Two Cents Worth:
Legality of FUN ART in the Philippines
Again, I vehemently submit my opposition. Enough with the
emotional hullabaloo that we are all fans of fictional characters both locally
and internationally. Kindly stop with the argument that when an individual
creates a fan art out of an established, well-known fictional character, the
same is not mindful of the legal intricacies brought about by this predisposed
creation of some sort, nay, and I RESPECFULLY quote “the complexities of our copyright laws when
lawyers and sometimes judges themselves cannot pinpoint the exact
demarcating (sic) line between what is prohibited and what is not as far as fan
art is concerned”.
Well I say all the more one should not venture into this
kind of endeavor. Well I say, “kaya di umuunlad ang Pilipinas because of this
excuse”.
Well anyhow, just for the sake of amusing with this kind
of emotional fracas, I grew up marveling myself with the likes of Randy
Valiente, Gerry Alanguilan, Gilbert Monsanto, among others, who all created
various characters that shaped our childhood fantasies. I grew up looking
forward to the next comics releases of DC, Marvel and Image, to name a few. Kabayo Kids is worth mentioning.
But
what really is FUN ART? According to the most reliable source, Wikipedia
defines FanArt as "Artwork
that is based on a character, costume, item, or story that was created by
someone other than the artist. The term, while it can apply to art done by fans
of characters from books, is usually used to refer to art derived from visual
media such as comics, movies or video games. Usually, it refers to artworks by
amateur artists, or artists who are unpaid for their fan creations".
Based
on the foregoing, it would be safe to state that fun art is a creation of a fan
sourced from a fictional character created by someone else.
Our
laws are oblique insofar as fun art toleration is concerned. Our jurisprudence
has nothing to say on the matter. These fictional characters are products of
the artists’ imagination and intelligence, passion and whatnot. Only the artist
may reproduce and display, change, alter or distort pieces of artwork thereof –
all this is controlled by the original author, no one else. If you’re an avid
fan, create your fun art out of the fictional character by doodling it in your
notebook, for your consumption – don’t display it, no one gave you the right to
do so. Just marvel on it. As far as the argument of free marketing and
promotion for the original author goes, it is his problem. Let him market his
own creation. You are not obligated neither are you freely given the expressed clearance
to do so. Besides, if you are an avid fan, absent any ulterior motive, you
should advocate or undertake to stop these so-called fan creations.
Of
course, if there’s a will there’s a way – a way to circumvent these prohibitions
on derivative work. The IPC reads in pertinent part, to wit:
“Section 173. Derivative
Works. -
173.1. The following derivative works shall also be protected by copyright:
(a) Dramatizations, translations, adaptations,
abridgments, arrangements, and other alterations of literary or artistic works;
and
(b) Collections of literary, scholarly or
artistic works, and compilations of data and other materials which are original
by reason of the selection or coordination or arrangement of their contents.
(Sec. 2, [P] and [Q], P.D. No. 49)
173.2. The works referred to in paragraphs
(a) and (b) of Subsection 173.1 shall be protected as new works: Provided
however, That such new work shall not affect the force of any subsisting
copyright upon the original works employed or any part thereof, or be construed
to imply any right to such use of the original works, or to secure or extend
copyright in such original works. (Sec. 8, P.D. 49; Art. 10, TRIPS)
Section 185. Fair
Use of a Copyrighted Work. -
185.1. The fair use of a copyrighted work for criticism, comment, news
reporting, teaching including multiple copies for classroom use, scholarship,
research, and similar purposes is not an infringement of copyright.
Decompilation, which is understood here to be the reproduction of the code and
translation of the forms of the computer program to achieve the
inter-operability of an independently created computer program with other
programs may also constitute fair use. In determining whether the use made of a
work in any particular case is fair use, the factors to be considered shall
include:
(a) The purpose and character of the use,
including whether such use is of a commercial nature or is for non-profit
educational purposes;
(b) The nature of the copyrighted work;
(c) The amount and substantiality of the portion
used in relation to the copyrighted work as a whole; and
(d) The effect of the use upon the potential
market for or value of the copyrighted work.
185.2. The fact that a work is unpublished
shall not by itself bar a finding of fair use if such finding is made upon
consideration of all the above factors.”
In view of the foregoing
disquisition and pertinent provisions, I am resolved to conclude, and so view
in legal contemplation, that fun art is legal in the Philippines. It is not a
case to case basis, as others would claim, because jurisprudence has yet to
state this. Laws are inadequate for the time being.
Use the aforesaid
provisions of the IPC then you’re safe.
However, as an “avid fan”
of all these fictional characters which helped cultivate my sadistic
imagination, I suggest a harsher penalty for fan art creators - imprisonment
and the most unconscionable fine. Finally, it may be well to note that the
advice (of bloggers) for fans to create their own is rather misplaced. A fan
should not create, a fan should admire – otherwise, he wouldn’t be called a
fan, would he?
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