Is selling fan art illegal?
Are fan art commissions of copyright characters illegal? The answer is, if you are creating fan art whether for profit or not, any copyrighted character or use of trademark in a description or title without prior written consent from the copyright owner, then selling fan art is illegal but making fan art is not illegal.
Confused? Then you can thank copyright law.
Keep reading to make sure you do not risk getting sued for millions.
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.
Keep reading if you need a deeper understanding of what is fan art, how to get permission to sell fan art, why is selling fan art illegal and the like.
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!
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This link Fan Art Ideas Hacks 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
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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?
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.
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…
If you wish to research further on Copyright Law, I have found Amazon has a lot to offer, feel free to click the links below – please note as an Amazon Associate I earn from qualifying purchases.Understanding Copyright Law, Seventh Edition (Understanding Series)
Copyright Law, Essential Cases and Materials (American Casebook Series)
Copyright (Examples & Explanations)
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.
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.)
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
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 so 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
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?
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Yes they are. 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. They currently do not allow fan art merchandise to be sold so be careful if you are intending on selling Among Us merch without permission. If you get caught selling Among Us merch they will send you a legal take down notice.
Yes, Original Pokemon sprites are just smaller versions of the same parent image of which they are based on. 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.