Intellectual Property, Fan Art and South Africa

In the recent weeks I’ve had a number of discussions with artists and designers about the do’s and don’ts of fan conventions and art in the digital environment. This is, in part, a result of the annual Fancon: Cape Town Comic Con, but the discussion also falls within a larger framework relating to the ease by which one can upload and share media on various online platforms.

With Fancon around the corner, now seems as good a time as ever to address some of the misconceptions concerning intellectual property and so called ‘fan art’, as well as a few other genres of artistic expression most often found at comic book and fan conventions.

Applicable Law

While the global laws relating to intellectual property rights are generally very similar, there are a number of minor differences that can be found among the various national jurisdictions. For example, in the United States the ‘Fair Use’ provisions have been said, by some, to provide a means by which fan art can be justified and, as such, fall outside of the ambit of infringement. However, in South Africa the ‘Fair Dealing’ provisions are noticeably different and do not allow for such an argument to be made.

It is important to note that any violations of a claimants IP rights will be determined by the laws of the jurisdiction said violation is claimed to have occurred in. For example: If a company in the US determines that one or more of its IP rights have been violated by an artist that has created and distributed the work in South Africa, said company will have to utilise South African laws in order to bring any legal action.

The relevant South African laws are the Copyright Act and the Trademarks Act. Due to the nature of fan art it may be the case that the rights violated are sourced from both of these Acts.

What is Fan Art?

Fan art typically refers to the production of media (art, animations, writing etc.) created by fans of a work of fiction. The fan art is usually derived from an original piece by persons who are 1) not the original author 2) have not been commissioned to create the piece 3) have not been authorised to make the piece. While it is not uncommon for the owners of the original work to endorse fan art, or certain instances of it (by sharing such art on social media platforms or running competitions), the legality of fan art has been hotly contested in the US and other foreign jurisdictions.

Copyright Law in South Africa:

The Copyright Act 98 of 1978 grants the copyright holder a number of exclusive rights, the violation of which constitutes an infringement and is actionable.

In relation to artistic works, section 7 of the Act provides that copyright in an artistic work vests, in the owner, the exclusive right to do or to authorise the doing of a number of acts in the Republic. Those relevant to this examination include:

a) Reproducing the work in any manner or form

e) making an adaptation of the work

f) doing, in relation to an adaptation of the work, any of the acts specified in relation to the work in paragraphs (a) to (d).

These are, for the most part, self-explanatory. Reproducing the work in any manner or form would include making unauthorised t-shirt prints, posters and digital copies. It is important to note that the exploitation of the work (the sale) is not relevant. One infringes copyright by engaging in any conduct that falls within the exclusive rights of the copyright holder, regardless of whether or not one distributes the subject of the copyright issue.

Derivative Works:

Special mention should be made of derivative works, as there seems to be some confusion as the ambit of the copyright holders rights in this regard. The confusion seems to be based upon the fact that fan art (rather than simple replication of an original) often consists of a variety of new and imaginative scenarios. For instance: A well known character depicted in a different pose or in a new environment. That is, the character is derived from an original piece but is set in a scenario drawn from the artists own imagination. While the new piece may be eligible for its own copyright protection, the ownership of said copyright will vest in the copyright holder of the original piece (the piece the art is derived from) and will still constitute an infringement. In terms of South African copyright law, derivative works will constitute an infringement.

Infringement:

Infringement, in terms of the Copyright Act, falls into two categories. That of primary and secondary infringement. Primary infringement occurs when the infringer commits any of the acts which, in terms of the Copyright Act 98 of 1978, the copyright holder has the exclusive rights to do or to authorize. This, as noted above, relates to the act itself and would be the primary concern of artists directly infringing copyright by creating unauthorised pieces.

Secondary infringement occurs when the infringer, whilst not actually committing the act of primary infringement, knowingly does something to further the commission of the primary infringements. For instance, setting up a market or shop that deals exclusively in copyright infringing material. It is important to note that the infringer must knowingly do something that furthers the commission of the primary infringement.

Criminal Offences:

While most infringements relating to the Copyright Act concern civil offences, section 27 of the Act provides for instances where copyright infringement will become a criminal matter.

In terms of the section any person who at a time when copyright subsists in a work, without the authority of the owner of the copyright—

(a) makes for sale or hire;

(b) sells or lets for hire or by way of trade offers or exposes for sale or hire; (c) by way of trade exhibits in public;

imports into the Republic otherwise than for his private or domestic use;

(e) distributes for purposes of trade; or

(f) distributes for any other purposes to such an extent that the owner of the copyright is prejudicially affected, articles which he knows to be infringing copies of the work, shall be guilty of an offence.
A person convicted of an offence under this section shall be liable—

(a) in the case of a first conviction, to a fine not exceeding five thousand rand or to imprisonment for a period not exceeding three years or to both such fine and such imprisonment, for each article to which the offence relates;

(b) in any other case, to a fine not exceeding ten thousand rand or to imprisonment for a period not exceeding five years or to both such fine and such imprisonment, for each article to which the offence relates.

The first South African case concerning copyright as a criminal offence was the Four Corners case. The offender, after uploading a torrent to a popular website was found guilty in terms of the above sections and sentenced to a three year suspended sentence and fined R3000.

While, of course, there are a number of exceptions to the above (those pertaining to satire and criticism), such activities seem to run counter to the notion of ‘fan art’. Moreover, the common practice seems to focus on the printing and sale of derivative works. Such activities generally violate the provisions of the Copyright Act and, despite the fact that such activities, in relation to fan art, have yet to see legal action follow in South Africa, that is not to say that they will not in the future.

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