Commons:ファンアート

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このハリー・ポッターのファンアート画像は、本の表紙の絵、映画、あるいはコンピュータゲームで当該キャラクターを具現化した何らかの作品からいかなる形でも派生したものには見えず、コモンズで許容されるものです。下のハリー・ポッターの架空世界による例示を参照してください。

ファンアートとは、オリジナルのフィクション作品の要素やキャラクターを、非公式の芸術作品としたもので、通例、アマチュアのファンが自身の楽しみのために制作したものをいいます。ファンアートは、オリジナル作品に係る知的財産権の所有者でも、許諾されたライセンシーでもない人が作ります。一般にファンアートの対象となるフィクション作品は、人気のある書籍、漫画、劇画、映画、テレビ番組、コンピュータゲームなどです。

ファンアートは法的な地雷原であり、このページができるのはある程度の一般的な案内までです。それぞれのファンアートは、個別に、是々非々で検討する必要があります。

はじめに

権利者（著者からフィクション作品の権利を購入した映画会社のような会社であることが普通です）は一般に、自社の商業的利益を保護するため有効な複数の知的財産権を持っています。それには通常、あらゆる映画、テレビ番組、コンピュータゲーム、漫画、写真等の美術の著作権と、それらに対応する小説などの文字作品から生ずる文学の著作権が含まれます。また権利者はしばしば、商標権、著作者人格権、その他一部の国において無許可の複製を防ぐための諸々の権利を保持します。コモン・ロー諸国には詐欺通用（パッシング・オフ）の法があり、大陸法諸国にも不正競争を規制する法令があります。

これらの権利を総合すれば知的財産権を尊重するほとんどの国において強力なものとなり、結果として、フィクション原作の要素やキャラクターをコピーしようとすることは、商業的な競争者にとっては極めて馬鹿げた行為になります。

コモンズでのファンアート

コモンズにファンアートはあるべきですか？ それは独自研究では？

コモンズはウィキペディアではありませんし、アップロードされるファイルは、WMFのウィキペディアサイトの多くで課される{{w:ja:WP:NOR|独自研究をしない}}という要件を満たす必要がありません。確かにウィキペディアのサイトによっては元の作品は掲載不可であり、その場合もコモンズの目標とするコンテンツの収載はそれらサイトへの掲出に限定されません。

ただし、私たちのプロジェクトの守備範囲では、コモンズに投稿されるファイルは、教育的目的のために現実的に有益でなければなりません。「教育的」という表現は、「知識を提供する」「手順を示す」「情報を与える」のような広い意味で解釈してください。個人的な関心だけによる画像のコレクション、上記のような教育的な目的を欠いた自作の画像、そして既存の画像との教育的な差異をなんら見いだせない低品質の画像は、それらが自由なライセンスのもとに公開されていても、削除されることがあります。例えばトランブルの「独立の宣言」の中にアンクル・サムを書き込んだオリジナル作品は、誰の著作権も侵害せず、またその作者によって適切にライセンスされたとしても、現実的に教育的な目的を有するとは言いがたいものです。一方、このハリー・ポッターの画像は、複数のウィキで使用されている事実からも明らかなように、教育的に有益なものです。

Commons is not a free web host, and we cannot accept collections of original art whose purpose is merely to showcase the talents of the artist (unless the artist is a notable figure in which case we will host them).

全般的なルール

So far as Commons is concerned, we will host fan art provided that:

• It is realistically useful for an educational purpose, as required by our project scope (note that "self-created artwork without obvious educational use" is specifically excluded);
• It does not breach any copyright owned by the rights owner; and
• It has been released by the fan art creator under a permitted free licence.

Note that the fan art creator must release the fan art under a free licence that allows commercial use. Provided that the fan art does not infringe any copyrights of the rights owner, it does not matter that the rights owner may have additional rights in some countries to restrain re-use such as trademark protection, or the law of passing off or unfair competition. Such non-copyright restrictions that affect only the re-users of our content can normally be ignored when considering whether a file may be hosted here.

ファンアートはフェアユースになりえますか？

Sometimes, yes, but that is of no assistance here since Commons never accepts fair use uploads.

具体的な検討

As explained in more detail below, certain types of fan art are in principle allowed provided they do not copy any creative element of the original work of fiction. However, in practice it is often very difficult to tell whether the fan art has been made by copying, or whether it is an independent work of art which merely shares with the original work of fiction some basic non-copyrightable aspects or features. This is where common sense and judgement have to be applied.

Without wishing to denigrate the skill of any individual artist, experience teaches that many creators of fan art find it easier to copy than to create wholly original works of their own. Images that at first sight appear original are often found on investigation to have been copied from, say, a copyrighted representation of a character in a movie or a computer game. For that reason, all fan art uploaded to Commons should be evaluated critically. It may be relevant to consider the apparent skill of the artist and whether any other uploads can be shown to have been copied from a known source. Where there is real doubt the precautionary principle should be applied and the image deleted.

{{Fan art}} の使用

Where a fan art file is eligible to be hosted on Commons, please consider tagging it with the {{Fan art}} template. This warns re-users of the file that the rights owner may in some countries have additional non-copyright protections which may restrict the file’s re-use. The template is a warning and not a copyright tag, and use of the tag has no bearing on whether or not the file is allowed to be hosted here.

ファンアートの著作権

実際問題として権利者は原フィクション作品の世界に属するあらゆるキャラクターや要素を商業目的で再利用しようとする行為を止める権利を十分に持っていますが、著作権のみを考えるときは、保護が及ぶ範囲は狭くなります。

描き直しでは著作権侵害を回避できません

It is important to understand that you do not avoid copyright infringement merely by re-drawing an existing copyright work, even if you introduce artistic additions or embellishments of your own. For example, if you redraw the map illustrations depicted in the novel The Lord of the Rings you infringe their copyright just as certainly as if you had photocopied them. You will also infringe the copyright in a movie if you copy creative elements or characters from the story in a manner similar to the way in which those elements or characters are presented on screen.

物理的な所有によって許可は与えられません

The fact that you may physically own a DVD, computer game or comic book does not provide you with any authorisation to create your own fan art copied from what is shown. Ownership of the physical article may rest with you, but ownership of the copyright does not. Whether or not such articles are explicitly labelled as copyright-protected is irrelevant.

アイデアに著作権はありません

There is no copyright in an idea, in this case the combination of a bullwhip and hat. The fact that most viewers will recognise the allusion to the fictional character Indiana Jones does not matter.

The title above is a gross oversimplification, but generally there is no copyright in an abstract idea or concept as such. Copyright is not a monopoly right that protects each and every type of creative content, even at the highest conceptual level; it simply restricts copying of the specific realization that the author has used, in words, images or sound. US courts distinguish between an uncopyrightable "idea" and a copyrightable "expression".

Thus, in order to establish a copyright violation the copyright owner has to be able to point to some original and creative specific realization (or expression) that has been copied, either directly or indirectly, exactly or inexactly, and either with or without additional artistic embellishments. The specific realization is typically some graphic work such as an illustration in a book, or a visual representation in a movie or computer game.

The difficulty, of course, is to decide what level of generalization is considered to be a non-copyrightable abstract idea, and what a copyrightable specific realization. The courts have much trouble with this, and there is no “bright line” rule that provides an easy answer.

Where the specific realization is an illustration or a depiction of a creative graphic element within a movie, comic book, computer game or the like, copyright will typically be infringed if the fan art drawing has copied that original creative element.

文学の著作権

The legal situation can get much more complicated where the fan art drawing is a representation based solely on the descriptive text of a literary work such as a novel. Although the novel's author will have literary copyright in the actual words used, the US courts, in particular, have been rather reluctant to uphold broad copyright protection for characters within the novel. Although literary characters are clearly creative, they are often seen by the courts as being no more than abstract ideas that are too generic to attract independent copyright protection.

US case law is not consistent, but it is clear that "the less developed the characters the less they can be copyrighted; that is the penalty an author must bear for making them too indistinct". In order to warrant copyright protection, a literary character must be both "specifically described" and "distinctively delineated" (or "fully developed"). Other cases have granted protection only to a character within a work who constitutes the “story being told”

The courts have refused protection for characters that are of no more than a particular "character type". Similarly, the courts will not grant protection where the material copied is standard or common to the particular subject or topic. Thus, a stereotypical fictional character, unless one copied the exact word portrait of that character, is not likely to be copyright protected. For example, it is unlikely that a court would uphold infringement of the text of a mystery novel based on the fact that both the original character and the alleged copy smoked a cigar and spoke with a New York accent. It is likely that the court would hold both of these characteristics to be standard or common to the mystery genre.

The courts in England have been even more reluctant to accept character copyrights based on literary works, and the general view is that English law does not recognise the concept of copyright in literary fictional characters at all.

In practice literary copyright is not in any event typically of great importance, since most fan art is based on characters that are known in graphic form from spin-offs such as movies, comic books or computer games. Where a novel has become popular enough to generate commercial spin-offs, it is the graphic representations that are more likely to have been copied than the original literary description.

名前に著作権はありません

There can normally be no copyright in a mere name, e.g. "Harry Potter", even if that name is an author's own creation: names are in themselves usually too trivial for copyright protection. Of course, the phrase "Harry Potter" is protected as a registered trademark in many countries, which will prevent most types of commercial re-use, but trademark protection is not a bar to an image being hosted an Commons, as its retention on a WMF server will in itself typically not infringe any trademark rights.

単なる引喩に著作権は及びません

An original fan art image that does no more than refer to the original work is not a copyright infringement, provided that no original creative element has been taken. The fact that the title of an image makes it clear who or what it is intended to show is not, in itself, problematic.

既存のどこにでもある要素に著作権はありません

An allowable fan art image that consists of a commonplace element (two books) plus a non-copyrightable mere allusion to Harry Potter.

Where the work of fiction makes use of commonplace pre-existing elements, taking one of those elements and imaginatively recreating it as an original work of fan art does not infringe any copyright, even if the recreation would clearly be understood to relate to the fictional universe created by the original author. The original author can have no copyright in a commonplace pre-existing element, as such, since the element was not itself generated by the author’s creativity.

You can draw a picture of an Aston Martin without it being subject to the copyright of the James Bond movies, but the Batmobile from Batman Returns is an original creation and fan art of it would infringe the movie's original copyright.

俳優の似顔絵に著作権はあるか

Movie-derived fan art often includes drawings of an actor in character. There is no copyright in an individual’s likeness, e.g. in their natural facial features, and if the fan art drawing is a wholly new creative representation showing the actor’s natural likeness plus some non-creative allusion to the original work, it can be accepted. However, it is a copyright violation to copy creative elements from the movie, and many fan art drawings will fail on that basis. A drawing that closely replicates what is shown in the movie will infringe the movie copyright in the same way as would a photograph directly taken from the screen.

著作権期限切れとフリーライセンス

Fan art depicting public domain characters is allowed on Commons

Fan art which depicts material that is in the public domain or which has been released under a permissible free license by the original rights owner is allowed. Note, however, that the original work the character appears in must be public domain or freely licensed in order for derivative representations of the character to be free.

• See also Commons:Character

風景の自由

Photographs which fall under freedom of panorama of the country in which they are taken are allowed. If a sculpture of the Batmobile from Batman Returns were permanently installed in a public park in, say, the UK, then a photograph of it would not infringe any copyright, and neither would a drawing copied directly from that photograph. However, that does not mean that all representations of the Batmobile thereby become free; only those that are based solely on the photograph to which Freedom of Panorama applies.

The rules differ from country to country. Note that the freedom to photograph works of creative art, such as sculptures, which are permanently located in a public place does not apply in the US.

ハリー・ポッターの世界観と参考例

これが創作物であるHarry Potterの正しく描写する方法です。

• 眼鏡をかけた黒髮の少年のイラスト。一般的な少年の絵で書籍の表紙画や映画またはコンピューターゲームに含まれる具体的な実現を複写したものではない限りにおいて、どこにでもある既存の要素として認められます。

• A drawing of a boy with black hair and glasses labelled “Harry Potter”. Allowed under the same conditions as above. The mere addition of the words “Harry Potter” do not turn a generic representation into an infringing copy. There is no copyright in a mere allusion.

• A drawing of a boy in a wizard hat and robes, whether or not labelled “Harry Potter”. Allowed as a pre-existing commonplace element, provided it is a drawing of a generic boy wizard, and does not copy the specific realizations of the book cover illustrations, the movies, or the computer games.

• A drawing of a boy with black hair and glasses, with a zig-zag scar on his forehead, whether or not labelled “Harry Potter”. Here, the combination of features taken may be unique to the character in JK Rowling's novels, but such a combination is in itself likely to be considered an uncopyrightable idea in the US courts. Also, as stated above, the English courts do not recognise the concept of copyright in a literary character at all. This should therefore be allowed, provided it does not copy the specific realizations of the book cover illustrations, the movies, or the computer games. However, drawings with this much JK Rowling detail or more should be reviewed carefully to ensure that they are not actually copied from a screen representation. If there is doubt the precautionary principle should be applied.

• A drawing of Daniel Radcliffe, whether or not labelled “Harry Potter”. Allowed only if a wholly new and original drawing of the actor which is not copied in any way from an existing copyright work such as a photograph or the specific representation in the movies. There is no copyright in an actor’s likeness.

• A drawing of Daniel Radcliffe in a wizard hat and robes, whether or not labelled “Harry Potter”. This is more difficult. In principle this is allowable provided it is wholly new and original and does not copy in any way any specific realization of the movies. However, in practice such a drawing is more likely to have been copied from the screen representation than to be wholly original. If there is doubt the precautionary principle should be applied.

• A photo of a boy with black hair and glasses, with a zig-zag scar on his forehead, in a wizard hat and robes, parts of which came in a Halloween licensed costume labeled “Harry Potter”. Costumes are a complex issue. See Copyright rules: Costumes and cosplay.

著作権以外の制限と再使用

The manner in which an image is reused is of great importance in practice, even where there may be no copyright problem. If you create a new and original drawing of a black-haired boy with glasses, and label it "Harry Potter" you should be OK so far as copyright is concerned, and such a generic drawing can if suitably educational be hosted here. Non-copyright restrictions on reuse are not normally a bar to a file being hosted here, unless they are restrictions which would make it unlawful for the WMF to act as the host under US law.

But re-use of such an image may be much more difficult. If for example you use the fan art drawing as the basis for a commercial computer game of your own, or use it as a cover illustration for your book, you will be in deep trouble. In the UK, US and other Common-law countries, you may be committing the tort of passing off by putting into the marketplace articles which might well be bought by unsuspecting purchasers who incorrectly think you are associated with J.K. Rowling in some way, e.g. that you have been licensed by her or her company. In France and other Civil-law countries you may fall foul of a variety of unfair competition laws.

You might also have to worry about libel, especially if your drawing could be considered derogatory and damaging to J.K. Rowling's reputation.

As always, as a downloader and re-user of our content, it is your responsibility to satisfy yourself that any use you make of one of our files is acceptable under your own national law; see Commons:ウィキメディア内のコンテンツを外部で再利用する.