When it comes to selling fan art online, the difference between parody and plagiarism is quite clear. Merriam-Webster defines parody as a work in which the style of an author or work is closely imitated for comic effect. Conversely, plagiarism is defined as the act of stealing and passing off the ideas or words of another as one’s own without crediting the source.
The line between the two can be quite fine. According to copyright law, the author or copyright owner has the right to insist upon the cessation of copying, distributing, performing or displaying characters of their creation without prior approval. Copyright owners also enjoy protection from the creation of derivative works based upon their creations.
Technically, this means fan art can be construed to be in violation of copyright law. However, if the piece can be proven to be a parody of the work — as opposed to plagiarism — offering it for sale on enterprise ecommerce platforms may fall under the tenets of the Fair Use Doctrine.
Fair Use is typically measured by the following four criteria:
1) Purpose and character of the use: If the usage adds something new, or can be shown to be employed for the purposes of education, Fair Use may be applied.
2) The nature of the copyrighted work: “Borrowing” liberally from the product of another individual’s imagination will likely be considered a violation of Fair Use, as compared to a factual work such as a news story or a current event.
3) Amount and substantiality of the portion used: If a single element of a copyrighted item is involved, Fair Use is more likely to apply than in cases of near wholesale appropriation.
4) Effect of the use upon the potential value of the copyrighted work: If the usage can be shown to usurp sales of the original work, Fair Use is likely to be discounted.
Because works of parody tend to avoid directly copying the source material, copyrighted names, logos and/or characters, they are typically far enough away from the original work so as not to be confused by consumers as originating from the author. In such cases, Fair Use is likely to be applied.
Ultimately, though, most authorities agree it largely boils down to the intention of the creator of the fan art. If the creator is trying to co-opt the author’s work and expand upon it for his or her own personal gain, this is likely to be looked upon as copyright infringement. Meanwhile, as a parody is typically a comic representation of the original work, copyright laws may not apply.
However, practitioners of parody must be careful to avoid slander. Defined as the utterance of false misrepresentations to defame and damage another’s standing, any work of parody seeking to damage the reputation of a work can be construed to fall into this category and is likely to be considered an actionable offense.
With all of that said, in most cases, fan art exists to glorify the work upon which it is based. For this reason, many authors turn a blind eye, as they know it can be useful for the promotion and extension of their brands. However, if you are selling fan art online and you’re concerned about the difference between parody and plagiarism; if you ever find yourself in a situation where an author is irritated, apologize and shut down sales right away.
While this article touches upon issues surrounding copyright law, it should not be considered legal advice. If you have specific questions about the laws governing copyright, you should consult a qualified copyright attorney.