I was just wondering if I could get some advice on something I’m not quite sure of. Basically I can be very scrupulous at times and have trouble determining if something is sinful or not.
Basically I enjoy drawing but lack the imagination to create original works, so what I do is draw other pieces of work, such as famous superheros (Fan art), celebrities or simply other random drawings I find on the internet. All of this is done for personal use and I have no intent on selling or displaying these drawings, at most I’ll just show a friend or something.
Now this is where I get worried. Technically speaking copying a drawing or drawing a famous character such as Batman is considered copyright/plagiarism and as a result I feel I have sinned, but at the same time I don’t see how this is morally wrong as it for personal use and seems to be a pretty common practice.
What does everyone else think? Am I stealing/sinning in any way?
Here is something I wrote to another CAF member that I think will be helpful for you:
Copyright law isn’t as black and white as you think. Copyright is about protecting people’s expression. It incentivizes them to make something creative because they know they will be able to sell it.
Every time you record something on DVR you are violating someone’s copyright. HOWEVER, Fair use of copyrighted material is protected and perfectly legal. It’s a defense under the law that allows you to violate someone’s copyright. It goes hand in hand with the First Amendment. If we let people protect too much under copyright, it can restrict the free speech of someone else. Fan art can often be fair use. Unfortunately, the thing with copyright law is you never know if it is fair use until the court says so! So, you just kind of have to make a judgment call if it is fair use or not. If the copyright holder does not think it is fair use, they will sue you. Then the court decides if it is fair use.
Also, copyright law is not a self enforcing crime. Many times copyright holders will not sue about fan art because they think it promotes their product. Basically, if the copyright holder does not mind if it’s copied, the law says it’s ok. It’s the same thing as trespassing. If you step foot on property I own without my permission, you have trespassed. If you are a Fedex driver dropping off a package, I’m probably ok with it.
Many artists begin by copying drawings in comic books and other sources. A good book on how to draw superheroes would be helpful. That way, the whole drawing process is explained without you having to worry. The drawings are there for you to copy and learn from. The same for a good anatomy book. Plenty of artists I know have copied comic book characters with the reason of developing their drawing skills. Making a character look three dimensional by using line weight, light and shadow and perspective all takes time to learn.
Ideally, a somewhat more advanced artist can draw a human figure from imagination, and then create your own costume/clothing. Learning how to draw realistic folds requires a good reference book. The same with drawing surfaces like rock, metallic objects and the textures of other materials, like hair.
There are some good “how to draw” tutorials by working artists on youtube. Unfortunately, some are bad, while others are very good.
So, as long as you are just learning and not selling these drawings, you are OK.
As someone who has been in similar shoes here is a helpful answer, there is something called fair use in copyright law which permits copying under certain conditions. One of those conditions is making a derivative work, look it up yourself. This means that if say you were looking up a picture of Christian Bale as Batman and doing a sketch copy, this is totally acceptable under copyright law because you are taking a photograph and using it as a basis for a derivative work in a pencil drawing.
I think even taking the photo and playing with it in photoshop would also be acceptable at a certain point, I’m not entirely sure, but then again neither is the US government. The practice of the law is constantly changing because with the onset of the internet judges are finding it hard to determine how the law should be applied in particular cases. I don’t think there is a hard and fast formula to determine if activity x violates copyright, much of the guidance and parameters in individual cases come down to individual court rulings and in the absence of one people are left in grey areas.
You cited the correct statute; however, unfortunately, you are mistaken. A derivative work most certainly can be fair use. See Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994). The statute is a balancing of multiple factors. Based on weighing the different factors, the court decides if it is or is not fair use. Generally, Supreme Court cases have heavily focused on the fourth factor, “the effect of the use upon the potential market for, or value of, the copyrighted work,” in making a fair use determination.
Are you an attorney? We’ve been to court and won damages. So, yes, people can and do get sued for derivative works. And we didn’t have to go to the Supreme Court.
But back to my point. Anyone can use appropriate materials that teach them how to draw, as I mentioned above. That’s the best way to go. As far as needing the internet, there are freely available tutorials, some by working professionals, as I mentioned.
One of our finest cover artists was praised for the leaves in a painting he did. When asked how they could look so life-like, he told us that he went out, collected some in a box and got it right.
Copyright means right to copy. Fair use allows for educational uses.
Derivative works are protected by the Copyright Act. However, you are painting Fair Use too narrowly. Trust me, I just took IP law. Educational uses can be Fair Use but so can anything else. That’s like saying that self defense to murder applies only when you shot someone in your house. Education use is one way it is Fair Use but not the only way. “Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research.” “May” in statutory interpretation means the list is non-exhaustive, the Supreme Court has affirmed this. Thus, in multiple cases, uses outside of the list have been approved.
I do not doubt that you were able to get an award from someone who infringed on your copyright by making a derivative work. However, as the statute reads below the portion I have just quoted, there is a four part balancing test that courts apply in determining whether it is Fair Use or not. Generally, the first and the fourth factor listed in the statute are most important. Namely, “The effect of the use upon the potential market for, or value of, the copyrighted work” and “The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes.” Case law interprets that “including” to mean that these two factors (educational/commercial) are non-exhaustive in the purpose and character analysis. Courts use an imaginary scale to determine what is or is not Fair Use. Furthermore, Copyright isn’t something that the cops come and arrest you for. The person who owns the Copyright must decide if they wish to enforce their rights and then anyone can argue Fair Use as a defense.
More related to the OP, Fair Use is closely related to the First Amendment. It protects our freedom to express ourselves. Without Fair Use, we could be liable for the free flow of our thoughts and ideas. While I am not an attorney (just a law student) and this is not legal advice, what the OP is doing would almost certainly be considered Fair Use. The reason I posted this is not to give legal advice but to help the OP decide if it is a sin. The OP should not feel like he is sinning because his use is almost certainly Fair Use. If he tries to sell it or distribute his use in some way to the detriment of the Copyright holder, then that would tilt the scale towards it not being Fair Use. But, Fair Use is a balancing of factors, a putting of the pros and cons of the use on the scale. Given the use in question, I do not see how it could be a sin if the case law points to it being Fair Use.
After your law student days are over and you start work with a law firm, you’ll get to see some examples. Most of the incidents that we encounter never end up in court. Attorneys bill for everything. When we contact our attorney, we describe our problem, he advises us and it may end up with him writing a cease and desist letter. Going to court is expensive, time consuming and emotionally draining as well. We don’t want to waste money if we don’t have to.
I hope you aren’t thinking that the courts are the only answer. The general public is uninformed about copyright law. The OP’s question has several very good solutions as I mentioned.