Legality on creating work for portfolio based on already existing IPs
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Hello, was wondering if anyone has experience or has the knowledge on if it's generally ok to create work based off of an already existing IP. Say for instance I wanted to do a remaster of a level from a really old game and use that in my portfolio. Would that be accepted so long as I'm not selling it or distributing it, etc?
Replies
Existing artists have done similar things, like fan art of comic book caharacters. As long as it's derivative, you're fine.
also creating something based on anothers IP then giving it away for free and competing with the copyright holders product usually gets hit hard.
Basically these are the things to keep in mind:
- You are not allowed to distribute anything that isn't your own. Any kind of re-work, change, re-interpretation, or whatever thing you do with it still needs the consense of anyone who has the copyrights/distribution rights. (But neither he/she would be allowed to use your piece without your consent).
- You are allowed to create copies for private usage - again in whatever form you want. So if you do a painting based on a song, you can, same if you re-enact Lord of the Rings in your backyard - woohoo! Go for it! The key words here are 'private usage'! This means you are doing it for yourself! Not your friends, not your potential collegues, not for the hot chick you want to impress. As soon as it excedes whatever the court sees as 'private space' your are distributing it and thus infringing copyrights. For example playing a song at a wedding - is a performance that isn't private - calling your friends to watch a movie at your appartment - if you know them all REALLY REALLY well, then maaayybe private, but rather not (yeah, depends on the judge and his mood...).
That's all you need to know. Except people are doing fan art and getting away with it. I know. Still they are most of the time are infringing copyrights (only few will be really asking for permissions before doing it and having something to show for). So how is it possible?
Answer is simple - with 2 possible reasons:
- They have not been caught. Really. Like any other crime - without anyone sueing there is no judge and judgement. Still it is technically not legal.
- The copyright owner doesn't care or even encourages fan art for different reasons - free marketing or a chance to let people practice art they later can recruit. In this cases there is a consent though not directly given to anyone in specific. Here you have most fan art. But still - if the owner says 'No! Take that thing down and you are not allowed to reproduce it or show it to anyone (except for private usage)' you have to abide, meaning showing it even as a part of your portfolio is an infringement.
To sum it up:
I guess in most cases if you are putting in just in your portfolio and not selling it, the IP-owner will be OK with it and if he noticies it and doesn't protest after a while you are even allowed to keep using it in your portfolio. Also copyright cases can be very expensive and not worth the trouble, so maybe the IP-owner simply doesn't care. But if he/she does, you better not protest and be as cooperative as you can to not end up with a large bill that you need to pay their lawyers.
Yet again - in most cases it won't be an issue, especially if you say it is fan art since it will be seen as marketing for the company, while sueing fans will quickly gain you a bad reputation (see Gamesworkshop and their relationship with fans, no matter how justified the legal actions were). It would be still bad advice and risky to hold on to the fair use argument if a company reaches out to you.
but how about this
Taking down a free fan artwork or free fan game (or sometimes paid ones) gets the company a lot of negative publicity,
So the company has to evaluate whether the gain of taking down the artwork(to some very um.. special companies fan art "devalues" the brand) is worth the PR Nightmare it has to deal with
Thank you for the longer post! That one's most likely more precise.
Putting pictures of created fan art in your portfolio is generally accepted in the art community and most recruiters/art or team leads/fellow artists who might be looking at your portfolio aren't going to give a shit because they don't own the IP anyway. That being said, you should be prepared to take down anything in your portfolio you don't own outright (IP rights included) if the IP/license holder happens to notice and wants you to remove the content.
Shorter answer:
Do what you want, just be prepared to take it down if it causes a fuss - unlikely though that may be.
A. Getting a take down notice would kill your entire portfolio
B. Other developers might be hesitant to hire you because it looks like your dream job is at that other developer.
C. Even if you apply at that developer/publisher, it shows a lack of diversity, they might be going in another direction in a future project, and it may come off as creepy or desperate, or unoriginal.