Fan Art Increasingly Popular in Online Marketplaces

With the advent of the Internet, the presence of E-Commerce has begun to dominate marketplaces both domestically and abroad.  The rise and dominance of e-commerce giants such as Amazon, Alibaba, and E-Bay have made ordering online a breeze because consumers can often purchase products with one-click of a button. Less focused upon advantages that have come along with the Internet revolution is the ability for amateur artisans to peddle their wares online and reach a national, if not global, audience.  Website portals such as Etsy and DeviantArt have allowed consumers to commission and purchase products that are often considered “fan art” such as the “Beer Eye Chart” because the works of art are inspired by the artists’ favorite television series, comics, or book series.

When Does Fan Fiction Become Copyright Infringement?

While this practice, like fan-fiction, has generally been allowed because the costs of pursuing litigation is either too costly or would paint the companies in a negative light among their target audiences, the tides seem to be changing.  Fan-fiction is where fans of a certain book series, television series, etc., may take the same characters from the series but spin different tales about them. Previously, most brands would not pursue action against authors of fan-fiction because the fan-fiction would often increase brand awareness, promote positive views of the brand, and were often limited in the audience that they reached.  Fan-fiction was also often distributed free-of-charge among online fan groups or email lists.

Now, however, fan-created merchandise has created more complex issues.  A quick search among websites such as Etsy will return several results of goods for sale that are based upon or inspired by entertainment series.  The distinct difference between such merchandise and fan-fiction is that such merchandise is offered for sale and for mass distribution. For example, it is common to see crocheted products, coasters, stickers, etc., that include the likeness of reality television stars.  And it was only a matter of time before copyright infringement became an issue among such markets.

Lawsuit Claims Copyright Infringement of Beer Eye Chart Design

In the case at hand, designer Jan Davidson (“Davidson”) sued Etsy, a print-on-demand service known as Printful, Inc., as well as the specific Etsy seller for claims of alleged copyright infringement over the sale and distribution of t-shirts and mugs that have the “Beer Eye Chart” printed on them. While the Etsy seller may have simply been a fan of Davidson’s work and wanted to expand the scope of products that offered the “Beer Eye Chart,” the reprinting could also have been simply done for profit.  Only the courts can decide.  In filings, the lawsuit claims that the defendants profited unfairly and illegally from the Etsy seller’s unauthorized use of the “Beer Eye Chart” on multiple products.

Davidson herself has already registered the “Beer Eye Chart” with the U.S. Copyright Office and sells her designs on her own website, JanDavidson.com.  As such, Davidson argues that the wares being sold through Etsy are causing irreparable damage and loss of revenue.  Davidson is seeking both damages and an injunction to stop the defendants from selling and profiting off her design.

While this case focuses on infringement of a registered design, it will be interesting to see whether copyright infringement will become a more common charge against sellers who are creating works that do not copy a design wholesale but do profit off of the image, likeness, etc. of an already-existing work.  Fair use may ultimately end up being used as a defense against some of such charges but most likely cannot provide a safe harbor for all.

For more information on this topic, please visit our copyright protection service page, which is part of our Software & Copyrights Practice.

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