Copyright Infringement? Your friendly neighborhood atty adds 2 cents

[Galactica]

Hi ponyfriends.  I recently became aware that there seems to be a lot of misinformation and apprehension out there about whether or not something (particularly fan art) violates copyright law.  Surprisingly- I actually know a little about the issue - and would love to share - particularly if you are an artist worried about infringement issues. Unfortunately, my knowledge is limited to U.S. law- so if you are an artist in the U.K.- I can't help

ALTERNATIVELY- if your attention span is short or you just aren't in the mood (or my post is incomprehensible)- Bronley was kind enough to point out this very nice blog post- which I thought did a very good job of summing the issue up in an understandable way. http://www.plagiarismtoday.com/2010/05/13/the-messy-world-of-fan-art-and-copyright/

Still there?  Still awake?  Okay- so I want to set the record straight as to the alleged “fan art clause.”  There is no such thing.  Copyright infringement/violation suits arise out of the Copyright Act of 1976.  There is no amendment or clause to the Act or any other statute that I am aware of that speaks specifically to “fan art.”  That said, if someone does come after you (in the U.S.), claiming that your work is derivative of their copyright (ie your plushie of Twilight)- you can and likely will raise the “Fair Use” affirmative defense.  That said- unless you are actually causing harm to the owner of the copyrighted work- you are VERY unlikely to be sued.
Here is an example.  Lets say you started producing a small plastic pony called “My Little Brony.”   IF you sold a few thousand through DA or your comic book store- Hasbro would probably not care- particularly if it looked as though the product was fueling the market/madness for MLP products.  However, if their attorneys/marketing department decided that your product/sales were a) having a negative effect on brand image or b) having a negative effect on market sales (ie people buying MLBs instead of MLPs) Hasbro would probably send you (or more likely DA and your comic book store) a letter asking that the product no longer be offered for sale through a commercial venue.  If you thumbed your nose at the letter- AND Hasbro decided that you really were causing harm- Hasbro could file suit in federal court to stop you. 
You would then need to decide whether your infringing work is a “fair use” of Hasbro’s MLP copyrights based on the four factors discussed below.  The Court will weigh EACH of the four factors and no one factor is determinative (including the factor discussing commercial use). 

FAIR USE factors, quoted from the seminal case Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578-79, 114 S. Ct. 1164, 1171, 127 L. Ed. 2d 500 (1994):

FIRST FACTOR  (commercial use factor)

The first factor is “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” § 107(1). The enquiry looks to whether the use is for criticism, or comment, or news reporting, and the like, see § 107. The central purpose of this investigation is to see whether the new work merely “supersedes the objects” of the original creation, Folsom v. Marsh, supra, at 348; accord, Harper & Row, supra, 471 U.S., at 562, 105 S.Ct., at 2231 (“supplanting” the original), or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is “transformative.” Leval 1111. Although such transformative use is not absolutely necessary for a finding of fair use, the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. Such works thus lie at the heart of the fair use doctrine's guarantee of breathing space within the confines of copyright, see, e.g., Sony, supra, at 478-480, 104 S.Ct., at 807-808 .

However, the Supreme Court makes it clear that commercial use is only one factor to consider- and just because something has a commercial nature- does not take it out of fair use:

If, indeed, commerciality carried presumptive force against a finding of fairness, the presumption would swallow nearly all of the illustrative uses listed in the preamble paragraph of § 107, including news reporting, comment, criticism, teaching, scholarship, and research, since these activities “are generally conducted for profit in this country.” Harper & Row, supra, at 592, 105 S.Ct., at 2246 (Brennan, J., dissenting). Congress could not have intended such a rule, which certainly is not inferable from the common-law cases, arising as they did from the world of letters in which Samuel Johnson could pronounce that “[n]o man but a blockhead ever wrote, except for money.” 3 Boswell's Life of Johnson 19 (G. Hill ed. 1934).

SECOND FACTOR  (news/journalist factor)

The second statutory factor, “the nature of the copyrighted work,” § 107(2), draws on Justice Story's expression, the “value of the materials used.” Folsom v. Marsh, 9 F.Cas., at 348. This factor calls for recognition that some works are closer to the core of intended copyright protection than others, with the consequence that fair use is more difficult to establish when the former works are copied. See, e.g., Stewart v. Abend, 495 U.S., at 237-238, 110 S.Ct., at 1768-1769 (contrasting fictional short story with factual works); Harper & Row, 471 U.S., at 563-564, 105 S.Ct., at 2231-2233 (contrasting soon-to-be-published memoir with published speech); Sony, 464 U.S., at 455, n. 40, 104 S.Ct., at 792, n. 40 (contrasting motion pictures with news broadcasts); Feist, 499 U.S., at 348-351, 111 S.Ct., at 1289-1291 (contrasting creative works with bare factual compilations); 3 M. Nimmer & D. Nimmer, Nimmer on Copyright § 13.05[A][2] (1993) (hereinafter Nimmer); Leval 1116. We agree with both the District Court and the Court of Appeals that the Orbison original's creative expression for public dissemination falls within the core of the copyright's protective purposes. 754 F.Supp., at 1155-1156; 972 F.2d, at 1437.

THIRD FACTOR

The third factor asks whether “the amount and substantiality of the portion used in relation to the copyrighted work as a whole,” § 107(3) (or, in Justice Story's words, “the quantity and value of the materials used,” Folsom v. Marsh, supra, at 348) are reasonable in relation to the purpose of the copying. . . Attention turns to the justification for the particular copying done, and the enquiry will harken back to the first of the statutory factors, for, as in prior cases, we recognize that the extent of permissible copying varies with the purpose and character of the use. See Sony, supra, 464 U.S., at 449-450, 104 S.Ct., at 792-793 (reproduction of entire work “does not have its ordinary effect of militating against a finding of fair use” as to home videotaping of television programs); Harper & Row, supra, 471 U.S., at 564, 105 S.Ct., at 2232 (“[E]ven substantial quotations might qualify as fair use in a review of a published work or a news account of a speech” but not in a scoop of a soon-to-be-published memoir).

FOURTH FACTOR  (harm caused by your use)

The fourth fair use factor is “the effect of the use upon the potential market for or value of the copyrighted work.” § 107(4). It requires courts to consider not only the extent of market harm caused by the particular actions of the alleged infringer, but also “whether unrestricted and widespread conduct of the sort engaged in by the defendant ... would result in a substantially adverse impact on the potential market” for the original. Nimmer § 13.05[A] [4], p. 13-102.61 (footnote omitted); accord, Harper & Row, 471 U.S., at 569, 105 S.Ct., at 2235; Senate Report, p. 65; Folsom v. Marsh, 9 F.Cas., at 349. The enquiry “must take account not only of harm to the original but also of harm to the market for derivative works.” Harper & Row, supra, 471 U.S. at 568, 105 S.Ct., at 2234.  Since fair use is an affirmative defense, its proponent would have difficulty carrying the burden of demonstrating fair use without favorable evidence about relevant markets.

[Loa]

As this refers to American law only, and we are an international board, I am locking.