Fan Works and Copyright
Is it legal to reproduce and sell fan artwork?
A number of small businesses or individuals is commercially exploiting the Star Trek-related works of fans without being authorized to do so. They are offering photocopies, DVD-Rs and other copies of fan artwork for sale, they are using fan-made images on commercial websites or in online auctions, or they are selling starship miniatures and other items based on fan artwork. EAS and its affiliated fan art sites, The Starfleet Museum, the Journal of Applied Treknology and the Advanced Starship Design Bureau, are among the claimants.
Is it acceptable to use fan art and fan fiction for commercial purposes without asking permission? Many people do not seem to have a problem with that practice, some even accuse fan artists or webmasters of infringing upon the copyright of Paramount/CBS in the first place! So do fans whose work is used without their consent have no right to object?
Important note The following commentary on the legal situation reflects the views of EAS, but not necessarily of every single contributor to every affiliated site.
Is fan art and fan fiction legal? Generally, in intellectual property law, any original work is copyrighted per se, without the need to register it in any fashion or to mark it with a copyright symbol. It is a myth that anything not registered as a trademark or patent would not be protected. Likewise, it is a myth that only commercial work would be subject to copyright. Finally, it is another myth that anything based on a previous work would not qualify for legal protection. Much less would two wrongs make a right and would endorse a third party to sell the intellectual property that fans allegedly "stole" from Paramount/CBS!
The legal situation of fan artwork and fan fiction is not immediately obvious, however. Generally, fan creations based on a previously existing work, namely the Star Trek TV series and movies, may be considered derivative, in which case the original copyright owners, namely CBS Studios and Paramount Pictures, may contest its legality. It is common practice though that the franchise owners do not object to fans building their own stories or designs on the framework of the official, copyrighted Star Trek. They silently approve of fan-made websites and news reporting because, after all, this rather benefits than harms their financial interests. They even permit, albeit not explicitly, professionally produced fan films such as Star Trek Phase II that are unabashedly based on the original characters, designs and stories.
Fan work may be considered protected under the terms of Fair Use in the United States and by similar regulations in other countries. The applicability of fair use depends on various criteria, including:
- "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work."
In practice most fan-created Star Trek-related fiction, artwork, websites or other material qualifies for a fair use exemption. In particular, rigorously non-commercial endeavors such as this website, EAS, and its affiliated fan art and fan fiction sites are made under the terms of fair use in their entirety.
Is fan art reproduced by a third party legal? Unlicensed production and sale of items related to the Star Trek franchise naturally goes against Paramount's and CBS' copyrights and trademarks. However, if someone copies and sells fan artwork without authorization, this is an infringement upon the fan's copyright just as well. Fan artwork, even if it is only a secondary work under the fair use license, is protected by the copyright law, provided that its degree of originality is sufficient. This is the case with many of the fan-made starships that have been targeted for profit-making, and it is definitely true for everything fan-created work shown at EAS and the aforementioned affiliated sites. In fact, it is one reason why we, the editors of the Journal of Applied Treknology, have further tightened the rules for artwork to be accepted.
At the first glance, it may be even flattering that fan creations stir up interest outside the inner circle of fandom and is considered good enough for commercial exploitation. But aside from the legal ramifications there are two important reasons why fan artists in general and EAS with all affiliated sites in particular may not approve of it:
- Fan artists, especially in the internet, customarily make their creations available for free. It should be respected if they don't want anyone else to draw profit from it either. Moreover, correctly credited work for sale without an additional disclaimer may give the impression that the fan who created it earns money with it.
- Reproductions often involve alterations and deteriorations of the original work that the artists wouldn't approve of.
On the other hand, many fan artists might even agree to commercial use of their work under certain terms, if only they were asked in time. However, in none of the recent cases of fan copyright infringement that we know of (as of March 2009) the fan artists were requested permission in advance. In most cases no credit was given to them at all. In some cases copyright notices or logos were even actively removed from the artwork! By any means, business practices like these are borderline criminal, and fan artists have a right to defend themselves with the due insistence.
What can we do? To cut a long story short, if you consider to buy unlicensed Trek-related artwork in spite of everything, please be advised:
- Never buy any reproductions of fan-made Star Trek ships or other stuff if it does not credit the fan who created it.
- Likewise, never buy any DVD-Rs with Star Trek schematics, stories or complete websites, or register at pay websites with such content. Especially the frequently offered "big collections" are definitely duplicated without permission and are mostly available for free at the rightful websites anyway.
You should contact eBay in case you find your own design reproduced there or otherwise used in an illicit commercial fashion. But be advised that eBay will insist on getting a signed fax from you for their VeRO program before they bother to step in, although you may be able to provide better evidence than that.
If you contact an offender directly, point them to the place where your original design is on display, and feel free to refer them to this web page too.
You can also report any offenders to me (using the EAS feedback form). I will add them to my blacklist, I will inform other possible claimants and I may decide to weigh in if I see a chance to get it resolved without expensive lawyers. Please note that I won't publicly show my blacklist, as this would force me to update it every day. Also, I don't want to advertise the objectionable auctions and websites that way.