unlawful. However, American copyright law allows for the production, display and distribution of derivative works if they fall under a fair use exemption, 17 U.S.C. § 107.
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Your best bet would be to reach out to the person/company/org that owns rights and see if they’ll permit Fair Use or not (ie lawsuit-happy vs. Fair Use-friendly).
 
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Tina, Father already told you on your last thread that you appear to be showing signs of scrupulosity.

Please do not post these “is it a sin?” questions here. Instead, please discuss in person with your priest.

It is not helpful for persons who may be suffering from scrupulosity to keep posting these sorts of questions on the forum; therefore, we discourage it for your own good.
 
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Tis_Bearself said:
Tina, Father already told you on your last thread that you appear to be showing signs of scrupulosity.

Please do not post these “is it a sin?” questions here. Instead, please discuss in person with your priest.

It is not helpful for persons who may be suffering from scrupulosity to keep posting these sorts of questions on the forum; therefore, we discourage it for your own good.
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While I do agree, I sympathize with the poster. Especially with this specific problem. Most of the priests in my area are not from America and seem to be unfamiliar with American copyright law - I’ve asked several about the topic and I could tell that they didn’t understand the question and were therefore unable to provide any advice.
 
If you’re violating US copyright law, and the copyright owner chooses to enforce their copyright, then the rights owner will let you know that they think you’re in violation and want you to stop what you’re doing. You won’t have to sit around and guess. Much less explain it to a priest.
 
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Tina.Kamira said:
I know that as a faithful Christian I should strive to obey all the laws unless they make me do something evil
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No, that is a condition upon which you get a duty to violate the human law (or “law”). Conditions for getting a right to violate a human law (or the letter of the law) are not that strict.

St. Thomas Aquinas writes things like “Wherefore if a case arise wherein the observance of that law would be hurtful to the general welfare, it should not be observed.” or “On the other hand laws may be unjust in two ways: first, by being contrary to human good, through being opposed to the things mentioned above—either in respect of the end, as when an authority imposes on his subjects burdensome laws, conducive, not to the common good, but rather to his own cupidity or vainglory—or in respect of the author, as when a man makes a law that goes beyond the power committed to him—or in respect of the form, as when burdens are imposed unequally on the community, although with a view to the common good. The like are acts of violence rather than laws; […]. Wherefore such laws do not bind in conscience, except perhaps in order to avoid scandal or disturbance,” (Summa Theologica).
 
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The OP has a history of scrupulous posts. This approach really doesn’t help. A big block of text is just going to make matters worse. The best thing is to stop attempting to adjudicate matters of conscience for the OP and let them seek help offline.
 
TheIttyBitty said:
Depends if it’s Fair Use or not.
Display and distribution of fan art that would be considered a derivative work would be unlawful. However, American copyright law allows for the production, display and distribution of derivative works if they fall under a fair use exemption, 17 U.S.C. § 107.
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You’re mixing up things a bit. Fair use says that under some circumstances, you can legally violate copyright when making something, even if the copyright holder complains. For example, quoting from a book in a review is violating copyright, but it’s normally considered fair use. Fair use is a complicated matter and unless there’s clear precedent, most of it is really decided by courts on a case-by-case basis.

Companies don’t “permit” fair use–if something is fair use, it doesn’t matter if the company has a problem with it or not. What you’re referring to here is something I don’t think there’s a technical term for, so I’ll call it the “don’t care exception.” Basically, if the copyright holder doesn’t care about you violating copyright, you’re effectively in the clear. A lot of times people will claim that video game playthroughs on YouTube are fair use, but that’s actually a questionable claim–especially given that a lot of them are monetized (something being done for profit makes it more difficult to qualify as fair use). But they fall under the “don’t care exception” because almost no companies have enough of a problem with it to actually take any kind of legal action against it (some encourage it!).
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With fair use, you don’t know and you’re hedging bets that the government says it’s mostly okay, so it’s okay, without knowing the future or what could transpire (someone at the company might decide they don’t like the likeness of their character). With permission, you know you have permission, and you can keep those permissions on file. You can reach out to a company and over the phone, without evidence, ask them, just to relieve worries about “sinning” due to hurting a business or breaking the law. Many companies have a legal dept that know what to look for when deciding lawsuits. This isn’t asking them what is fair use so much as what they will or won’t file a lawsuit over.

otoh: there are people out there that go out of their way to offend companies via Fair Use on purpose in order to get the lawsuit, in order to make a name for themselves.
 
Tina.Kamira said:
technically illegal
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it WOULD be illegal if you made money out of it, selling fan art/fan fiction is wrong, but if you just post it on a website and people enjoy it for free is fine, the problem here is using copyrigth property of others as your OWN, fan fiction should always goes like:
“i did NOT created the Dare Devil, it belongs to Marvel/Disney, i am just a huge fan and i think that (the fanfic) would be cool”

If you do that and people donate to you than is ok, becuse they will be supporting you and not paying for the fanfic.
 
LeonardoArruda said:
it WOULD be illegal if you made money out of it, selling fan art/fan fiction is wrong, but if you just post it on a website and people enjoy it for free is fine, the problem here is using copyrigth property of others as your OWN, fan fiction should always goes like:
“i did NOT created the Dare Devil, it belongs to Marvel/Disney, i am just a huge fan and i think that (the fanfic) would be cool”
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This is a common misconception. Infringement is still infringement even if you don’t make any money off of it. The disclaimer As you described dosnt. actually do anything, legally at least. you can still be sued even if you have such a disclaimer.

Fanart is technically classified as a derivative work. According to American copyright law the copyright owner also owns the rights to make - or prevent from being made - any derivative work I do agree with @JSRG above, in that most companies probably don’t care how this kind of infringing work, but unless you have explicit written permission from the rights holder to make a derivative work, it is technically infringing - silly as that may be.
 
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