Having been busy the past few days examining the new fan art policy for theO, I've gotten into a brief discussion concerning copyrights and its relation to fan art. The exchange between myself and others gave rise to another response by another member, in the form of this post Thoughts on the New Art Policy by vacuumology. In it, it questions various things discussed originally in the comment section of the policy review item. I'll begin by stating its basic assumptions and contentions, which the entire post appears to depend upon for its argument to work.
"Fan Art: Under U.S law (since as far as I know, theOtaku's server is based in the United States) this is classified as a derivative work..."
"...[T]his argument about copyright laws...it's not very relevant for two reasons: firstly, this came up because we were discussing the rights of fan artists, and someone came a long and said that technically the artist doesn't own the right to that work because it is fan art. This is not true. The artist, as I said before, owns the rights to the artwork they created, maybe not the content (which can get confusing), but the the important thing to remember is that a fan artist is still entitled to his or her right to his or her artwork."
"TheOtaku is violating the artist's rights; giving permission to alter or otherwise use an artwork lies solely with the creator of that artwork, and by bypassing the artist, theOtaku is essentially claiming ownership to artwork it did not create....[T]he most basic point is that the artist retains at least some right to the artwork, and therefore permission must be explicitly given."
"The issue of this policy change is absolutely not about the legal repercussions. I understand why it was brought up; the rights of artists came up, and it just spiraled from there. We are arguing the hypothetical here...."
"Any art that you create, you have rights to."
"To take permission where it has not been given infringes on the rights of the original creator."
"the issue of this policy change boils down to one thing: the right of the artist to grant permission for others the use his or her work, which lies expressly with him or her."
First, concerning the statement quoted above on derivative works, I'm not sure if that quote is meant to reflect my own comments I left in the comments section, or if that quote reflects the author's own views on the status of fan art. As such, I find it difficult to even examine what that statement means in the context of vacuumology's post. Here's a section of what I said in my original comment, which the post seems to draw upon:
"I've seen some people claim that fan art is more clearly seen as being derivative works, thus, sharing some copyright entitlements, but it's not exactly clear how it is (here's that gray area of the copyright laws)."
And apart from that section, the only other mention I made to derivative works is how a copyright holder is entitled to grant permission to produce derivative works. Simply, I don't think it's even clear or settled that fan art can be classified as derivative works. Here's the definition of a derivative work, given by the Copyright Law of the United States and Related Laws Contained in Title 17 of the United States Code (October 2011):
A "derivative work" is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a "derivative work".
Among 6 entitlements, a copyright holder has the following relevant entitlements:
"§ 106 · Exclusive rights in copyrighted works
Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;"
I'll stop there for now, but that's the basic legalese for some copyright terms and entitlements. These codified terms and entitlements are what I was referring to, making it clearer that "rights-talk" isn't as clear as first appears to be. Unfortunately, vacuumology's post doesn't really clear up those kinds of rights-talk. It seems to equivocate on the word "right", allowing fan artists to have rights, but of a mysterious kind that I'm not allowed to analyse.
In it you'll find numerous mentions of how artist have rights, but only the "right" kind of rights that support her side of the argument. In fact, her argument dismisses copyright discussions as "incorrect, and therefore irrelevant." Yet, while those kinds of rights aren't important, some other kind of vague, ambiguous right is relevant. Is this a legal right? Is this a right in an informal sense? It's not clear, but somehow "TheOtaku is violating the artist's rights" - but it surely can't be copyrights that are being violated! That's irrelevant and not the issues, or so it seems. Perhaps it's a human rights issue, so I should call in Amnesty International to examine what I can't keep clear. Maybe it's Legal Rights in general that are relevant, so I should make appeals to Wesley Hohfeld's analysis of legal rights into rights, immunities, privileges (liberties), and powers. Fan artists have rights, and those rights are capable of being violated. However, since anyone's reference to the most relevant sense of rights as copyrights isn't valid, I'm not sure of what kind of rights anyone here has or how they can be violated.
Perhaps, and I suspect this is closer to what's going on, that arguments of the sort I'm replying to aren't critical enough in their aims. At first glance, vacuumology's post seems plausible and persuasive in comparison to most defenses of fan art as having rights. In fact, in her own comment on the post she says: "copyright laws are not black and white and there are a lot of other things that have to be looked at when analyzing them...." I agree that it's not black-and-white (e.g. my quote:"when bringing up the issue of copyrights, remember that fan art is a gray area, which sometimes infringes on copyrighted works."), yet I'd place emphasis on that part about many things "that have to be looked at when analyzing them...." Unfortunately, the post isn't sufficiently rigorous enough in what it means for a fan artist to have rights. Granted, it does mention how derivative works (which she doesn't define) are protected by rights (a term used vaguely and ambiguously in her post). It also obliquely references § 202 · Ownership of copyright as distinct from ownership of material object, but doesn't adequately distinguish how the holding of a copyright is separate from the holding of the material property itself. In fact, in places it seems to forget its own distinctions and plainly states in several remarks that the artists own the rights to their creations - but doesn't distinguish if the artist owns the copyright, the derivative copyright, or the material work itself. No mention is made of the scope of the derivative copyright or the original copyright, apart from how the artist owns the "content" of the art. Again, it works only if you know what a right is on her account, and if you already agree that your art is somehow (legally?) protected by rights. But anyone's talk of copyrights - viz. the set of entitlements that actually protect your works - is "a completely different argument"; therefore, you have a right to rights, but don't bother examining what those rights are, what their scope is, or what entitlements they grant you.
