Pop culture fan conventions are huge in the new millennium. “Cons,” as they are often called, have sprung up all over the country and grown into a massive cultural phenomenon. There are Cons for comics, movie and television franchises, toys and much more. By its own reckoning, Comic-Con boasts more than 130,000 attendees a year. Hit television shows like the Big Bang Theory celebrate Cons as part of hip “nerd culture.”
However, there is a less seemly side of Cons—IP infringement. It’s easy to find unlicensed fan art for sale and knock-off products being sold without the proper licensing. Owners of big IP franchises like comic book characters and toy lines may have tolerated much of this activity in the past, but some are taking notice.
For example, in recent years, the LEGO Group has cracked down on enforcement of its trademarks and other IP being used by fan Cons and fan clubs. It has promulgated guidance that has addressed things like limitations on sales of Con t-shirts bearing LEGO Group IP assets like the LEGO® name and logo. In fact, some LEGO® fan clubs have had to change their names due to new IP guidelines issued by the company in the last couple of years. Arguably, the LEGO Group has charted a reasonable approach, balancing protection of its IP while not entirely prohibiting or discouraging use of its IP assets in many permissible ways by fans; other companies can be more or less aggressive.
Con vendors selling “fan art,” should be aware of the risk of a claim for IP infringement. Fan art like “original” artwork depicting copyrighted characters, fan websites or fan novels/stories can all implicate IP infringement. In Warner Bros. Entertainment Inc. v. RDR Books, the court found that fan art in the form of an encyclopedia of “fictional facts” regarding the Harry Potter universe—which appropriated plotlines, summaries of scenes or key events and language used in the novels—established a case of copyright infringement. See Warner Bros. Entertainment Inc. v. RDR Books (S.D.N.Y. 2008) 575 F.Supp.2d 513, 538. The court engaged in an extensive “fair use” analysis and rejected that defense. Id. at 551. Among other things, the court observed that the “actual use of the copyrighted works is not consistently transformative.” Id.
Fan art quite often can also be characterized as a “derivative work,” and the law of copyright protects the copyright holders right to control the creation of derivative works (i.e. works that merely change an original work into a new mode of presentation like the novelization of a movie). See Castle Rock Entertainment, Inc. v. Carol Publishing Group, Inc. (2d Cir. 1998) 150 F.3d 132, 143.
As explained in earlier posts, the law of fair use is complicated and requires a careful review and evaluation of numerous factors, such as purpose and character of the use and the effect of the use upon the potential market for or value of the copyrighted work. (See “Google’s Effort to Digitize Millions of Books” and “Using ‘Borrowed’ Images in Your Blog”).
The step by step questions laid out in my post “Using ‘Borrowed’ Images in Your Blog” are just as apt as regards to fan art, as many of the same principles apply. The application of the fair use factors is a case by case determination, but broadly speaking much fan art does not really amount to parody, critical commentary or substantial transformation so as to fall into the realm of fair use. Though certainly some will. Moreover, because supposedly “everyone does it” or the alleged infringer is a small time operation making little profit, contrary to some popular sentiment, does not, in and of itself, mean the fan art constitutes fair use.
Thus, some fan art at Cons treads on very shaky grounds and Con goers may want to be wary of supporting non-authorized works that violate the IP rights of the content creators whose works have given rise to these conventions that we enjoy.