Copyright and Creativity: How a Legal Gray Zone Fosters Art

By Bobby Miller

All art builds off of other art to some extent. The greatest writers find their voice by reading the works of others, the greatest painters develop their skills by analyzing other paintings and so on. However, things become problematic when somebody flat-out copies another person’s work. It is for this reason that copyright laws exist, to protect the rights of intellectual property holders. Yet, the line between copying someone else’s work and building off of it to create your own is not always clear. In fact, there have been a number of cases where questionable dodging of copyright laws has brought us amazing works. Ranging from fan art to video games and more, playing around in the gray zone of copyright laws has helped producers reach their full potential.

Fan Art and Fan Fiction: Spreading Creativity

As Terry Hart of Copyhype.com states, there are two kinds of copyright infringement, which she calls “consumptive” and “creative” infringement. Consumptive infringement basically involves piracy, reproducing or distributing copyrighted material. So downloading a song illegally would constitute consumptive infringement. Creative infringement, on the other hand, “involves the use of existing works, without permission, to create new works.” Fan art, of course, falls under the second category. It is work based on copyrighted material, but the copyright owner rarely gives explicit permission for it to be made.

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Credit: Stuart Miles freedigitalphotos.net

However, it is not considered illegal as long as it falls under “fair use.” Copyright.gov lists four factors that are considered when deciding whether or not a work falls under fair use:

-The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes.
-The nature of the copyrighted work.
-The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
-The effect of the use upon the potential market for, or value of, the copyrighted work.

Basically, a work is considered fair use as long as it’s not sold and does not have a negative effect on the copyrighted work’s profitability. The website admits, though, that “the distinction between what is fair use and what is infringement in a particular case will not always be clear or easily defined.”

According to Josh Wattles, the advisor in chief of deviantART.com, people who make fan art should be careful. Although a person is definitely safe “if it is a private activity,” he warns that “it’s not the best idea” to sell fan art. In this case, it would clearly violate fair use. Wattles goes on to note that copyright owners all have different attitudes toward fan art, so a particularly careful person would want to contact the owner before distributing fan art based on their work.

The same rules apply to fan fiction, which is a written piece based on copyrighted material. For instance, while author J. K. Rowling is fine with fan fiction, Anne Rice and Raymond Feist forbid it, according to BBC News.

“I can’t grant anyone the legal right to use copyrighted characters in fan fiction,” Rice commented. “It’s that simple.” She went on to say, “In my opinion, young, talented writers are better served when they develop their own characters and their own fictional worlds.”

However, as you can easily tell by browsing websites such as FanFiction.net and deviantART.com, fan art and fan fiction are distributed all over the Internet. Copyright holders generally take a relaxed attitude toward fan-created works. They recognize that, by allowing these works to spread, they are letting hype build up within the community of fans. This is also a good thing for fans who simply want to practice their creative skills while acknowledging their love for a certain work.

The website Etsy shows that copyright holders also take a surprisingly relaxed attitude toward fan-created merchandise. On the site, you can find goods based on Marvel comics, Harry Potter, My Little Pony, and countless other franchises. According to a post on the Etsy blog, all a copyright holder has to do is notify Etsy that a certain item on the site violates their “intellectual property right.” The entry claims that “Etsy treats all complaints seriously, whether the complaint is from a well known company, an individual, or from an Etsy member.” Given the number of products based on copyrighted franchises, it’s obvious that companies are taking little action against the website.

So, thanks to an attitude that values creativity over copyright laws, we have amazing fan fiction and fan art available online, some of it for purchase.

Mashup Music

According to Dictionary.com, a mashup refers to “a recording that combines vocal and instrumental tracks from two or more recordings.” Some artists, such as Girl Talk and Max Tannone, are known entirely for their audio manipulations.

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Gregg Michael Gillis, better known as Girl Talk

Since this involves taking at least two copyrighted works and mashing them together, copyright violation seems to be at work here. At worst, this sounds like outright copying someone else’s music and then profiting off of it. After all, Girl Talk’s record label is called Illegal Art. However, David Connaughton of the IP Policy Blog states that these songs may fall under fair use. In particular, they do not violate the most important factor considered behind fair use, which is how the piece influences the marketability of the copyrighted product. Just because you hear part of a song in another doesn’t mean that you wouldn’t want to buy the original song. In fact, a mashup might act as free advertisement for the original songs—surely many people would be curious to hear what the songs sounded like before they were mashed up. So, copyright holders get free advertisement while mashup artists are allowed to spread their creative works.

Video Games: Ms. Pac-Man and Guitar Hero

Questionable use of copyrighted material has also brought us “Ms. Pac-Man,” one of the most successful video games in history. Doug Macrae and Kevin Curran, two students of the Massachusetts Institute of Technology, started running their own arcade on campus around 1980. Inevitably, they found that, as some games aged, people began to master them and grow bored of them. To renew interest in these games, they produced their own enhancement kits to add new features.

According to Game Informer, “these circuit boards plugged into preexisting arcade cabinets, interrupting the original game’s programming and laying new code on top of an old game.” Eventually, Macrae and Curran attracted the attention of video game company Atari, which initially sued them for manipulating their games. However, recognizing their development talents, Atari dropped the lawsuits and hired the two young men, working with them rather than against them. This allowed them to gain more prominence in the gaming world.

Alongside their work at Atari, Macrae and Curran continued to make enhancement kits. In particular, they knew that an enhancement kit for “Pac-Man” would have lots of potential, so they eventually made one called “Crazy Otto.” In it, the titular main character looks like “Pac-Man” with legs, and the ghosts have been redesigned as well. Aside from the aesthetic changes, “Crazy Otto” improved on the original “Pac-Man” formula in important ways. This time around, the ghosts’ paths were less predictable, there were more mazes, and the point-earning fruit item moved throughout the maze.

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Now that they were professionals, Macrae and Curran were able to get into contact with Midway, the U.S. representative of Namco, the company behind “Pac-Man.” Midway also saw the value of working with the enhancement kits rather than against them. They changed the main character to “Ms. Pac-Man,” as we know her today, and kept the old style of ghosts. However, the other gameplay changes remained intact. With that, “‘Ms. Pac-Man’ released toward the end of 1981 and eventually went on to sell over 119,000 units, making it the most popular arcade game in history,” according to Game Informer. Again, we see a new and, in this case, improved product taking shape thanks to the use of other people’s material.

In this case, though, the original copyright holders ended up getting what they wanted— recognition. The situation is not always that pretty. You see, two games hit Japanese arcades in 1998, one called “Guitar Freaks” and the other “Drum Mania.” In “Guitar Freaks,” the player used a controller that looked like a guitar. It had colorful frets at the top. To play the game, icons of different colors would roll down the screen, and the player would have to strum the guitar while holding down the correct frets. The game could even be linked to “Drum Mania,” which, as you guessed, featured a drum set as its controller. That way, one person could play the lead guitar, another person could play bass, and another person could take care of the drums.

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Does this all sound familiar? Konami, the company behind the games, sure got a sense of déjà vu when the “Guitar Hero” and “Rock Band” series hit American shores. According to GameSpot, Konami sued Viacom, the parent company of Harmonix, which made the “Rock Band” series. According to the suit, “Rock Band violates a series of U.S. Patents registered in 2002 and 2003 relating to ‘simulated musical instruments’ and ‘musical rhythm-matching game[s].’” Ultimately, the two companies made an out-of-court settlement, the details of which are private.

According to Kotaku.com, Harmonix was inspired to make the first “Guitar Hero” because of “Guitar Freaks,” and “Guitar Hero” in turn inspired “Rock Band.” Here we see a series of games building off of one another to make an even better product.

As we have seen, creativity flourishes when copyright laws are not enforced with an iron fist. Thanks to questionable usage of copyrighted material, we have fan art, mashup music, and enhanced video games. This does not mean that deliberate copying should be tolerated. However, it should be recognized that being lenient with copyrights can allow other people to reach their full creative potential by standing on the shoulders of others.

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