The Legality of Fan Art

I am sure everyone of us have already encountered or seen a fan art. This is the type of artwork that is based   on a famous character or story. This is called a fan art because the artist is not the artist who actually created these famous characters. If you haven't seen one, you just need to type in "fan art" in your search engines and voila! you will be provided of more than a million samples of this art. But is it actually legal?

Before I answer that question, let me first define what is a derivative work. In layman's term, it is a new form of an already copyrighted work. There could be a hint of existence of some parts of the original work but it is considered as totally new. Examples of which are provided for by Section 173. 1 of the law on Copyright. It could either be an adaptation or a collection. Now lets go back to the previous posted question, is fan art illegal? It would depend on the purpose of such fan art. Section 185.1 of the Copyright Law provided requisites for it to be considered as a fair use of the copyright work and one of which is the purpose and the character of the use, which includes whether the use is of commercial nature or non-profit and educational in nature. This is related to another requisite which is the amount and substantiality of the portion used in the copyrighted work. Thus if the purpose is for commercialization of the fan art such as using it as t-shirt prints that will be marketed to the public then it is no longer fair use of the copyright. But if the fan art is just for private hobby of the person or just as personal collection then it could still fall under the category for fair use. 

To sum it up, the government and the law does not totally restrict the freedom of expression as it is one of the rights being protected by the Bill of Rights but we should also take note of the fair usage of the copyright so as not to incur any infringement.