Can you sell fan art and not get sued? Selling any fanart including fan art commissions of copyright characters is illegal if you do not have written permission from the copyright holder. In some cases you can use the doctrine of Fair Use if your fan art is highly transformative. So selling fan art can be illegal but making fan art for personal use or for a portfolio is not illegal.
Confused? Then you can thank copyright law.
Keep reading to make sure you do not risk getting sued for millions. In this post I will explain:
- how to use the Can I Use It? checklist to quickly determine if the fan art is copyright or free to use
- what is fan art
- the legalities of art and fan art
- what is copyright, fair use, trademark, the TEACH act
- how to sell fan art legally
- how to get permission to sell fan art and much much more.
In art and law there are many ways one can interpret the meaning and take their chances if they are ever pursued by the copyright owner for illegal fan art.
Disclaimer: I am not a lawyer, I have never practiced law and this opinion piece is not to be considered legal advice. If you require professional legal advice please contact a registered legal practitioner in your city or state who specializes in copyright law.
My first fan art commission as an artist was as an 8 year old. My classmates had paid me in chocolate to draw Marine Boy. An early anime Japanese cartoon from the 1960’s, Marine boy was about a little boy who could swim underwater. The cartoon had a revival in the 80’s when I was a kid.
Little did I know, I could have been sued by the copyright owners. Luckily I was just 6 and nobody apart from a few happy classmates knew I did the drawings.
Never did I ask myself “is it legal to sell fan art”“?
Pssst.. just quickly, if all you want to know is how to get permission to sell fan art then read my other post that goes into this topic in more detail – How To Get Permission to Sell Fan Art.
Otherwise, read on!
Need some Fan Art Ideas? I have the perfect Hacks and a listing from A-Z
This link for cool fan art ideas with awesome examples from A to Z will take you to another article where I describe in detail how I find unique fan art ideas.
Can I use it? Checklist
Feel free to share this infographic called Can I Use It? and provide a link back to this page. Thank you. It helps determine if you are breaking copyright law and if you can use another law to allow you to keep selling fan art legally.
What is Fan Art?
Fan art is any artwork on any medium (digital and physical products) that features characters or scenery not originally invented or created by the artist selling the artwork.
This can be art, novels, short stories, merchandise featuring well known comic book characters. Even game, movie and cartoon characters in new surroundings or even a complete copy of a known image reworked by the artist.
Fan Art Commissions have been around since way before Betty Boop appeared on the sides of World War 2 Bomber aircraft so why the concern now?
Sell Fan Art
Here, you’ll find tips and advice on how to sell your own fan art legally and effectively. Whether you’re new to this or an experienced artist, we’ll help you turn your passion for your favorite shows and characters into a successful venture selling your fan art legally.
What are Commissions?
In simple terms, commissions are when someone like a collector, art fan, someone wanting to give someone a gift of art, will seek an artist out and pay them to specifically create a work of art for them based on their specification.
The artist and buyer usually negotiate the price and terms such as what art work will be created. Commissioned art is typically a one-off piece and not available for re-sale unless the artist keeps the image rights for prints.
In the case of fan art, a buyer may engage an artist to create a unique work of art based on a popular character or scene from a movie, cartoon, popular item, cars etc.
One example would be when I would receive commissions for muscle cars from popular models and brands.
One day I received a notice requesting that I take down my drawings for sale of all my Chevy Camaro’s from the 1960’s.
I thought these would never be a problem, most of the cars I was drawing were from the 1960’s and 1970’s and were part of popular culture.
Chevrolet and GM did not make this request directly, they had hired an agency to track down anything for sale online that matched certain keywords.
If they are not licensed then they demand a take-down for breach of copyright or face legal action.
I did not have this problem with other GM brands such as Pontiac, Corvette or Holden nor did I have this problem with Ford.
Why Is Selling Fan Art illegal?
The main issue with selling fan art commissions is not only that they are illegal, it is that the creation of fan art can hurt the sales of officially sanctioned and licensed merchandise.
The illegal part is not paying royalties or asking permission.
Some art copyright owners allow a little room to move for fans to create art without demanding anything.
When a copyright image or trademark are used in a way not originally intended then this becomes an issue.
This could be swapping out words in a trademark with an offensive word but keeping the same design or portraying a wholesome cartoon character in a not so wholesome manner.
Some sites that let you upload art for sale such as Redbubble via their Fan Art Partner Program now have an agreement with a certain number of copyright holders to pay a royalty for fan art on behalf of the artist whenever a sale is made.
For more info visit redbubble.com/partner-program
The Legalities of Art and Fan Art
Art falls into one, possibly two of the categories of intellectual property. Art can fall into Copyright as well as Trademarks. The other two categories which art will typically not fall into are Trade Secrets and Patents.
What does Copyright mean?
According to Wiki which has drawn on primary sources of information: “The copyright law of the United States is intended to encourage the creation of art and culture by rewarding authors and artists with a set of exclusive rights. Copyright law grants authors and artists the exclusive right to make and sell copies of their works, the right to create derivative works, and the right to perform or display their works publicly. These exclusive rights are subject to a time limit, and generally expire 70 years after the author’s death. In the United States, any music composed before January 1, 1924, is generally considered public domain.”
So while an artist is alive or their estate is managing the rights up to 70 years after their death, you have many limits regarding the use of creating fan art. This 70 year period can also be extended, take the Disney corporation as an example. If the law was strictly black and white then will anyone be able to copy Mickey Mouse after the year 2024? Nope!
They will only be able to copy the first version of Mickey Mouse but not the later versions!
According to this arstechnica.com article; “The expiration of copyrights for characters like Mickey Mouse and Batman will raise tricky new legal questions. After 2024, Disney won’t have any copyright protection for Mickey’s original incarnation. But Disney will still own copyrights for later incarnations of the character—and it will also own Mickey-related trademarks.” Which leads us to…
Can Trademarks be used on images?
Once again, according to Wiki which has drawn on primary legal sources of information: “A trademark (also written trade mark or trade-mark) is a type of intellectual property consisting of a recognizable sign, design, or expression which identifies products or services of a particular source from those of others, although trademarks used to identify services are usually called service marks.The trademark owner can be an individual, business organization, or any legal entity. A trademark may be located on a package, a label, a voucher, or on the product itself. For the sake of corporate identity, trademarks are often displayed on company buildings. It is legally recognized as a type of intellectual property.”
What does trademark have to do with art? Well many people will accidently infringe on a trademark when they use trademarked words or logos in their description or in their art itself. Any logo like a Coke logo used in art is a no-no. The same applies if you use an X-Men logo on the chest of a character you drew.
Using Trademarks In Your Art Titles
As mentioned earlier, one of the areas where I was targeted was by a bot crawling the internet for specific keywords. The company using the crawler had come across my very specific keywords and without checking my art work, sent a demand to take down my art.
If I had not been so specific about what make and model car it was, I am sure I would have not received the take down notice. At the same time I am sure most buyers would never have come across my drawings without the proper key words.
While you need to be specific with your keywords in order to be found, be careful you are not stepping on trademarks when you register a domain or list an item for sale. The use of a trademark in your URL could even allow the trademark owner to take over your domain!
Fair Use – Is fan art fair use?
There is a doctrine in the USA and a version of this exists in most parts of the world to protect artists called Fair Use.
“Fair use is a doctrine in the law of the United States that permits limited use of copyrighted material without having to first acquire permission from the copyright holder.”
If you are just creating Fan Art and not selling Fan Art then you aren’t profiting from the sale of copyright images, because you are doing them solely to promote your skills and building a portfolio then your work would fall under Fair Use.
It’s listed below in the official government website covering copyright.
Additionally, there is a code of practice being put together specifically for artists and is accessible here https://www.collegeart.org/programs/caa-fair-use/best-practices.
Here is an extract:
..the right to make fair use of copyrighted materials is a key tool for the visual arts community, although its members may not always choose to take advantage of it. They may still seek copyright permissions, for instance, to maintain relationships, to reward someone deemed deserving, or to obtain access to material needed for their purposes. But, in certain other cases, including those described in the Code, they may choose instead to employ fair use of copyrighted material in order to accomplish their professional goals.
Where the law does sort of side with the artist is when the artists uses copyright material for inspiration or admiration and as long as it is not an exact copy, that is, the artist has made a substantial effort to draw inspiration from the artwork and not make a blatant copy then all should be well. The problem is, when you do this with fan art, the original art you are wanting to copy will bare very little resemblance to the original.
Many members of the visual arts community employ fair use in their professional practices and many do so regularly. For instance, scholars and their editors employ fair use in the context of analytic writing (for example, in using reproductions of copyrighted artworks and quotations). Teachers rely on it—along with other copyright exceptions—to show images of works being discussed during class sessions, and, even more heavily, to provide relevant images for student use outside class. In the museum context, fair use may be employed in exhibitions and publications, and in a range of digital and educational projects. Artists may employ fair use to build on preexisting works, engage with contemporary culture, or provide artistic, political, or social commentary. And the entire visual arts community benefits from fair use when it enables enhanced access to archival materials. These are only some of the most common ways in which fair use is central to visual arts practice.https://www.collegeart.org/programs/caa-fair-use/best-practices
So where does that leave you or me? Should you accept fan art commissions? I’ll answer that below.
What is the TEACH Act?
Under the TEACH Act:
• Instructors or teachers may use a wider range of works in distance learning environments.
• Students may participate in distance learning sessions from virtually any location.
• Participants enjoy greater latitude when it comes to storing, copying and digitizing materials.https://www.copyright.com/wp-content/uploads/2015/04/CR-Teach-Act.pdf
Are collages legal?
As most collages involve pasting images or texts from magazine or books or even images from other artists, this too can fall under the watchful legal eyes of someone looking to claim theft. In this post, I go over the question – Is collage art legal?
Among Us Fan Remake and Is Among Us Copyright Free
InnerSloth who created the Among Us game on which the Among Us characters are used for Fan Art own the copyright to Among Us characters. Previously they did not allow Among Us fanart but on a recent check of the InnerSloth website I found that they now allow fan art merchandise to be sold in non large quantities. If you are intending on selling Among Us merch on a large scale you still need to obtain written permission. So while Among Us are not copyright free, they are a bit more relaxed about copyright as long as the fan art is done in a tasteful manner.
Pokemon Copyright Permission
Pokemon is protected under both trademark and copyright law internationally and in the USA.
Yes, Nintendo characters are copyrighted but they do allow non-commercial use of their character for fan art. This was a curious question to answer as it seems Nintendo are actually ok with fan art and do not actively chase down or serve take down notices for fan art even if you sell it. Though they do pursue anyone creating games based on Nintendo characters.
Yes the players own what are called Image Rights and while these rights are designed to prevent their image or likeness to be used without their permission in advertising or merchandise it can extend to fan art. I highly doubt they will pursue artists selling player fan art unless it is a large scale operation.
Should I Risk Accepting Fan Art Commissions?
Personally, I still accept fan art commissions. And I do so knowing there are some risks if I manage to catch the attention of the copyright holders.
In most cases I will be told to take down my art or stop selling it. I usually do not charge enough to be a financial threat to the copyright holder and unless i’m making a substantial income from it I doubt I will ever end up in court. That said, I steer away from litigious copyright owners’ works.
I am not advocating that you break the law and I am in no way going to be responsible if you get sued. I gave my personal opinion and that is my risk to take and not yours. Do keep in mind that when I receive a request to take down an art work from a copyright owner, I do so right away.
(Even if you live outside of the USA, if the copyright holder is based in the USA or has an international trademark then they can still pursue you for loss of income or serve a take down.)
Comply with Requests From Copyright and Trademark Owners
So when (not if but when) you received a notification to take down any copyright or trademarked fan art, do not believe that you are too little to be sued or smarter than the lawyers of a mega corporation. The effort to fight the request is not worth it. Just take it down.
How To Sell Fan Art Legally
There are a few things you can do to sell fan art legally and not fall foul of the law.
- You can apply to the copyright owner for written permission or consent. The chances of this being granted to a small operator is very small.
- List your art for sale on a site such as Redbubble, who already have implemented the processes to collect royalties on your behalf for specific copyright owners.
- Or do what I do – I sell fan art in such small numbers that I stay below the radar. 20 years in, nobody has come for money.
If you want to learn what to do to get permission to sell fan art then have a look at my other post that goes into this topic in more detail – How To Get Permission to Sell Fan Art
Can I sell fan art prints?
First, it is important to make sure you are not infringing on any copyright laws. Selling fan art prints whether on your own website, at a fair or on Etsy is no different from selling fan art originals or fan art commissions.
Legal issues can arise if you reproduce copyrighted characters without the permission of the original artist or individual who holds the rights to the work.
Make sure that any art you produce is either completely your own creation, is highly transformative so that you satisfy the doctrine of Fair Use or that you have obtained the necessary permissions for printing and selling reproductions of existing artwork.
Second, since you’re dealing with someone else’s origional work, it’s important to understand what kind of print quality expectations buyers may have when purchasing from you.
If you are self printing at home then you should consider investing in high-quality paper, printer and ink so that colors will remain vibrant and true to life over time.
A matte finish is often preferable as it tends to look less glossy than a glossy finish – which can cause glare when looking at the artwork in person. Additionally, try using archival-grade products (such as acid-free paper) in order to avoid discoloration or fading over time.
If you are using a print on demand (POD) service then ensure you are using a reputable company that produces good quality art prints.
Finally, remember that even if you don’t infringe on anyone’s copyright there may still be legal ramifications if your artwork could be confused with that of an existing official product by its buyer (i.e., people may think they’re buying something endorsed by a company or designer).
Taking extra steps such as putting disclaimers on all your packaging materials or adding “unofficial” details in descriptions on your website can help mitigate this potential confusion and reduce potential risks for yourself.
Selling fan art requires consideration of both ethical and legal implications but when done correctly it can be an exciting way to earn additional income from your artwork.
Can you sell fan art NFT?
The sale of fan art NFTs is a pretty new and evolving area, and the regulations around it vary by jurisdiction from country to country. It is advisable to consult with a lawyer or intellectual property specialist to understand the legal implications before selling fan art as NFTs.
That said, the legality of creating and selling fan art NFTs can vary depending on a variety of factors, including:
- the specific fan art in question (is it free from copyright, is the copyright holder lax with enforcing copyright)
- the jurisdiction in which the NFT is being sold (as you are aware not all countries are signatories to enforce copyright and trademarks),
- and the terms of service of the platform on which the NFT is being sold – where the platform may not pursue or follow up with copyright holders requests to take down a fan art NFT for sale.
In general, fan art often involves using copyrighted materials without permission, which can lead to legal issues. However, some jurisdictions have “fair use” exceptions that may allow for certain uses of copyrighted materials in fan art.
My tip would be to perform a search on the platform you intend on selling your fan art NFT and look for their policy on copyright and also see if similar artworks are being sold on there. If they are, then chances are you can probably get away with selling fan art NFTs for a while.
Can you sell fan art of anime?
The sale of fan art of anime can be a legally complicated issue. Anime often involves copyrighted characters, settings, and other materials, which means that creating and selling fan art of anime could potentially infringe on the owner’s copyright.
However, some jurisdictions have “fair use” exceptions that may allow for certain uses of copyrighted materials in fan art. Additionally, some anime companies may have specific policies regarding fan art, which could allow for the creation and sale of fan art under certain conditions.
My tip would be to visit the website of the anime character(s) you wish to create and sell fan art of and see what their policy is.
Chances are they will be in Japanese and be aimed at the local domestic market and laws so I would refer to not get carried away and to test the waters by selling small batches of fan art of anime.
What kind of fan art is legal?
Whether a specific type of fan art is legal can depend on various factors, including the specific fan art in question, the jurisdiction in which it is being created or sold, and the terms of service of the platform on which it is being shared or sold.
In general, fan art that makes use of copyrighted materials without permission from the copyright owner could potentially be considered illegal. However, some jurisdictions have “fair use” exceptions that may allow for certain uses of copyrighted materials in fan art. For example, fan art that is transformative and adds new meaning or commentary to the original work may be more likely to be considered legal under fair use. Yay!
Additionally, some fan art may fall under the category of “derivative works,” which may require permission from the original copyright owner to be created or sold but do not require permission to be made.
Ultimately, whether a specific type of fan art is legal can be a complex issue. It is advisable to consult with a lawyer or intellectual property specialist to understand the legal implications of creating or selling fan art. In almost all cases, as long as you are not making money (or large sums of it) from the sale of fan art, or it is for a portfolio, it can be considered legal.
Can I put fan art in my portfolio?
Including fan art in your portfolio can be a controversial topic as it might involve using copyrighted materials without permission from the copyright owner or worse, you are including fan art based on someone else’s fan art!
However, some artists and designers do like to include fan art in their portfolios to showcase their skills and creativity as it can give whoever is reviewing the portfolio a well-known reference point to show how good (or bad) the artist is compared to others.
If you are including fan art in your portfolio it is important to make it clear that the artwork is a fan creation and not an official product of the copyright owner.
You should also consider whether the inclusion of fan art could potentially damage your reputation or credibility as a professional or if that style of artwork is frown upon or seen as low brow by either the company or educational establishment.
Who owns the copyright to fan art?
So you have made a highly transformative or derivative piece of fan art. Who owns the copyright to fan art?
In most cases, the copyright for fan art would belong to the creator of the fan art (under the United States Copyright Act under 17 U.S.C. § 106), even if the fan art is highly transformative or derivative. However, it is important to note that the fan art may still potentially infringe on the copyright of the original work, depending on the specific circumstances.
The copyright of the original work would still be owned by the creator or owner of that work, and the creator of the fan art would not have the right to exploit or profit from the original work without permission.
Joseph Colella (Joe Colella) is an Editor and Writer at WastedTalentInc. As a frustrated artist with over 40 years experience making art (who moonlights as a certified Business Analyst with over 20 years of experience in tech). While Joseph holds a Diploma in Information Technology, in true wasted talent fashion he spent years applying for various Art degrees; from the Accademia di Belle Arti (Napoli), to failing to get into the Bachelor of Arts (Fine Arts) at the University of Western Sydney. While he jokes about his failures at gaining formal art qualifications, as a self-taught artist he has had a fruitful career in business, technology and the arts. His goal is to attend the Julian Ashton School of Art at The Rocks Sydney when he retires from full time work. Joseph’s art has been sold to private collectors all over the world from the USA, Europe and Australasia. He is a trusted source for reliable art advice and tutorials to copyright/fair use advice and is committed to helping his readers make informed decisions about making them a better artist.
He also loves all things watches (ok it’s an addiction) so show him some love and visit his other website https://expertdivewatch.com