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Update notice as of January 17, 2013: I have given this guide a MAJOR overhaul. It was originally written over a year and a half ago, and since then my own views and understanding of copyrights has changed. I felt that this guide should reflect those changes, so if you read this guide in the past, please take a moment to look through it again as I have added MANY new topics, information, and sources. Unlike my first draft, I have also changed my viewpoint to neutral throughout this writing.

Disclaimer: I am not a lawyer, nor any kind of professional that works in dealing with laws or copyrights. This guide was written based on my own research and understanding of copyright laws, and from discussions with others knowledgeable of the subject. These facts are all sourced from U.S. law. I encourage others to do their own research and draw informed conclusions on how they would like to pursue the issue of selling fanart.

The Truth About Selling Fanart

Fanart is something you undoubtedly encounter on a daily basis while browsing the internet, Deviantart, and similar websites. We are all a fan of something, and "fanart" can be a great way for artists to explore artistically and bring fans together.

Fanart can be a tricky thing though, especially when it comes to selling it. There are so many artists out there that sell art of copyrighted material that it can be easy to get lost in the cloud of misinformation. This guide hopes to enlighten you to the truths and falsities about selling and commissioning fanart.

What is "Fanart"?

Fanart is a piece of art that contains a character, name, logo, setting, or any other content that is not owned by you (referred to as a "third party"). The third party content could be from a book, movie, cartoon, TV show, another artist, or a menagerie of other things. For example, if you like Harry Potter and decide to draw a picture of him playing Quidditch, this would be considered a fanart.

In reality, "fanart" is a very vague term, which is why it is often hard to find solid information about it. Most fanart is, in legal terms, what you would call "derivative" art. There are many different kinds of fanart, and many different kinds of derivative art. A piece of fanart may fit into one or many of the following categories:

Derivative Works

Derivative works are created when an original work has been modified, creating a new artwork. A minimal amount of creative effort must be applied to an original work in order to consider it derivative, otherwise it is just a copy. Only copyright holders and those with permission granted to them by the copyright holder have permission to create derivative works based on the original.

Copyright for derivative works applies only to the creativity that has been added to the original. For example, let's say you draw some fanart of Pikachu from Pokemon. You didn't use any of Nintendo's official Pikachu art in your drawing, and you interpreted Pikachu into your own unique style. This fanart counts as a derivative work instead of a copy, because you have made significant creative changes to the original character. This means that the fanart you have drawn is copyrighted to you. However, you did not create Pikachu and so you do not own the copyrights to Pikachu used in your drawing. Technically speaking, this means the very existence of your fanart is infringing on copyrights, because you have used a character that you do not own and do not have permission to use. More so, this also means the selling and reproduction of this fanart would further infringe on Nintendo's copyrights.

Now that I've sufficiently frightened you, know that there is an exception to these laws of copyright, known as "Fair Use", which will be discussed more later on.

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More info on derivative works: en.wikipedia.org/wiki/Derivati…
Understanding derivative works under copyright law: www.legalzoom.com/intellectual…
Very useful Q&A about derivative works: chillingeffects.org/derivative…
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Parodies

Parody works, also referred to as "Spoofs" or "Satire", are derivative works that focus on humor. They are meant to make fun of something in a comical way, usually focusing on plot holes, character flaws, or other imperfections in the subject matter. Many parody works can be sold successfully even though they share very close similarities with what they are making fun of, since parody works do not include heavy amounts of official copyrighted names, logos, characters, etc, or directly copy the source material (as this would become infringement). Parody is not to be confused with Slander, which focuses only on negative views and aims to humiliate or damage the reputation of the third party.

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More info on parodies: en.wikipedia.org/wiki/Parody
Tips for creating a successful parody: www.lfiplaw.com/articles/trade…
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Plagiarism

Plagiarism, also called "copying" or "tracing" when referring to drawn works, is the act of using third party content without adding any creativity of your own, and/or using material without credit to the original artist or copyright holder. Plagiarism is a form of copyright infringement; it is not considered a derivative work and is not protected by the fair use claim.

Transformativeness

Most fanart is claimed to fall into this category. A transformative work (also known as "Adapted") is used to describe a work that has been changed and represented in a new way. Art may be considered transformative if it adds value to the original, or provides new insights and information that was not included with the original work. For example, a book review would be considered transformative. Since it would be very difficult to write a book review without including some of the book's original content, it becomes a transformative work when you add your own creative views and understanding to the original material. Parodies may also be considered transformative.

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More info on transformative works: en.wikipedia.org/wiki/Transfor…
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Fair Use

"Fair use" is a claim against copyright infringement when a derivative work has been created without the permission of the copyright holder. Fair use usually refers to journalism, education, and research, but other unique cases have been ruled under fair use as well. Because fanart is so varied, fair use claims are judged on a case-by-case basis. Parodies are widely accepted as being protected under fair use, but it is in your best interest to carefully judge the criteria and determine whether or not your fanart might fall under the protection of fair use. Because even personal uses for derivative work may not be protected by fair use, you should take extra care when considering selling fanart for profit.

Fair use claims are judged in four factors, as follows:

• The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
• The nature of the copyrighted work;
• The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
• The effect upon the potential market for or value of the copyrighted work.

While profiting from derivative works is not a deciding factor, it usually weighs heavily against fair use claims. Until your fanart has been judged by a court of law and is found to meet criteria of being protected under fair use, you can assume that selling it without permission is infringing on copyrights, ie: illegal.

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More info on fair use: en.wikipedia.org/wiki/Fair_use
Helpful guide on how to judge your work under fair use: publishing.wsu.edu/copyright/f…
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The "Gray Area"
The "Gentleman's Agreement"
The "Unspoken Rule"


Many who create and sell fanart often mention the "Unspoken Rule". This is in reference to the idea that even though selling fanart without permission is illegal and can be morally objectionable, there is very little chance that any legal actions will actually be taken against you. Fanart is often said to rest in a "gray area" of copyright law because even though it is technically infringing on copyrights, the intent is usually not to harm the copyright holder, but rather to honor or pay homage to them.

Generally, the distribution of fanart is seen as a good thing that promotes interest and "free advertising". In most cases, the benefits of the creation of fanart far outweighs the negatives for both fans and copyright holders, who would make an awfully bad name for themselves if they began attacking their own fans on grounds of copyright infringement.

The act of selling fanart without permission however, is where complications arise. Basically, you are making a profit from content that you do not have the licenses to use. Paying homage to the creator of something is different than encroaching on their market. Not only does it hurt the copyright holder, but it hurts other artists as well. An artist who chooses not to illegally sell fanart can easily lose customers to someone who does choose to sell fanart illegally. It is easy to sell fanart because it contains characters and content that already has a pre-existing fanbase. This can make it very difficult for artists to sell original work and learn to support themselves artistically.

Selling fanart without permission can also give you a "bad business" record. While naïve young fans and artists may be ready to commission and sell fanart, professional businessmen, companies, and experienced artists will not buy from someone who does not take copyright infringement seriously.

Do not be surprised that some people look down very harshly on those that profit from fanart. Others also feel that selling fanart for a profit "takes away from the spirit of fanart". In many cases, people have been publicly humiliated or booted out of conventions for having mass produced prints and fanart commissions.

Cease and Desist

An undeniable risk of selling derivative works is getting in trouble with the law. Remember that as long as your work contains content from a third party, the copyright holder has full legal rights to take action against your profiting from – or creation of – that fanart if they so desire.

While the copyright holder does not have the authority to take ownership of and do what they please with your fanart, the truth is neither do you! If the copyright holder wishes for you to stop profiting from their material, their most likely plan of action will result in a "Cease and desist" order. This order calls for the recipient to "cease" their dealings, and "desist" from doing them again. If the undesired activity continues, a civil lawsuit could result. Similarly, "demand" letters may also call for monetary compensation.

Some copyright holders and companies are known to be quite aggressive over copyright infringement, and the last thing any artist wants is to become the poster child of corporate wrath.

Your fanart is more at risk if:

• It uses official art, logos, or content not solely created by you
• It depicts characters or content in a deformative, sexual, slanderous, or otherwise "unflattering" light
• It has little or no difference from the original works
• It does not have a parody influence
• You sell a high number of commissions or prints
• It caters to the same market as the copyright holder

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More info on Cease and desist orders: en.wikipedia.org/wiki/Cease_an…
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Taking a Stand

If you see an artist profiting from fanart that you believe they don't have permission to sell:

• Do not buy art of third party content from them.
•  Let them know that what they are doing is illegal and it bothers you.
• Tell them that you will not buy art from them if they continue to sell fanart illegally, and that you will encourage others to do the same.
• Inform the copyright holder that someone is illegally profiting from their copyrighted material.

Keep in mind that many people simply do not realize what they are doing is illegal. Always remember to be polite, direct, and informative when contacting someone. Never use insults or jump to unnecessary conclusions.

The Safest Route

If you are truly intent on selling fanart, and want to do it in a respectable and legal fashion without risk of backlash or infringement troubles, the safest route is to obtain permission from the copyright holder. Some content is owned by multiple people, or has different copyrights for different versions, so it is very important to do your research on who-owns-what. When requesting for use of third party content, be advised that correspondence could take quite a long time. Some copyright holders respond right away, while others are big, busy companies. It is best to plan months in advance before trying to sell any fanart at upcoming conventions or events.

Copyright holders may ask you for specific information about what you intend to sell, where you intend to sell it, and for how long or how many copies. They may even ask you for a percentage of your profits or a fee for using their content.

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Guide to requesting permission: copyright.columbia.edu/copyrig…
Guide to locating copyrights: norman.hrc.utexas.edu/watch/us…
Info on obtaining permission: www.copylaw.com/new_articles/p…
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Alternatives and Work-Arounds

If you still wish to distribute fanart but don't want to hassle with permissions, and also don't want to risk infringing on copyrights, there are some other options available to you:

• 501(c) Donations

Fanart and derivative works can be sold for profit as long as all proceeds are donated to a 501(c) organization, otherwise known as a "non-profit" organization.

• Bonus/Free Fanart

One way to distribute fanart freely is to offer it as a bonus to non-fanart commissions or purchases. Some artists offer a free choice of small items like pins, keychains, or stickers featuring third party characters with the purchase of an original work. This encourages the selling of an artist's original work, while still satisfying the customer's desire for fanart.

• Art Trades

The trading of artwork instead of money is a great alternative. Both artists get a fair exchange and because the dealing is not about monetary profit, it is okay to request fanart drawings.

Other non-issues:

• Cosplay

Creating costumes and accessories for personal use is considered another form of fanart, and does not pose any more of a threat to copyright infringement than the other mediums do.

• Fan Characters

Original characters inspired by a particular franchise are not considered derivative works, but original works, as long as the fan character does not contain any third party copyrighted content like names, logos, outfits, etc.

Parting Statements

In conclusion, the selling of (and even creation of) fanart is a very tricky subject with a diverse array of outcomes. It is common knowledge that profiting from fanart without permission is greatly overlooked, which only fosters the belief that buying and selling it in this illegal manner is okay. Even if the practice is widespread and easy to get away with, be aware of the fact that you are profiting without the legal rights to do so.

Also keep in mind that only the copyright holder or the ruling in a court of law can officially determine whether or not your derivative art is protected under the fair use defense. Most people don't have the time or money to fight legal battles if they are ever challenged however, which is why being granted permission from the copyright holder is the best and safest option for your fanart-selling endeavors.

Many artists out there are able to create admirable fanart pieces, but there will never be anything as beautiful, inspiring, creative, or imaginative as true originality.

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Sources/Further Reading:

• VERY informative video of Josh Wattles, legal advisor of dA: youtu.be/xKBsTUjd910
• DeviantArt's fanart policy: help.deviantart.com/743/
• More info on fan art: en.wikipedia.org/wiki/Fan_art
• Info on fan labor: en.wikipedia.org/wiki/Fan_labo…
• Info on copyright infringement: en.wikipedia.org/wiki/Copyrigh…
• The Organization for Transformative Works on Wikipedia: en.wikipedia.org/wiki/Organiza…
• Official website for the OTW: transformativeworks.org/
• An explanation of copyrights and fanart: lexxercise.tumblr.com/post/596…
• A forum discussion on the selling of fanart: www.digitalwebbing.com/forums/…
• A forum discussion on law and ethics of selling fanart: www.sweatdrop.com/forum/showth…
• Article about fanart and the Unspoken Rule: www.plagiarismtoday.com/2010/0…
• Personal account and tips for selling fanart: www.theotaku.com/fanwords/view…
• A guide on copyrights for fanfiction authors: www.whoosh.org/issue25/lee1.ht…
• The difference between Trademarks, Copyrights, and Patents: www.lawmart.com/forms/differen…
Update as of January 17, 2013: This guide has been re-written and heavily revised. If you read this guide or commented here in the past, please take a moment to re-read as it has been updated with far more information, topics, and sources.

I would like to take a moment to thank everyone who has commented here, read, and linked to this guide. I still get comments and discussions happening on a regular basis, and hopefully the added information in this new draft satisfies those that were critical of it before.

I realize its quite a bit longer than it used to be, which was only necessary to cover the wide array of topics surrounding fanart. Do not use this guide as your only source of information. There are some extremely helpful outside links included throughout the document; be sure to do your own research and get to know what you're dealing with when jumping into the convoluted world of copyrights.

Be aware that with the revision of this guide, older comments and discussions may now be outdated.

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Original description

This is something I've wanted to write for a long while. With all of the plagiarism and art theft that happens on the internet, the issue of selling fanart is often overlooked by both consumers and copyright holders.

There are quite a few artists that I greatly admire who profit from fanart without permission. Its sad to think of how creative and talented they are, and yet they delve into an illegal subject and fuel the belief that it's alright to do so.

With this guide, I would simply like to raise awareness about the issue, and educate those who may be unaware that their acts are not legal.
Add a Comment:
 
:iconclevlanders:
ClevLanders Featured By Owner Edited 6 hours ago  Hobbyist Traditional Artist
Thank you for this. I keep seeing so many artist post adoptables for sale on this sight that clearly look like they're based on chanon characters even if the color has been changed a little bit. You can still tell what they are.
 Although I myself like to draw fanart, my gut kept telling me it might be illegal for me to sell any of my Tiny Demons and Guardians that I have drawn to look like pokemon or other characters even if they look slightly different than the original design, for profit as it would basically be the same thing. So I went online and bam I found your link. Which I must say is excellent and helped answers any questions I have about illegal and legal fanart.

Therefore  in my commision journal I have stated the following

Commissions
Just to let any and all fellow artists and art lover I do take commissions for which the following information concerning all rules, regulations, and anything you  need to no about what I can and cannot do as an artist is provided here.

1) What I won't do for money: I won't do anything horror related, sexual, overly violent, or that is based on a character, or logo that is in the public's eye (this is do to legal complications so don't even ask). However I will be willing to trade them for things of equal value.
2) The price for all commissions are between $1.00/100 points to $25.00/2500 depending on the complexity of the drawing, time spent, and the materials used.
3) I currently only except DevienArt Points which can be added to my donation pool when purchasing commissions.
4) If you don't want to give me points I may be willing to trade for an item of equal value.
5) Strength: anime, pokemon, kamen rider & power rangers, cartoons, some animals: bats, frogs, sea serpents, dragons, bug, insects, or arachnids, and my eye for color
6)  Weaknesses: realism 
7) drawing implement which I typically use are pencils, crayons, markers, and pens  I can also paint in watercolor or acrylic if need be
8) No refunds of commissioned work is permitted.
9) if you wish to purchase a commission as a gift for someone please let me now and I will label it as such when finished
10) if you have any further questions about commision art work from me please feel free to ask

So once again thank you for the this insightful information 
KiRAWRa.
Reply
:iconayedeas:
Ayedeas Featured By Owner Edited Mar 6, 2015  Professional General Artist
Sorry if this is dead/you are no longer responding to comments, but I'm genuinely curious about this. 
I'm planning a project - mostly to get out of my comfort zone and try something new to better my skills - where I recreate the horses from Red Dead Redemption into Breyer Model Horses.

Breyer is completely okay with use of their model horses for monetary profit. They even have classes in their annual festival (it's basically a convention, I'm not gonna lie) where artists can show their customs - whether they created or bought them - in a competitive way for a chance to win an ooak original finish model made by the company. They even sell customization kits, encouraging new hobbyists to try their hand at creating their own ooak model. In fact, some people - myself included - customize models for a living. 

However, I'm curious about the fanart aspect. Basically, I'm taking the breeds described in the game, finding a model or altering an existing model to fit the real breed's conformation, and then painting them with the same colour and markings. 

example: The Ardennais

The regular breeds I can more than likely get away with, since their designs are actual horse colours and you wouldn't be able to tell it was an RDR horse otherwise without knowledge of the project or I told you.

However, the more RDR-specific horses - such as The Horses of the Apocalypse - are what I'm curious about. 

Here's the basic run-down of the project so you can see more of what I'm planning the end product to look like. 

If they can't be sold, it's no big deal, I'm not doing this for the monetary profit - that would just be an added bonus - and they'll be great to add to my own collection if not, but I definitely want to know if they can be c:
Reply
:iconkirawra:
KiRAWRa Featured By Owner Mar 6, 2015
Wow, that is a very ambitious project you have set for yourself! I agree that the existing horse breeds shouldn't cause you any trouble, and I doubt the apocalypse ones would as well. There have been a lot of one-time fanart or homage projects like this that were sold successfully for hundreds or even thousands of dollars (I believe some may have been for charity, though). Since this sounds more like a homage collection, and not something you're out to mass-produce and bank off of, I wouldn't worry too much about getting in trouble over copyrights. Especially since RDR's renditions of the apocalypse horses seem to be pretty general as well - minus some of the more recognizable markings and fire.
Reply
:iconayedeas:
Ayedeas Featured By Owner Mar 6, 2015  Professional General Artist
Alright thank you! That's what I was thinking, too. I do a lot of fan art, but I never do it for profit. This project is different since it's not digital art and therefore takes up physical space, and with model horses, if a model sits on my shelf for too long I feel the urge to get rid of it or customize it to change things up. I'm currently having to refrain from customizing my whole Original Finish collection that I've had for over 3 years heh 

But that's definitely a relief! I managed to glitch the game in a way that caused War's flames to not show up so I took a picture for reference since it's hard to simulate fire on plastic. That alone makes the horse look completely different, since everyone knows War for its flames. But yes, it's definitely just a one-time thing because I'm crazy and like to do ambitious projects that end up costing an arm and a leg :P

Again, thank you! That eased my mind a lot. 
Reply
:iconkirawra:
KiRAWRa Featured By Owner Mar 7, 2015
I wish you the best of luck!
Reply
:iconayedeas:
Ayedeas Featured By Owner Mar 7, 2015  Professional General Artist
Thank you much! 
Reply
:icon12momjosh12:
12momjosh12 Featured By Owner Mar 4, 2015  Student Filmographer
I have a friend who use fanarts for profit purposes:
kriztianmilanes.deviantart.com…
Reply
:icona23spyro:
a23spyro Featured By Owner Feb 26, 2015  Hobbyist Digital Artist
Ok, say one day I get myself Blender and Source Film Maker to create a movie version of my comic I'm working on.

My comic is about a Sonic character.  QA Comic Title by a23spyro

Can I monetize it on youtube under the Fair Use bid? It seems like you don't have to ask SEGA for permission with this kind of stuff.

Hell, Balenaproductions is doing it!

Steven Page is clearly monetizing all of his videos containing third party (Sonic) characters and he's making a lot of money off of those videos! 
Reply
:iconkirawra:
KiRAWRa Featured By Owner Feb 26, 2015
It looks to me like you are using purely fan-made characters in your story. You have all the rights to do what you wish with characters of your own making!
Reply
:icona23spyro:
a23spyro Featured By Owner Feb 26, 2015  Hobbyist Digital Artist
They're not fan-made. That's Queen Aleena from Sonic Underground and Robotnik Jr from Adventures of Sonic! They're clearly not mine! But... if Balenaproductions is monetizing all of his videos containing third-party characters (which are not his) can I?
Reply
:iconkirawra:
KiRAWRa Featured By Owner Feb 26, 2015
Ah, my bad! I am not familiar with Sonic characters outside of the main ones. There are many people who make money from fanart and fan productions. It is not always a clear line between what is okay and what is not, unless you specifically ask the copyright holder for permission. Some groups would say that by creating your own story, you are protected under the "Transformative Art" category of derivative art. It is possible that Balenaproductions is not aware of the potential consequences of profiting from third-party content. Ultimately, it is up to you to decide!
Reply
:icona23spyro:
a23spyro Featured By Owner Feb 27, 2015  Hobbyist Digital Artist
Well, Balenaproductions work is under fair use via parody, while the thing I'm doing is not in a mocking manner at all.

So, say I created an SFM video with CGI stuff I created from scratch, but the stuff I made is of third-party (copyrighted Sonic character) and then I upload the video to youtube. What should I say to SEGA?

Hello: I've created derivative transformative Artwork of this Sonic character. May I be so bold to ask you if I can monetize the video?

How about that?
Reply
:iconkirawra:
KiRAWRa Featured By Owner Feb 27, 2015
Ahh, I see now. Well, the amount of work and effort put into your project sounds like a lot of original creativity. You might consider it enough added material to protect you under Transformative, and I'm sure a small-scale project like yours is not going to attract too much negative attention. But contacting the copyright holder is certainly the way to know for sure! Here are some helpful links about requesting permission:
- copyright.columbia.edu/copyrig…
- www.copylaw.com/new_articles/p…
Reply
:icona23spyro:
a23spyro Featured By Owner Feb 27, 2015  Hobbyist Digital Artist
Thank you very much! I'll get to work on reading them
Reply
:iconlightea:
Lightea Featured By Owner Feb 7, 2015
Hello! Thank you so much for writing this~
I have a question: let's say you drew fanart from an anime/tv show/etc., turned the fanart into keychains and sell it on a website like storenvy, for example. Is that alright/legal?
Reply
:iconkirawra:
KiRAWRa Featured By Owner Feb 8, 2015
The term "fanart" as referred to in this guide is relating to every kind of art. Whether its a drawing, a sculpture, printed clothing, keychains, plushies, etc. if you are using images, names, designs, characters, music, environments or anything that doesn't belong to you that you did not get permission to use, could be copyright infringement if you attempt to sell it. I say "could be" because there is no way to know exactly what is allowed and what it not without consulting the owner for permissions, and some artwork activist groups consider fan art to fall under the protected use of "transformative art". This guide is simply to raise awareness about the risks that may be involved with fanart creation and selling. Ultimately it is your choice whether you would like to sell fanart or not ;) (Wink)
Reply
:iconlightea:
Lightea Featured By Owner Feb 9, 2015
Ah, I see. Thank you so much for answering! You really helped me. :) (Smile) 
Reply
:iconaoi-kanou:
Aoi-Kanou Featured By Owner Feb 6, 2015  Student Digital Artist
Thank you very much for this! If I have any questions in the future, I'll be asking you :D
Reply
:iconkirawra:
KiRAWRa Featured By Owner Feb 7, 2015
You're very welcome, thank you for reading!
Reply
:iconnondev:
nondev Featured By Owner Feb 3, 2015   General Artist
Thanks for sharing, I really needed clarification on this!
Reply
:iconkirawra:
KiRAWRa Featured By Owner Feb 8, 2015
You're very welcome, thank you for reading!
Reply
:iconagifarclor:
agifarclor Featured By Owner Feb 1, 2015
Thank you so much for this! I love making fanart since I am often inspired to paint by fandom. However, I do not, and I do not even try, to make a profit out of them knowing that it just isn't right to make money out of something someone else created unless the creator of the original permits it. I found this while trying to know more about the act of selling fanart since I see a lot of fanart being sold here, on Etsy, etc.. I am also puzzled that some artists (please, excuse the lack of specifics as I do not wish to drop any names) call their work "originals." I do not know, though, if they got permission from the copyright holders. Even so, and if you make fanart in your own style and out of a personally imagined concept, can you really call it "original"?
Reply
:iconkirawra:
KiRAWRa Featured By Owner Feb 8, 2015
I believe that the term "original" in this case is not referring to an original concept, but to an "original" as in a physical piece of artwork, as opposed to something like a print or reproduction. But I do understand your intended meaning, you can add your own spin to things but you are still drawing your inspiration from someone else's work. Then again, isn't that the natural progress of art creation, one artist inspired from another?
Reply
:iconninjaofthecrackerbox:
So... I can sell original character artwork from a franchise  in the form of, say, a coloring book? So long as it doesn't have the name or logo?
Reply
:iconkirawra:
KiRAWRa Featured By Owner Jan 28, 2015
You've got it sort of backwards - use of any aspect of third party content (be it logos, names, characters, settings, etc) without permission from the copyright holder, could be considered copyright infringement and be illegal to profit from. I say could be, because there is no way to know exactly what is allowed and what it not without consulting the owner for permissions, and some artwork activist groups consider fan art to fall under the protected use of "transformative art". This guide is simply to raise awareness about the risks that may be involved with fanart creation and selling. Ultimately it is your choice whether you would like to sell fanart or not ;)
Reply
:icontag-nadia:
TAG-Nadia Featured By Owner Jan 26, 2015  New member Hobbyist Digital Artist
Thank you very much for this informative piece, it really helped me a lot!

I very recently opened up a Redbubble account to sell my pixel art designs, and I started with fanart because I just wanted to see these particular ideas made and share them with other fans, but I wasn't sure about the legality of it even though Redbubble hosts hundereds of illegal fan art pieces. 

After reading this, I came to the conclusion of removing my profit margine from my fan art pieces. That way if any fans really enjoy the work, they can just pay Redbubble to print the work. I'm sure it's probably not the most legal way to go about it, but it lets me share fan art that means a lot to me without feeling too guilty about it. I just hope that now that I'm feeling comfortable enough to make original work, people will either enjoy my original work more, or at least be appreciative enough for the discounted fan art to support me. Fingers-Crossed - NaNoEmo14 Day 12 
Reply
:iconkirawra:
KiRAWRa Featured By Owner Feb 8, 2015
That is an honorable decision! I wish you the best of luck with selling your original works!
Reply
:iconevo-artist:
evo-artist Featured By Owner Jan 23, 2015  Hobbyist Digital Artist
A very interesting read. Especially liked your suggestion for adding a bonus/free art when someone purchases an original work. :meow:
Reply
:iconkirawra:
KiRAWRa Featured By Owner Jan 26, 2015
Thank you!
Reply
:iconglitch646:
glitch646 Featured By Owner Jan 13, 2015  Professional Digital Artist
Good Stuff!
Reply
:iconpukahuna:
Pukahuna Featured By Owner Edited Jan 9, 2015
Hi, if I made a fanart of a book chrater as I imagine it, only using the book as a reference, I still can not sell? (I just want to buy a mousepad for me ;-; ) in fact the character is very general, if I did not put his name in the title I think I will not have problems, but I'd like to know if I can put his name in the title or description when I post it here on Deviantart
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:iconkirawra:
KiRAWRa Featured By Owner Jan 15, 2015
It would be safer to not use the character's name, but if this is only going to be a one-time sell, you probably won't have any problems either way.
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:iconrobinsgaze:
robinsgaze Featured By Owner Dec 31, 2014  Student General Artist
quick question -
If you draw an adapted picture from a portrait of a cosplayer, (say they have a realistic portrait and you draw an abstract portrait based off of it) AND have permission from the cosplayer to use the portrait, is it legal to sell prints?
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:iconkirawra:
KiRAWRa Featured By Owner Jan 1, 2015
In this situation you would have two copyright holders - the person who owns the character that the cosplayer is dressed as, and the cosplayer themselves (who owns the portrait and the rights to their own image). If your interpretation is abstract to the point where your inspiration cannot be derived directly from your work, it could be considered an original work and would be okay to sell (I believe there is a rule of something like at least 20% of the source material must be changed for it to be considered an original work). Generally, things that are "based on" other things are just fine. Inspiration comes from many places and there is always a long chain of things based on other things when artwork is created. For example, if I wanted to create a cartoon with talking lions which I based on Lion King, that would be perfectly fine. However, if I made a cartoon using Simba and Nala from Lion King, that would be copyright infringement.
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:iconchocoppyica:
Chocoppyica Featured By Owner Dec 19, 2014  Hobbyist Photographer
I've come to realize there is quite a few artists that sell art books that usually carry a theme. Like pokemon, touhou, DBZ, etc.... I always love buying art books from artists, especially ones with a cool theme! However.....is that technically illegal? ;---; Like this for example- pkmnuniverse-project.tumblr.co… It's absolutely gorgeous! To think if stuff like this got banned. Oh that is so disheartening. x.x
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:iconkirawra:
KiRAWRa Featured By Owner Jan 1, 2015
This is part of the reason why selling of fanart can be such a tricky situation. Some people are just out to make money, while others are truly adding their uniqueness to someone else's creation. There are quite a few groups out there that advocate fanart as being protected under the "transformative" category of derivative art, because of the creativity that is added. As it says in the guide, you can never be 100% sure of what is allowed and what is not due to the variable nature of artwork and copyrights, but it can generally be assumed that usage and profit of another's content without permission can be considered copyright infringement.
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:iconkittypandemic:
KittyPandemic Featured By Owner Dec 17, 2014  Student Digital Artist
Thank you for this! I'm finally going to be drawing on the tablet soon, and I had this question in mind, this answered it exactly. I don't want to get in trouble once I start doing commissions, so this was exactly what I needed! Thaaanks ;; <3
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:iconkirawra:
KiRAWRa Featured By Owner Jan 1, 2015
You're very welcome, thank you for reading!
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:iconthebeautyofravens:
TheBeautyofRavens Featured By Owner Dec 14, 2014
I am thinking of making my own marvel fan comic. I am not sure if I am going to do it, but I am curious about copyright issues that can happen if I decide to sell a few books in a ComicCon or online. I am going to say the all the characters and designs belong to their owners, just the storyline is mine.

I am new to all of this. I just started drawing a bunch of other fanarts of TV shows and books, and I want selling them in Cons to get some money for my own (I hardly have any money .___.).
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:iconkirawra:
KiRAWRa Featured By Owner Jan 1, 2015
Do not let copyrights scare you out of drawing what inspires you. Mimicking the styles and methods of other artists is almost always a critical step that people take to inspire themselves and develop their own unique way of drawing. I'm sure there are many people who would enjoy seeing what creativity you have to bring to the Marvel world and characters, but I would exercise caution if you intend to sell it. Fanart is a great way to get people to notice you and your work, but you should certainly try to get noticed for your original creations as well.
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:iconthebeautyofravens:
TheBeautyofRavens Featured By Owner Jan 3, 2015
Thank you for replying! :)

I just want to express the story that has been in my mind for a while. I will draw it in my own style because I want my fanwork to be recognizable. In your opinion, what should I be worried about when selling fancomics, or small artbooks? I want to sell them in ComicCon.
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:iconkirawra:
KiRAWRa Featured By Owner Jan 8, 2015
What I meant about being worried was that by using other people's characters and making money from them, you could be infringing on copyrights. There's nothing wrong with drawing a fan story, but when you sell it without first getting permission from the copyright holder, they could get upset and make you stop. I would hate for you to put so much work into something only to get in trouble for it. I highly doubt it would even happen of course, but I'd just like you be aware of the possible risks when it comes to selling fan-made goods.
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:iconsakuems:
Sakuems Featured By Owner Dec 12, 2014
thanks
i'm actually selling a few fanarts, and i don't even make that much (barely 100$ a year) and since i want to be taken seriously an grow as an artist, i'm gonna stop selling them.
but i have a problem right now, as you said, in convention, it's very specific, you are not allowed to sell any third party content. but if the convention owners were following that rule, they will removed HALF of the booths in the artist alley since most people are selling fanarts. In a convention, it's almost the only way to make a profit and a lot of visitors are ignoring booth that has no fanarts.
it's really depressing, i was lucky enough to make enough profit with my originals but i also know some other artists who made 3 times my income by selling only chibi fanarts.
it's illegal but nobody is gonna report them since they attract so many people to the artist alley ...
that unspoken rule is the devil. No matter how you see it, there's no gray area when it comes to selling fanarts. Some artist on DA are very well known for selling fanarts but have never been reported ... the crazy amount of fanarts on society6 shop is INSANE even though it's in the terms of use : you can't sell third party content. but if you search for "queen of snow" you can find hundreds of Elsa fanarts, some of them are a pure copy of the disney style.
and they are still making money with it, because society6 IS making money on each sale they have no interests into stopping this. even though they are not even respecting their own terms.
All this makes it hard to make a living out of selling originals, for sure. I want to be able to create characters tha people will make fanarts of. but if one day i'm lucky enough to have a famous character, that also open the gates for people to make profit out of it.
so yeah ... fuck that, it's just so annoying. and everytime i say to an artist selling fanarts "you are not allowed to do that" he's just laughing and starts its parody fuckin rule when it's not a parody, it's just a copy
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:iconkirawra:
KiRAWRa Featured By Owner Dec 13, 2014
I completely understand, it can be extremely disheartening! I'm glad to hear that you've chosen to sell only your original works, for all but a lucky few this is a difficult but rewarding path. I am also still trying to carve out my own original little piece of the artist world, hehe. I wish you the best of luck!
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:iconnasyu:
NaSyu Featured By Owner Dec 6, 2014  Hobbyist Digital Artist
This makes me curious.

What if someone (A) drew a piece of fan art just for fun (definitely not for sale), and then unknowingly to A, someone else (B) uses it to sell merchandise or prints for B's own profit? Would the copyright holder sue A?
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:iconkirawra:
KiRAWRa Featured By Owner Dec 7, 2014
That's a really interesting question! In this case, the person would be stealing from two people at once. They'd be stealing from the copyright holder by using a character they don't have permission to profit from, and they'd be stealing from the artist because they are using an artwork they don't have permission to profit from! So either person could confront the thief.
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:iconsunny-winter-star:
Sunny-Winter-Star Featured By Owner Dec 4, 2014  Hobbyist Digital Artist
Thank you for this guide, it's really useful! :D
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:iconkirawra:
KiRAWRa Featured By Owner Dec 5, 2014
You're very welcome!
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:icongoatqueen:
GoatQueen Featured By Owner Nov 29, 2014
People want me to design shirts and jackets with art and band names and band art as a personalized commission. I am not sure if this is a grey area, what do you think?
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