UPDATED 12/3/2022: Rights holders are starting to work with fan artists. Here is Teepublic’s Fan Art Program and here is Redbubble’s Fan Art Program. (I’ve used both myself.) This is an avenue to LEGALLY make and sell fan art of some properties.
UPDATED 4/18/2017: FUNimation released a very helpful statement about fan art and trademark, read it here.
DISCLAIMER: I don’t have a law degree nor can I give legal advice.
I like to make fan art sometimes. Maybe you do too. But, you might be wondering: is it legal? Is it morally questionable? Is it bad for your career? Is it copying someone’s work? Let’s take a deep dive into this incredibly thorny topic and answer these questions for ourselves.
What is Appropriation? What is Copying?
Artist Jason Levesque made a very good point in the fabulous Hyperallergic article When is Appropriation Just Copying. In essence, he pointed out that there’s a huge difference between what Andy Warhol did, which was appropriate “universally well-known images,” and what other artists do when they find a comparatively unknown artist or photographer and deeply appropriate their work, uncredited and unasked, for money and/or recognition.
Conversely, fan artists appropriate from widely known images. So it’s not surprising that people believe that fan art is automatically protected under parody and fair use. Other people assume that fan art sales are permissible if it’s not sold online, if very few sales are made, or if the fan art is only displayed and never sold. Unfortunately, none of these beliefs is true!
If you’re only interested in the legal aspect, here is the only thing you need to know about fan art and copyright law: for all works after 1923, only the intellectual property (IP) holder actually has the legal right to sell, show, or reproduce the original property. Only them. Until sometime after we are all dead.
Since this law is akin to a total abstinence policy, and those are notoriously ineffective, let’s look at how fan art works IN THE REAL WORLD.
Fan art and “The Playground”
In this amazing and informative presentation at San Diego ComiCon, deviantART’s senior advisor (and former Paramount copyright lawyer) Josh Wattles talks about what he calls “Rules of the Playground” as opposed to Copyright and Trademark Law. Rules of the playground fall into common sense and normal human behavior.
Wattles’ example is that one kid on the playground who decides he’s the only one who can be Batman. All the other kids beat him up for being a jerk, and even his parents scold him that he has to share and let Suzy be Batman too. Thus, everyone from the kid’s peers to his superiors, to us hearing the story, thinks he’s acting inappropriately.
The analogy here is obvious: flatly telling every person on Earth that they can’t draw Batman for the next 100 years is equally obnoxious and wouldn’t be tolerated by anyone in the real world. Ultimately, we draw Batman if we want to draw Batman and if someone calls us on the legality of it, we may even have some choice words for them. Why, then, is copyright law so different from common sense?
Simply put, copyright law is so stiff and penalties are so horrible because it needs to be that way to protect the original creator when someone threatens their trademark, poses a significant threat to their sales, causes confusion about their original creation, or harms them in some other way by illegally using their IP. If the laws weren’t so draconian, creators would have little recourse when they were being genuinely robbed.
What this means for fan artists is that every time they draw Batman (or any other IP they do not own) without permission, they are at the mercy of the IP holder. If the original creator decides to come after you, you very seldom have a defense. So why doesn’t this happen more often?
IP Holders all have different ideas about fan art.
Read the comments on Chris Oatley.com’s fan art blog post and you’ll see comic artists frankly discussing how fan art is frequently a path to hired industry work. In his aforementioned ComiCon panel, Wattles himself shows an example of copyright-infringing “porfolio art” and confirms that this is accepted and expected in the industry. In other words, it makes sense for comic companies to ask an aspiring inker or colorist to show examples of how they would draw Iron Man, if the artist is being hired to draw Iron Man.
Other IP holders, like FUNimation in their statement above, want to encourage fans to maintain a thriving community. They recognize that fan art and fan fiction are, in essence, free advertising, and so they give their implied consent to limited activities like Artist Alley sales. Viz Media regularly features fan art in Shonen Jump and has fan cover competitions. Their instagram occasionally shows fan art that was “too good not to repost!” This leeway helps the companies’ image far more than the infringement harms them.
Take caution, however. Even when a company seems to be giving its implied consent to use its IP’s in a limited way, they always hold the right to take away that consent. This happened with comic artist Sean Gordon Murphy when Marvel put a halt to the sale of his Wolverine ABC’s artist alley sketchbooks.
Sean is not unique. Many comic industry artists do artist alley sketchbooks and commissions as an additional revenue stream. In fact, the IP holders themselves sell blank-cover comic books for the very reason of having an artist draw their own, infringing (!!!) cover art instead. As with FUNimation and Viz Media above, the “Big Two” and other comic companies want their fans to have a healthy, strong relationship with their staff artists. But amidst all of this “looking the other way,” an IP holder still has the legal right to take action against anything they feel is crossing a line.
And they determine that line.
However, some IP holders have a problem with fan art being displayed or sold from the word go. They might be trying to launch a merchandise line of their own, or attempting to keep the next phase of their project under wraps. Someone coming along with fan art or fan merchandise that anticipates an upcoming project of the original creator can be disastrous for the IP holder and their wallet. In these cases, even the “unspoken rule” (that you can display fan art as long as you don’t sell it) doesn’t apply.
So how do you avoid harming the original creator? Or, for that matter, how do you avoid being made into the next Copyright Infringement whipping boy?
RESEARCH AND ASK PERMISSION.
The only safe way to even draw fan art, much less sell it, is to get the written permission of the IP holder to use their property. Failing that, getting their implied consent is a lot stronger than relying on Parody or Fair Use arguments, which are actually quite narrow.
Getting explicit or implied permission from the IP holder may sound like a hassle, but it’s actually a very good thing. There are a lot of reasons you want to ask for permission!
Foremost, getting permission is the only way to be sure you’re not harming the original creator, since they’ll let you know what is and is not okay. You may even end up forging a special relationship with them, a truly priceless asset in comparison to any profits you could make from unauthorized fan merchandise! You’ll also sleep easier, you won’t open yourself to certain criticisms and challenges to your integrity, and you’ll avoid settlements and fines.
If you’re still having a hard time getting all excited about sending out emails and searching for hours (or days) until you finally obtain a creator’s stance on showing and/or selling fan art, consider this:
When you make your fan art public, you are using someone else’s efforts to draw people to your work. They created characters loved by millions, worked their tail off to get their ideas published, then painstakingly updated and updated and worked and worked until they finally had a famous work of art or literature and a huge fanbase. Then with comparatively little effort (even if you put in days of work), you post a piece of fan art and get 1000 notes on tumblr, or sell out of your fan art prints at a convention on the first day.
In cases like these, no matter how great the fan art may be, it is the groundwork laid by the original creator that is responsible for the fan art’s success. Going to any convention will teach you soon enough that dreadful fan art of a successful franchise can outsell sublime original art any day of the week. A popular IP literally sells your fanart for you.
In plain business terms, this makes the original creator your business partner, whether they know it or not. If you want to use their hard work to make sales and gain followers, you owe it to them to ask permission or at least confirm you’re acting within their wishes. You might be surprised at the number of creators who are genuinely thrilled to be receiving free advertising in the form of fan art and even fan merchandise.
But if you call yourself a fan, you do need to find out how they feel.
Those folks you see on Etsy and Redbubble with a store full of fan merchandise are not acting like fans if they haven’t obtained consent for their activities. I’ve also seen speculation that stores like this steal other artist’s fan designs, implying that it’s easier to believe worse things about someone once you know they won’t balk at infringement. While it may be tempting to follow their example for a quick buck, keep in mind that part of running a good business is obtaining the appropriate licenses.
Back to Parody and Fair Use
Parody and Fair use often have a lot more to do with free speech and social commentary than they do with expressing your love as a fan. For that reason, most fan art doesn’t really fit into either category.
To be considered Parody, your fan art must use copyrighted work purely for the goal of commenting on that work. This commentary has to be obvious enough for the court to identify it, so the safest forms of parody are generally political or comedic.
As for Fair Use, proving this is exceedingly hard and court decisions on the matter may come off as largely arbitrary. It helps for something to be in a completely different form than the original work, and most fan art is in the exact same form as the original work or very similar. It helps for the work to be non-commercial, and any fan art you sell is certainly commercial. In short, Fair Use is not a defense you want to hang your hopes on, ever.
In addition to the potential of harming a creator you genuinely love and admire, and the daunting prospect of trying to defend fan art in an infringement case, there is one more reason to carefully choose your fan art activities.
The effect of fan art on the fan artist.
I’ve seen it referred to as a “Black Hole.” I mean artists who are highly talented in their own right, but have been sucked into a vicious cycle of doing fan art for the purpose of building followers and sales. Their own projects get lost in the clamor of fan requests, ever changing trends, and the sheer time and energy it takes to make high quality fan art and maintain stores and a strong convention presence.
Worse yet, “fandom” followers and buyers share virtually no overlap with “indie art” and “original art” followers and buyers. You can’t gain a lot of fans for your original project by only relying on the people who buy your fan art. You can’t even rely on fans of one franchise who love your work to buy something based on another franchise.
If you have your own story to tell, this is not where you want to be!
Why do we admire the original work in the first place? Because the creator(s) found a way to express an idea out of their mind that was so compelling that it obsessed us, made us lose sleep, made us evolve countless theories and make countless abortive little stories and scribbles and guesses based on that idea.
These ideas can be so great that we spend years and years thinking about them constantly. Communities grow up around them. People meet fellow fans, fall in love, have fan-themed weddings, and have kids which they teach about those special works they love so much. These original creators shared ideas that have shaped LIVES. Millions of lives.
Ask yourself this. Ultimately. Do you want to be known primarily as a fan of someone else? Or do you want to create something new like those people you’re obsessed with have created?
TO SUM UP:
If you love someone else’s creation and you’re a fellow creative person, chances are you’ll make your own spin on it at some point. I certainly have. Being a fan involves a genuine love and respect for the original creation, and as a fan you’ll need to ask permission or research the stance of the original creator if you want to take your fan creations public without hurting anybody. (Including you!)
Ultimately, it’s up to you to decide what you want to be known for.
“At law, a fan-created artwork that is clearly based on existing artwork owned by a copyright holder other than the fan (e.g. Funimation), is considered an unauthorized “derivative work” or an unauthorized reproduction (by substantial similarity) and therefore infringes the copyright holder’s rights under 17 U.S.C. § 106.
Despite Funimation‘s legal stance on this issue, Funimation appreciates the entertainment, education and skill that goes into and arises from the imitation and creation of works derived from existing works of popular manga and anime. Funimation likewise realizes that the “Artist Alley” area of most conventions can be a good showcase for these works and therefore Funimation tends not to enforce its copyright rights against those in Artist Alley who may be infringing Funimation‘s copyright rights.
Funimation‘s trademark rights, on the other hand, cannot go unenforced. This stems from a key distinction between U.S. Copyright Law and U.S. Trademark Law—in short, if copyright rights are not enforced, the copyright stays intact and the copyright holder generally will not suffer any harm beyond the infringement itself. But if trademark rights are not enforced, the trademark can be cancelled. Because of this difference, Funimation cannot knowingly tolerate unauthorized use of its trademarks, such as use of trademarks in conjunction with the display or sale of works whose creation is likewise unauthorized. This means that Funimation will take action if it or its agents discover unauthorized works, including fan art, which include a Funimation-owned/licensed trademark within the work or are on display in conjunction with signage bearing a Funimation-owned/licensed trademark. Note that the trademarks Funimation is primarily concerned with are brand names and logos.
As to the Dealer’s Room, Funimation strictly enforces both its copyright rights and trademark rights, almost without exception. This applies to works that are believed to be counterfeit, unlicensed or fan-created.”