Can You Sell Fanart and Not Get Sued? My Lawyer Got The Answers!
The simple answer is yes, you can sell fan art and not get sued but there are a few things need to be aware of a few things before you do so.
You can sell fanart privately as a commission and you can sell fanart publicly on a public website or blog.
The best way to sell fanart and not get sued is to advertise your ability to accept commissions for fanart and not specify exactly what fan art you can do, and list some past examples of fanart you have made (but not sold).
This way you are not listing fanart for sale, you are listing the service to create fanart which is not illegal in any country or state.
Selling fanart privately or as a commission
Selling fanart privately or as a commission is much easier to get away with.
The artist is not as likely to be found out and can avoid any potential legal issues.
A commission is usually a paid transaction between two parties where one hires an artist to create something for them for their personal use and consumption.
As long as they do not try to resell the fanart they just purchased or try to make copies to sell illegally then everything should be ok.
Any artist selling fanart as a commission should state in any of their contracts that the artwork is sold for private use and its sale does not give the buyer a commercial license to re-use or re-sell the fan art created.
Selling fanart publicly
If you are selling fanart publicly then you should consider a few things.
Publicly can mean a website, a market stall, a physical store, an online store, on social media (Instagram, Facebook, etc), and even conventions.
The first is that if you are selling unlicensed merchandise based on someone else’s copyrighted intellectual property, then you could be sued for copyright infringement.
The second is that if you are using someone’s copyrighted material without their permission, they could send you a cease and desist order asking you to stop using their material.
If you receive a cease and desist order, it is best to comply with it and stop using the copyrighted material.
If you do not comply with a cease and desist order, the copyright holder could file a lawsuit against you seeking damages. This is in extreme cases and quite rare in the real world.
So, while you can technically sell fan art, it is best to get permission from the copyright holder first. That way, you can avoid any potential legal issues down the road.
Don’t use searchable words that are trademarks
Don’t describe your fanart using trademarked words such as brand for example Marvel or Disney. Use more general headings that fans can recognize.
For example, instead of writing Batman in your heading, call it “The dark knight”. This reduces the chances of BOTs that are roaming the internet picking up your description and then getting a take-down notice sent to you.
I used to sell drawings of Ford Mustangs but I called them Pony muscle cars. Fans totally got what they were.
There are ways you can sell fanart and not get sued
One way to do this is to create derivative works. A derivative work is a new work that is based on existing work. This can be done with fan art by adding your own elements to the artwork or by using the artwork in a new and creative way.
Another way you can sell fanart and not get sued is to use fair use. Fair use is a legal doctrine that allows for the use of copyrighted material in certain circumstances.
It can apply to fan art if you are using the artwork for criticism, commentary, news reporting, teaching, scholarship, or research. If you are using fan art for one of these purposes, it is more likely that you will not be sued.
You can also sell fanart if it is transformative. Transformative fan art is artwork that is based on an existing work but is changed in some way. This can be done by adding your own elements to the artwork or by using the artwork in a new and creative way.
If you are unsure whether your fan art is transformative, take a look at what you have created and ask yourself if your work could be mistaken for the original thing.
If it can then you have not transformed it enough. If you have created a likeness such as a 3D rendered ‘cartoon’ style car design based on a real car then you have most likely transformed the original design and you are in the clear.
In general, it is best to avoid selling fan art that is exact copies of copyrighted characters or artwork. If you do sell exact copies of copyrighted characters or artwork, you could be sued for copyright infringement.
There are some sites that allow you to sell fan art legally and these will have programs in place that specify which fanart you can legally sell and the site will collect royalties from the copyright owner.
Redbubble for example has a partner program where they list the fan art that can be created and sold as officially licensed art.
“Familiarize yourself with the guidelines for each brand.
Stick to the rules and the chances of your work being approved are much better.”
https://www.redbubble.com/partner-program#brands
What is fanart?
Fan art is artwork created by fans of a particular work, character, or celebrity. It can be anything from paintings and digital art to sculptures, car renderings, and crafty creations. Fan art can also take the form of fan fiction, which is stories written by fans that use pre-existing characters or settings.
Is fan art legal?
The legality of fan art can be a bit of a gray area. Some people argue that it’s a form of fair use because it’s transformative and not meant to compete with the original work. Others say that it’s a clear copyright infringement because it’s based on someone else’s creation.
The truth is, there isn’t a straightforward answer. In most cases, whether or not you can sell your fan art depends on a few different factors, including the copyright of the original work, the type of fan art, and how you’re using it.
The fan art below is a great example of transformative fan art. You know what it is without it being an exact copy.
What is copyright?
Copyright is a form of legal protection that gives artists and creators the exclusive right to sell, reproduce, or distribute their work. Copyright can apply to a wide range of works, from books and paintings to sculptures, car renderings, and crafty creations.
When an artist or creator holds the copyright to their work, it means that they have the sole right to decide how that work is used.
This includes things like making copies of the work, creating derivative works (like fan art), performing or displaying the work publicly, and selling or licensing the work to others.
From my own experience and from talking to a few lawyers (based in the USA), the law varies from state to state and country to country.
The one common response was “if your fan art is transformative enough or it falls under parody, then it can fall under the doctrine of Fair Use as long as you do not infringe on other copyright or trademarked items such as names or logos.”
I have already covered most of the questions around the legality of fan art here.
What I have not gone into further details about is can you sell fanart and not get sued.
Can you sell fan art nft?
An NFT (Non-fungible token) is no different from any other digital fanart or physical fanart. The image falls under the same laws.
So while you can sell fan art as an NFT, you need to make sure that the fan art does not infringe on any copyright laws. If it does, you could be sued for copyright infringement.
One way to avoid this is to create original fan art or get permission from the copyright holder to sell the fan art as an NFT.
Sources
Videogame Image by Fernando Mendoza from Pixabay
TV show Image by Mystic Art Design from Pixabay
Mushroom Image by Nicole Dralle from Pixabay
NFT Image by mohamed Hassan from Pixabay
Van Image by mdherren from Pixabay
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
