The fanart and other derivative works created by fans and shared on platforms such as TikTok and Instagram are becoming a significant component of digital culture. Fanart is a creation made by fans of a pre-existing work, such as series, movies, comics, games, or characters. These admirers draw on the original universe to create something new, such as an illustration, an aesthetic revamp, a modified recording, or an alternative narrative. This represents a way for fans to express their affection, going beyond passive consumption and actively engaging in the symbolic creation of content, reinterpreting and expanding it from their own perspective.
Although it has a creative and community-oriented character, Brazilian copyright law stipulates that any modification or adaptation of a protected work requires the authorization of the copyright holder. Therefore, all fanart is technically a derivative work that, in general, cannot be published without authorization. However, in practice, many companies and authors allow or even encourage its use, as they see the potential for engagement, loyalty, and spontaneous promotion. Fanart can function as a free marketing strategy, helping to keep characters and franchises culturally active and present in the collective consciousness.
However, this tolerance usually has defined limits. It is common for rights holders to act to restrict use when it begins to generate direct profit, such as in the sale of prints, personalized products, or video monetization, under the justification of unfair competition or undue economic exploitation. The focus of the debate is on differentiating between affective and cultural use, which strengthens the connection between fans and the work, and commercial use, which harms the legitimate market of the rights holder.
Unlike the more advanced discussions in American law on transformation and fair use, Brazilian legislation does not yet provide for a specific exception for fan art. For this reason, in Brazil, the solution has been developed on a case-by-case basis, taking into account the purpose of the creation, the level of originality, and its economic effect.
Thus, despite being socially accepted and culturally appreciated, fanart remains in an area of informal tolerance, normally seen as acceptable as long as it remains in a personal, non-profit context. The current challenge is to harmonize the protection of copyright with the participatory dynamics of digital culture, recognizing that the connection between fan and work is also a connection of collective creativity.
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Author: Isabela Nicolella Vendramelli, Thaís de Kássia R. Almeida Penteado and Cesar Peduti Filho, Peduti Advogados
Source:
https://br.lexlatin.com/opiniao/memes-e-propriedade-intelectual
https://www.planalto.gov.br/ccivil_03/leis/l9610.htmn
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If you want to learn more about this topic, contact the author or the managing partner, Dr. Cesar Peduti Filho.