Prof. Doug Lichtman, UCLA School of Law
June 5, 2013
As a faculty member who teaches copyright law at both the Law School and the Business School, I receive a large number of emails each week with questions about how copyright law works in the real world. The statute, my students realize, says whatever it says about what is and is not permissible, but in the real world there are real people and real businesses that must make real decisions – and many of those for good reason cross the lines that the statute seems to draw. This week, though, I received an email along these lines from an unlikely source: my high-school aged nephew.
Now I should preface my comments here by pointing out that every proud uncle thinks his nieces and nephews are the coolest, smartest, most interesting, most exciting young people on the planet. And, while acknowledging that standard bias, I will nevertheless say that this particular nephew really is one of the coolest, smartest, most interesting, most exciting young people on the planet. I have marveled at his smarts, compassion, thoughtfulness, and tenacity his whole life, and getting to know him is part of what inspired me to ultimately want to have my own kids (good call, it turns out), and part of what makes life in Los Angeles (pronounced “far away from the niece and nephews”) particularly hard.
The email in question arose because this nephew of mine has taken up spray painting as a hobby. Most of his work raises no issue. He has a fun self portrait that he created, for instance, and a striking version of a city skyline. But he has also done what everyone in his peer group presumably does: He has created some art that reflects favorite movie characters and television programs. Here’s what he wrote:
Recently, I got into spray painting on canvas and poster board, and I’m experimenting with shirts and hoodies. I do a lot of fan art designs, for characters, TV shows, movies, etc. I was sure it was okay to make these things and give them to my brother, or hang them in my room, but now I am thinking about selling some of my work.
The attached print is going to be the first one I do on a shirt. It’s “fan art” of a show called Breaking Bad. I’ve been researching (i.e., I googled “Fan Art Copyright Laws” two minutes ago) fan art copyright laws, and couldn’t find anything I understood.
Main Question: Do I have to pay royalties to Breaking Bad? If so, how do I do that? Is there some rule that makes this an original piece? I know that this really won’t be noticed by anyone, but still. What’s the right thing to do here?
Good questions. Let’s start with the legal issues.
Whoever holds the copyright in a television program or movie by statute enjoys the exclusive right to create associated t-shirts, posters, cups, and the like. The specific statutory authority might be Section 106(1) of the Copyright Act, which literally forbids the unauthorized reproduction of copyrighted images; or it might be Section 106(2) of the Copyright Act, which more broadly gives copyright holders the exclusive right to create “derivative” work based on the original material. But, whether the law thinks about a spray-painted image as a reproduction or a derivative work, the point would be the same: Making the image is a technical violation of copyright law, even if the image is not being sold or distributed.
Our analysis does not stop there, however. Under Section 107 of the Copyright Act, certain unauthorized uses of copyrighted material are excused as “fair use” – which means that, despite being technical violations of the law, these uses are permitted. There is no bright line that distinguishes the fair from the unfair, but the law is trying to balance society’s interest in rewarding original authors and creators on the one hand, with its interest in promoting the worthwhile re-use of copyrighted material on the other.
Said slightly more formally, then, the first consideration in fair use analysis is the degree to which the copying at issue seems likely to undermine the incentives copyright law was meant to create in the first place. Copyright law in general recognizes rights in authors in order to motivate them to create, disseminate, and in other ways develop their expressive work. The more some act of unauthorized copying would interfere with that goal, the less likely that act will be excused as fair use. Put differently, the issue here is (a) whether the unauthorized borrowing deprives the copyright holder of some legitimate, substantial income stream or opportunity; and (b) if it does, as a practical matter will that lost income stream or opportunity plausibly reduce the overall incentive to create, disseminate, and in other ways develop copyright-eligible work?
The second consideration in fair use analysis, meanwhile, is the degree to which the unauthorized copying at issue makes possible some output that is worthwhile, and that would be hard or harder to achieve if explicit permission were required. The idea here is simple. Copyright permission is like a tax on downstream activities that use copyrighted work. In part, that tax comes in the form of the time and money it takes to identify and negotiate with the relevant copyright holder, both at the start of a project and as the copyist’s needs change. In part, that tax comes in the form of any licensing fee or restriction that the copyright holder demands as a condition of using the work. Either way, this tax works like any other tax: It reduces the extent to which the taxed activity will happen. In instances where the copying at issue is not worthwhile, that loss is nothing to mourn. However, in instances where the copying at issue is worthwhile – that is, in instances where the public has an interest in supporting the allegedly infringing activity – any loss along these lines is an important consideration that weighs in favor of a fair use finding.
So where does that leave my nephew?
My nephew’s work in isolation is unlikely to matter to the overall economics of copyright protection, and so we might at first think that this is an easy case for fair use. His art is good, sure; but he is not likely to sell that many t-shirts, right? That analysis, while tempting, does not hold, however. As the cases make clear, the right question is not to ask whether the use at issue in isolation would undermine copyright incentives, but instead to ask what would happen if uses like this were to become widespread. Copyright holders would likely argue that, if every high school fan were allowed to produce and sell t-shirts based on copyrighted popular images, it would deny copyright holders in the aggregate of substantial, and possibly important, revenue. Marvel Comics, for instance, presumably earns a significant sum by selling t-shirts with Spiderman, IronMan, and the rest of the heroes on them.
On the other side of the balance, however, is something else important: allowing young people to express their creativity through the re-use of popular, successful copyrighted images. Sure, in theory, my nephew might be just as engaged and learn just as much if he practiced his craft using images fully of his own creation. But, as a practical matter, it is hard to deny the extra allure of experimenting with images that are already well known. Put differently, I’m sure my nephew’s self-portrait was fun to create, but my guess is that his portrait of Darth Maul was even more so. (Or, looking at it again, maybe that was intended to be a portrait of his younger brother? Hmmm.)
Warner Brothers famously has taken the position that, whatever the law says, Warner will do its best to leave room for derivative work that is “by fans, for fans, for fun.” This is in part a business decision that recognizes the promotional value of fan engagement and fan art. But it is also a good-hearted gesture by a company that seems truly excited about how its properties inspire fans to create their own stories, and websites, and images. Remember, Warner is full of people who have spent most of their adult lives bringing Harry Potter to the movie theaters; no surprise, then, that in their hearts these same people find joy and meaning when they hear about (say) sixth graders writing even unauthorized short stories about that boy wizard, and through that developing their own story-telling and writing skills.
So what to tell the nephew? I suspect that contacting the relevant copyright holders will be impossible in this situation, and, even if we reach them, my guess is that we will just get a form letter declining to authorize the work. That said, it would be a fun experiment, and I think part of my response will be to suggest just that. In the meantime, though, I will counsel a conservative approach. Selling the work sounds risky to me, because, as noted above, that presumably makes my nephew too much of a competitor to the copyright holders. And even giving away the work widely makes me uncomfortable, because even free t-shirts would still undermine a market that the copyright holders themselves traditionally serve. A website showing off the art to the nephew’s family, friends, and peers seems safer; the website would promote and encourage my nephew’s worthwhile experimentation, but it would not plausibly impact the overall economics of the widely successful copyrighted works on which he is likely to base his art.
And yes, nephew, because you can’t sell your works, sign me up for a contribution toward the cost of the supplies to create them. Copyright law should not be stopping this creativity. But we should at the same time be careful to honor the rights of the people whose work we both have enjoyed and now want to build on.
Comments From Our Readers
David Eaton: This is an excellent analysis of a very tough situation. Thank you for sharing. I think the most important ‘takeaway’ is that many times people think a choice is solely between two options. You have clearly described a third, and reasonable, option.
As owner of Faulty Records, I released a record for All The Apparatus, an 11-piece street band I saw in downtown Portland. They blew my mind with their creativity, and reminded me of The Polyphonic Spree – whom I had previously produced. We released a record (amazing.bandcamp.com) with artwork that was created by the band.
To combat piracy, Faulty Records has Google alerts set to monitor unauthorized releases. Recently, I received an alert of a website showing a mockup album cover by a young artist Kate Ohara (http://kate-ohara.com/ALL-THE-APPARATUS-ALBUM-COVER). I was so impressed with Kate’s work, that I have contacted her to discuss future work.
The point being, that by not violating the copyright holder’s rights, and by showing your own talent, you may find you have passed the job interview you never knew you had!