The law and economics of literary-inspired fan art (part 1)

In our previous post we featured a beautiful canvas clutch bag by Olivia Le-Tan (pictured below, right) patterned after a previous edition of Ernest Hemingway’s popular novella “The Old Man and the Sea.” Olivia Le-Tan made a limited number of these beautiful Hemingway-inspired bags, and they are all sold out now, but I am still left wondering to what extent a Hemingway fan can create her own “Old Man and the Sea” fan art–whether it be a book cover, a wall tapestry, a graphic novel, or a book sculpture–or whether she needs permission from whoever (whomever?) owns the legal rights to Hemingway’s story to do so, especially if she plans on selling her Hemingway-inspired pieces to third parties.

Before proceeding any further, let me make an important clarification at the outset of this mini-research project. My focus here is on creative works of fan art that are based on someone else’s literary work product, whether it be a poem by Sylvia Plath or a short story by Junot Diaz or a novel by J. K. Rowling, just to name a few notable examples. Let’s stick with Olivia Le-Tan’s book clutch for now, since it features her own unique version of Hemingway’s book cover. By way of comparison, the cover illustration of the most recent paperback edition of “The Old Man and the Sea” (pictured below, middle) is by Alexandre Petrov, who directed a feature film with the same title in 1999, while the very first hardcover edition of Hemingway’s novella published by Charles Scribner’s Sons in 1952 contains a dust jacket (the book cover pictured below, right) that portrays a small fishing village, several skiffs along the shore, and an expanse of blue sea. I do not know who painted this sublime scene for the original edition, but the inside flap of the book’s dust jacket informs us that the cover was designed by “A.”

In either case–the 2003 paperback version or the 1952 hardcover one–, what happens when someone like Olivia Le-Tan adorns a book clutch with her own version of Hemingway’s book cover? Or when someone like Guy Harvey, a successful contemporary wildlife artist in his own right, creates an entire series of watercolors and oil paintings reimagining the characters and plot of Hemingway’s timeless story? Or when someone like Jodi Harvey-Brown buys old copies of the book and then creates a unique and beautiful book sculpture out of its pages? 

Well, it turns out that copyright laws not only apply to new works; these rules also protect “derivative works” as well. But this statement of black-letter law begs the key question, how far does this derivative protection extend? In particular, should the owner of the legal rights to a story retain an absolute or more limited set of “veto rights” over how the plot and the main characters of the story are visualized? Put another way, when does a derivative work, such as the sundry pieces and depictions described above–constitute “fair use”? Rest assured, we will explore this all-important fair use question in my next post …

Related image      Related image        Image result for who drew the cover of first edition of old man and the sea

About F. E. Guerra-Pujol

When I’m not blogging, I am a business law professor at the University of Central Florida.
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