Is Concept Art Fair Use?

dalekYesterday I talked about an awesome, but legally tricky bit of fan-work, the massive slowdown of pop-songs. Transformative, yes. Derivative, yes. Legal? No one knows.

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.

Plants vs. Zombies tribute

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 (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.

Inspirational Quote

“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


  1. GRRM’s particular views on fan art are different from his views on fan fiction. If you’ve ever visited his site, you’ll have noticed that he happily features fan art on his page. One of the artists that has been most involved in professional depictions of his characters and setting, Amoka, began as a fan artist who received GRRM’s encouragement and support.

    While some may feel there’s no moral or legal difference between fan art and fan fiction, obviously, Martin draws the line in a way that makes the most sense to him.

  2. Thank you Mr García, for providing a more nuanced vision of Mr Martin’s approach to fan work. I personally love his involvement with the Wild Card series, and though I find his approach to fan fiction disappointing, it is a legal issue without a test-case and his views as to its legality are as valid as anyone’s. As for morality, I think authors who are willing to talk about fan fiction at length do more for the debate than those who condemn (or support) it outright.

    Could you by any chance clarify Mr Martin’s motivations for differentiating between fan art and fan fiction? Is it that one is more transformative than the other (moving between mediums), or is it a gut feeling? Also, does he still support fan art which violates cannon? Perhaps fan art of Arya as a Disney princess, or of Jaime kissing Tyrion?

    Thank you for your comment, and in advance for your help. I will post an update to this post to correct my supposition that Mr Martin would consider fan art a violation of his copyright. I hope you are well,


  3. Jessica,

    To be honest, I can’t absolutely say for certain why he draws the line he does. If I had to guess, based what I know of him and from what discussions we’ve had on the subject, it’s that fiction is the area where he works. He’s delighted by visual depictions, perhaps in part because he’s not a visual artist. Others writing fiction, however, are treading on the ground which he’s marked out as his own and which he’d prefer be left to his hand. But this is a guess. I know all sorts of objections can be raised to this sort of viewpoint, and ultimately I suppose it comes down to just what feels right or wrong to him; it’s probably not a purely rational thing.

    I am certain that non-canonical depictions of characters, mash-ups and what have you, do not bother him as such. I believe he’s linked to some cartoony, humorous comic fan art which is reminiscent of South Park at one point. Now, the content of some of them might weird him out a bit (i.e. slash), and he might object on those grounds, though I’ve never heard of him doing so.

  4. Hi Mr García,

    Perfect! That was almost exactly what my friend Lilly (a director and author) said when I asked her to guess his motivations. As you’ve probably guessed, I see minimal social value in authors controlling what their fans write/dress-up-as/vid/draw when no money is involved. But I also absolutely understand the emotional drives which surround something so personal as one’s creation.

    Thank you again for your quick and detailed response, and I hope you have a great week,


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