Now, if running Justin Bieber’s “U Smile” through a slow-down machine is a transformative work on the low amount of transforming-author labor, concept art is on the high, high end. For example, Xavier Garcia’s concept art of George R.R. Martin’s Westeros characters represents a significant time investment (hat-tip to io9).
Using the theory of copyright that authors gain permanent rights over their outputs because of their input of labor, how do Mr Garcia’s and Mr Martin’s rights interact? Though I see copyright as a state-granted, temporary monopoly given to authors for as long as (and no longer than) it takes to encourage them to make more, this romantic conception of the author is popular in some fields and dominates many of Europe’s intellectual property rules.
Let’s trace the chain of derivation. Xavier Garcia’s fan art draw from Westeros, the world of George R.R. Martin’s A Song of Ice and Fire series. That series could be seen as a realist’s reaction to romantic Tolkeinism, a cannon which freely appropriates Norse and Greek myths, which are themselves a representation of the supra-cultural mono-myth. So the chain of derivation would look like this:
Mono-myth –> Norse/Greek Myths –> Tolkein –> George R.R. Martin –> Xavier Garcia
So who owes what to whom? Martin’s gleeful trope-busting would not be as powerful if he could not rely on his readers’ awareness of Tolkein and his fantasy genre. And all of these draw from the mono-myth. It seems like all writers ladle what they want out of the communal caldron, and drops what they make back in when they’re done.
More practically, because Martin was only desecrating Tolkein’s sandbox and not using the names of his characters or worlds, he legally owes him nothing. One might hope, but knowing Martin doubt*, that Garcia’s transformative, fannish, non-commercial work would be protected from copyright claims. The trouble is, because Garcia is honest about his use of Martin’s characters, his work is living in the ugly grey land of legal uncertainty in which most fan creation reside.
*Update: the webmaster of Westeros.org (a fansite for A Song of Ice and Fire with webmasters connected to Martin) kindly (and quickly) commented that Martin often supports fan art, features it on his website, and is currently in a professional illustrating relationship with someone who started as a fan artist.
While it is good to clarify Martin’s particular views (and I apologize for assuming his positions on fan work were monolith), whether concept art is fair use in general is legally unclear. This lack of clarity forces fans to create in a state of legal limbo, unsure of their standing and scared of the very creator they admire discovering their work, disliking it, and using copyright to censor their visions of his/her characters and world. This fear and legal limbo are why I am researching in this field.
“A song has a few rights the same as ordinary citizens… if it happens to feel like flying where humans cannot fly… to scale mountains that are not there, who shall stop it?”–Charles Ives