Fanning an Art: Legal or Not

Let me start this article by citing the definition of Derivative Works under R.A. 8293[1]:

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)

Fans all over the world create their own versions of other literary works or draw from their own imaginations places like Narnia, the Middle Earth, and Hogwarts among others. Fans also have their own versions of the characters they admire the most using settings from the original work, posting them on social media for all the world to see.  Spock, Harry Potter, Gandalf, Pevensie siblings, Captain Kirk -- these are examples of the characters with fan arts and fan fictions created by their mostly devoted fans all over the globe. But the question we have to deal with is: Are these so-called "fan art" legal? and if so, to what extent? 

As of this writing, there are no jurisprudence on the matter. Philippines’ Copyright Law is also silent on the matter. But our law provides the definition of Derivative Works as mentioned above. And most fan arts would, construing the definition liberally, fall within the definition under the derivative works provision. However, there is a sense of danger in leaving the argument at that. Derivative Works has in it a limitation defined under the "fair use" concept. Section 185 of the Copyright Law states:

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.

The question now is, do we consider the creation of fan art under the fair use doctrine?
The answer is NO. Clearly, Section 185 enumerates that there is no infringement of copyrighted material on the following instances:
1. Criticism
2. Comment
3. News reporting
4. Teaching including multiple copies for classroom use, scholarship, research, and similar purposes
5. 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

Now, if we strictly construe this instances, nowhere in the enumeration can we relate the creation of fan art and fan fictions. There is not even a single instance close to the situation regarding these so-called fan arts. The idea is that there is no fair use in the creation of fan arts. The law is pretty much silent on the matter. Even if we consider them as derivative works, there is no safeguard as to the extent the fans  have in creating and even destroying the original works they based their creations on.

Furthermore, Section 177 of the Copyright Law of the Philippines, particularly subsection 177.2 states that:

Section 177. Copyright or Economic Rights. - Subject to the provisions of Chapter VIII, copyright or economic rights shall consist of the exclusive right to carry out, authorize or prevent the following acts:
177.1. Reproduction of the work or substantial portion of the work;
177.2. Dramatization, translation, adaptation, abridgment, arrangement or other transformation of the work;
177.3. The first public distribution of the original and each copy of the work by sale or other forms of transfer of ownership;
177.4. Rental of the original or a copy of an audiovisual or cinematographic work, a work embodied in a sound recording, a computer program, a compilation of data and other materials or a musical work in graphic form, irrespective of the ownership of the original or the copy which is the subject of the rental; (n)
177.5. Public display of the original or a copy of the work;
177.6. Public performance of the work; and
177.7. Other communication to the public of the work. (Sec. 5, P. D. No. 49a) 

Based on this provision, copyright owners need not worry as to any distortions fans may inflict upon their original works because the copyright owner has the exclusive right to carry out, authorize or prevent the translation, adaptation, abridgment, arrangement and other transformations of the work.

Now, let us see the argument at another angle. If we consider fan art illegal, aren't we stepping on the rights of the fans on their right to freely express themselves under the Right of Freedom of Expression?

We may not truly answer whether fan art is legal or not. The law is silent on the matter. Jurisprudence may have yet to come. But right now, what we have is a law that protects original works from people who might use and abuse the same. Anyone may transform and use them as their own work provided it is under the fair use provision. What we should balance out is the exercise of freedom of expression to the extent that we do not step on another person's right. There is no one superior upon the other, no right exercised better than the other. What we need to create is a codified means of exercising "fan arting" without infringing the copyright owner's rights.

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Sources:

[1] Republic Act No. 8293. An Act Prescribing the Intellectual Property Code and Establishing the Intellectual Property Office, Providing for its Powers and Functions, and for Other Purposes