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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.

Update notice as of July 17th, 2015: Check out DeviantArt's new article on art theft, fanart, copyrights, and other relevant topics! protectart.deviantart.com/jour…

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.

Update notice as of July 17th, 2015: Check out DeviantArt's new article on art theft, fanart, copyrights, and other relevant topics! protectart.deviantart.com/jour…

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:
 
:iconthelastofus892:
Thelastofus892 Featured By Owner Edited 19 hours ago  Hobbyist Traditional Artist
I just want to know if its alright to sell a drawing from a video game to just 1 person that I know in real life
Reply
:iconmeridiangraydraws:
MeridianGrayDraws Featured By Owner Jul 9, 2015  Student Filmographer
I'm doing a webcomic right now based off of Lemony Snicket's a Series of Unfortunate Events - part of it is parody but most of the comic is clearly Transformative Use from the books.

Right now I am not making a profit off of doing the comic, however in the future I wish to sell copies at conventions and give the money to my church. Would this be considered donation fan art?
Reply
:iconjameschatting:
JamesChatting Featured By Owner Jul 23, 2015  Hobbyist Writer
You have to go back to the original books and create your own unique visualisation of it
It would probably keep nickelodeon off your ass ;)
Reply
:iconmeridiangraydraws:
MeridianGrayDraws Featured By Owner Jul 23, 2015  Student Filmographer
Haha yeah, my characters are for differently interpreted 
Reply
:iconkirawra:
KiRAWRa Featured By Owner Jul 9, 2015
Yes it would :)
Reply
:icontacticianlyra:
TacticianLyra Featured By Owner Jul 5, 2015
This is going to have to be reworked again when the TPP passes...
Reply
:iconkirawra:
KiRAWRa Featured By Owner Jul 9, 2015
Ahh yeah, probably :') I hope it will make things easier, though
Reply
:icontacticianlyra:
TacticianLyra Featured By Owner Jul 9, 2015
A lot of people are saying that it'll make all types of fanart illegal.
Reply
:iconkirawra:
KiRAWRa Featured By Owner Jul 9, 2015
Oh really? That is interesting. People always jump the gun when it comes to proposed copyright laws, though. There was actually a huge scare only a few years ago about a proposed law that was said to make everyone lose copyrights over their own art (I can't remember the name of it for the life of me) but it was actually just a small bill meant to give ownership to unknown and unclaimed art pieces over 60 or so years old. So, I'm not entirely convinced of the rumors, having seen similar things get completely blown out of proportion before.
Reply
:icontacticianlyra:
TacticianLyra Featured By Owner Jul 9, 2015
That's true. The whole SOPA thing happened a few years ago. People are calling this "SOPA but 10 times worse" and I honestly don't know what to think anymore.
Reply
:iconkirawra:
KiRAWRa Featured By Owner Jul 12, 2015
I think it's best to just keep an eye on things, but be careful not to buy into the hype and hearsay ;)
Reply
:icontacticianlyra:
TacticianLyra Featured By Owner Jul 12, 2015
I've been keeping an eye on news sites, but it doesn't help that no real info's being officially released. We only know things that have been leaked.
Reply
:iconkirawra:
KiRAWRa Featured By Owner Jul 20, 2015
Ah sorry for the delayed reply, but I was having the same trouble finding anything "concrete" that wasn't just blown up rumors (and while searching, I came across the name of that older copyright bill I mentioned earlier - Orphan Works!)
Here's finally something that should give you some peace of mind, though: graphicpolicy.com/2015/07/20/d…
Reply
(1 Reply)
:iconeboni-blue:
Eboni-Blue Featured By Owner Jun 18, 2015  New Deviant Hobbyist General Artist
Hi this was very helpful! However, i did find it a little intimidating and i know how scary the world of copyright can be.  
But i was wondering, as an artist who is looking to one day sell cartoon and anime fanart prints at conventions, how much risk is there? I've gone to conventions and have seen many artists selling works, granted i don't know how much they profit from them. I also agree that it is, in a way, "advertisement" for shows that the fanart depicts. Just how many cases of artist being confronted at conventions have there been? 
Also, for the "parody" works, what about fanart that is a crossover between two shows? I believe that is a parody in itself, but at the same time it is using material from two shows. Would this increase the risk of being confronted about your work?
it would be really helpful if i could talk to artists that have sold art at conventions too, but this was really eye opening and a great source. ^^
sorry if my questions were confusing, but any help would be much appreciated!! ^_^
Reply
:iconkirawra:
KiRAWRa Featured By Owner Jul 16, 2015
Hey there! Sorry for the delayed reply.
As far as risk goes, it all depends on what and how you are selling your fanart. There's not really any way for me to know how many times an artist has been singled out because they were selling fanart, but you can find and read a number of personal accounts from artists and witnesses who have been involved in disputes. The general rule seems to be that the more "original" your fanart is, the less risk there is. Consider: are you interpreting the characters into your own style or are you attempting to copy the style of the source material? How much of the source material are you using in your drawings? Are you using anything of the source material that you did not actually draw/make yourself? How many reproductions of your fanart are you selling? How much money are you making?
Artists who mass produce prints, make a lot of money, and who emulate the style of the source material tend to be targeted most often.

A "parody" is something that draws comparisons to a source material, usually in a humorous or "paying homage to" kind of way. You can parody two or even many different things at once, but it may not always be free of copyright infringement, depending on how much you use from the source material.
Reply
:iconeboni-blue:
Eboni-Blue Featured By Owner Jul 18, 2015  New Deviant Hobbyist General Artist
thanks so much this was so helpful! I understand and totally agree with the whole style thing.  I always make sure to interpret things in my own style and i'll keep these tips in mind. This was really encouraging and thanks again!! ^^
Reply
:iconkirawra:
KiRAWRa Featured By Owner 6 days ago
You're very welcome!
Reply
:icontrappedgirl:
TrappedGirl Featured By Owner Jun 6, 2015
If from after I read this and went around telling the famous and even top artists on DA - that are clearly profiting from fanart - I think I'd probably get more hate out of it lol. And whiners look more retarded compared to them. (Unless they actually got sued for copyright infringement.)
Reply
:iconcanveysue:
CanveySue Featured By Owner May 23, 2015  Hobbyist Photographer
Really appreciate this - so pleased you have taken the time to clarify some very difficult areas! I'm getting on a bit now but my personal view is that without the ability to use fan art as a base for our own development where would we ever get started on our own creative paths? Something has to inspire us in the beginning, even from the age where we can first hold a pencil.  We learn by emulating the world we find around us, the real and the artistic, and that is what teaches us to draw, paint and ultimately create. The earliest cave painters drew what they saw and what was important in their world. They also drew what they saw others draw, and their abilities developed from that and led to the advancement of all our creative abilities.  
Reply
:iconkirawra:
KiRAWRa Featured By Owner May 29, 2015
All very true! Fanart is usually what gets everyone into drawing. This guide does not condone fanart as a whole, it only focuses on the legalities of selling 3rd party content.
Reply
:iconkaitoudark1:
kaitoudark1 Featured By Owner May 21, 2015  Professional Writer
So, I've seen some artists offering fan art prints of trademarked pokemon as a reward for donating to them on Patreon, or other such sites.

Does this constitute copyright infringement and illegal sales of trademarked works; or is this similar to a tip jar for an artist with no fear of copyright? As far as I'm aware, (and their art pages have shown) they aren't copyright holders, nor are they working for a nonprofit.

How would be best to handle this?

Should I warn an artist of the risk for copyright, and to tell them to take action to protect their fan art?

I'm an author and editor myself, and I don't think that it would be wise to let it go unnoticed for fear of legal reproach. If my publishing company saw that, I'd imagine that they'd take it down asap...

I love their art, but don't want to see them sued. :/
Reply
:iconkirawra:
KiRAWRa Featured By Owner May 29, 2015
That is a very interesting question, and I have to admit that I am not entirely sure of the answer! It seems to me as though the person is offering the drawings as a reward, and is not trying to sell them outright. If people are donating, that means they are not directly purchasing anything. This may just be a clever work-around that the artist came up with to "sell" fanart, but Pokemon are simple and easy to draw, so I can see why the artist would choose to draw them as a reward if they needed to make and give away a lot of them.
Reply
:iconsillageuse:
Sillageuse Featured By Owner May 22, 2015   Traditional Artist
I was wondering the same thing. How is offering something without a price tag, but along something else you sell or gain money with, not commercial use? Like those Patreon rewards or even the 'giving it as a bonus to other commissions' way mentioned above?

Also, is making a direct profit from the fanart the only definition of commercial use? If someone uses fanart to gain widespread attention and to sell other (original) artworks, doesn't that infringe on the copyright holders of said fanart too?



But anyway, this post is really informative, thanks KiRAWRa!
Reply
:iconkaitoudark1:
kaitoudark1 Featured By Owner Jul 23, 2015  Professional Writer
Well, I filed a report for something similar to Nintendo of America recently; and as a result, they do plan to take action against it.
With that in mind, I'd say that any unauthorized use which has any sort of profit being made (be it directly, or indirectly), is a violation of law. So, to err on the side of caution, I now advise that people refrain from accepting donations for fan art (of trademarked/patented media).
Reply
:iconsillageuse:
Sillageuse Featured By Owner Jul 24, 2015   Traditional Artist
thanks for that insight! I thought so, commercial use can't only be direct selling, otherwise the laws would say "selling" is forbidden. But the term is broader than that. Cat nods 
Reply
:iconkansuo:
kansuo Featured By Owner Edited May 21, 2015  New Deviant Professional Writer
The only thing because I make a fanart, it is because I like a series, or an autor, and for fun, to relax.
Too, I can make FanArt as a tribute to a certain series, movie, etc...
Believe me or not, as I said, I do it for the love of that, nothing more.

I don't have interest on to sell something that it is not mine.

Just because:

A.- It isn't mine.
B.- It is like if someone catch one of your works and start to make them shirts, etc... Without your permission.
C.- Respect for the author and their work. 

I'd never see well that people who sell creations of other people (that they didn't created), but I don't tell them nothing. I assume that they are adults and they now what they are doing. Not trying to offense.
Reply
:iconflowerfreak:
FlowerFreak Featured By Owner May 20, 2015  Hobbyist Photographer
Who else gets a "kick" out of youngsters who take established favorite characters, change their colors and names, and calls them Original Characters (as if they created them) instead of Fan Characters? I don't think kids "get it". (I'm talking re-colors too. Especially anime and Sonic. Those get hit pretty hard. NOT very creative.)  Because of all the above in the journal, I stopped submitting Fan Art a long time ago. (the only one I did do was the Gallagher the comic drawing.)  Nice journal. Copyright infringement is such a bone of contention and a touchy subject. I see others on here selling fanart (they forgo the "Fan Art" category when submitting art...which whisks them right into the "sell this as a Print" option. Fan art omits this option for good reason. Someone always gets around this.) :no: I don't say anything to the sellers 'cause I know they won't listen.  $$$ speaks louder than conscience. :(  Also, a few DO have permission from the copyright holders to sell their art. But on this site, they are few and far between, so it's always easy to assume they do it without permission.
Reply
:iconkirawra:
KiRAWRa Featured By Owner May 21, 2015
What you have described is certainly a big part of the reason why it is so difficult to find accurate and consistent information on copyright law. "Fanart" is a very broad term than can include amateur recolors all the way up to professional illustrations and interpretations, and I certainly wouldn't blame anyone for not comprehending all the subtleties of it. Sometimes people just genuinely do not know or understand what the problem can be with selling fanart. Thank you for taking the time to read this journal, but you should not assume that every fan artist is hopeless ;)
Reply
:iconflowerfreak:
FlowerFreak Featured By Owner May 23, 2015  Hobbyist Photographer
I don't think fan artists are "hopeless". I love fan art...much of it, derivative works, are very imaginative. I guess it's just the sticky wicket that is copyright that many don't understand. I used to think it was straight forward: as soon as something is down on paper or recorded, etc. it is automatically copyrighted. I couldn't believe that. Too easy. I went ahead and had my creations registered in 2000. Before I knew what copyright rules were. Oh well. ^^;
Some years ago DA put up a video that was shot at a convention (?): the theme of which was "Fan Art is Illegal". Huh? That was a long but interesting video. And scary. So I stopped doing Fan Art. I took all mine down and Watchers left. (some left DA anyway) That kinda hurt knowing I was only Watched for Fan Art but that's life. :-)
Reply
:iconkirawra:
KiRAWRa Featured By Owner May 29, 2015
Aww, that is unfortunate that you got frightened into taking all your fanart down :C I try to avoid that with my guide, but I know that copyright laws in general are pretty scary. You should feel free to draw whatever you like! Even if it is fanart! Just be careful if you try to sell it ;)
Reply
:iconluigipunch:
LuigiPunch Featured By Owner May 15, 2015  Hobbyist General Artist
"there will never be anything as beautiful, inspiring, creative, or imaginative as true originality." Uhhh, I don't really see how drawing inspiration from something else lessens it's beauty, inspiration, creativity, or imagination, but great info nonetheless. It's actually a lot less strict than I would have expected.
Reply
:iconquietprofesional:
QuietProFesional Featured By Owner May 7, 2015  Professional Writer
Very informative, a lot I knew, some I didn't. Well worth the time you took to make this.
Reply
:iconkirawra:
KiRAWRa Featured By Owner May 11, 2015
Thank you! And thank you for taking the time to read it
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:iconquietprofesional:
QuietProFesional Featured By Owner May 11, 2015  Professional Writer
No probs.
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:iconwithersandwings:
WithersandWings Featured By Owner Apr 23, 2015  Hobbyist General Artist
Okay, so lately this whole fanart concept has been scaring the living daylights out of me! I am planning on attending my first con as a vender in August, and if I could pick your amazing brain for some knowledge and advice that would be great!
1) So, I was already thinking about the "I'll just offer it up as a freebie" method, and you mentioned small things like pins and stickers, but are prints still okay?
2) If I do portraits of REAL actors and/or actresses, but they are in the costume of their character, is that infringement, and if so, how do I or can I avoid it? (My art teacher is under the impression that if I use my own reference, like a screenshot from the show or movie, that I take myself, then I am okay to use a portrait like this, and claim it as my own. Is that true?) Currently I have a Luna Lovegood and a Daenerys Targaryen. I used references from Google, but did not trace any aspect of either one. Are these two protected?
3) How difficult would you consider obtaining rights for yourself? I'm sure it varies on the company...so for example, would Hasbro be easier to obtain rights from than Disney? (I am under the impression that they would be, but I want a more knowledgeable opinion.)
4) Do you know how expensive it is normally? Again, I know it varies, but let's use Hasbro and Disney as our examples again. Would I pay a flat fee, or do they take some of my profits, or do companies do both?
5) So creating cosplay accessories is considered legal?
6) About OCs, you could also run into some infringement of the art style, as far as I've read; if it's from a specific franchise, how would I avoid that (especially things like specific anime styles)? Normally I try to emulate the show's art style with my OCs so that it is believable that they are from that universe. That could easily turn into a problem, couldn't it?

At any rate, thank you so much for your time and devotion to this! I believe it is important for us artists to stand united! So I just don't want to step on anyone's toes. Your journal, and my research makes me feel like I can successfully do both. So thank you, thank you, thank you!
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:iconkirawra:
KiRAWRa Featured By Owner May 1, 2015
I'm sorry the convoluted world of copyrights has been giving you trouble, it certainly is quite scary when trying to make sense of it all! Despite all the horror stories though, the large majority of people do not ever run into trouble as long as they are creative and respectful with what they sell.
1. I mention pins and stickers specifically because those are small, inexpensive items that would not amount to much of a profit loss to the artist. Giving out things for free means you need to make the money you spent on those items back in other ways. You can certainly giveaway anything you like for free, but smaller items are more cost efficient for the artist. Small prints would work just fine as well, it all depends on your budget and profit margin.
2. In this case, it may just depend on the subject matter of your drawing. Are you focusing on the character the actor is portraying, or are you focusing on the actor themselves? Perhaps both? People are essentially copyrighted to themselves (you own yourself), so you'd want to contact that particular person to ask about profiting from their image. If you are focusing on the character though, you might want to contact the film production company. As far as being "protected" goes, that is all up to interpretation.
3. I have never personally attempted to contact someone for copyright information (I don't generally draw a lot of fanart, and even when I do, I'm not in the habit of selling it). Some companies, usually the larger ones, have an entire PR department dedicated to taking such questions. I would expect Hasbro and Disney to be able to get back to you quickly as long as you present your question professionally. I've heard that foreign companies such as anime and manga publishers who do not have an American representative can be exceedingly difficult to contact, as they do not have quite the same laws about copyright infringement. It is always best to try and contact people as soon as possible as it could always take them a long time to respond.
4. Any one of those options could be possible. It all depends on the policies of the copyright holder and whether they allow the selling of fanart at all. To be honest though, I'm not sure a large company such as Hasbro would even care about a percentage of profits from a convention artist/hobbyist, hehe. That really only applies to HUGE print runs, large dealings where upwards of thousands of dollars are earned, or reproductions of copyrighted art instead of artist interpretations.
5. Creating fanart of any medium is generally considered legal. Unless what you make is so attrociously offensive or completely copied/ripped off someone else entirely, simply making things won't get you into trouble.
6. You could potentially run into a problem, yes, but you cannot copyright an art style. Though I believe you can actually trademark it, haha. As to how to avoid that, I'm not entirely sure. It depends on how original the show's art style is to begin with. Most anime follows the same basic principles of animation style, but something like the Simpsons is very stylized and recognizable.

You are very welcome, thank you for taking the time to read into all of this and stay informed! I am no copyright expert, but I do hope I helped a little.
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:iconwithersandwings:
WithersandWings Featured By Owner Jun 8, 2015  Hobbyist General Artist
Thank you so very much! This helped A LOT! Sorry it took me forever to get back to you as well! I was SOOOOO busy with school I barely had time to breath!!!!
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:iconkirawra:
KiRAWRa Featured By Owner Jun 10, 2015
You're very welcome!
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:iconbtrav77:
btrav77 Featured By Owner Apr 17, 2015
WOW what an outstanding help this is. I always want to be honest in selling my brothers artwork. I have a question for you, as I am completely unfamiliar with this "Fair Use" talk etc. For instance, we want to do a Star Wars piece of the new character from the brand new star wars movie. For one of the highest grossing franchises of all time, jus it illegal still to sell original artwork prints of this character? If the artwork is your own interpretation, does that change anything? How do I go about getting an official response from LucasArts or whomever that it is OK to do this? I guess what I am asking is, is there something I am missing which would make this a lot easier, i.e. whatever the "Fair Use" concept is….(I am hopeful that because some properties are worth bajillions of dollars that me making 100 bucks off of my brothers artwork is somehow legal?) Thanks for any help[!
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:iconkirawra:
KiRAWRa Featured By Owner Apr 17, 2015
Fair Use is a claim against copyright infringement. It is basically what it sounds like: when you use something belonging to someone else in a "fair" way. What is considered "fair" can vary a lot, which is why copyright law is so hard to understand and follow. Let's use a book report as an example. If you were writing a book report, you would undoubtedly need to include the title, author, and passages contained within the book for your report. You would be using parts of someone else's writing to create your own interpretation. Now, imagine if the author claimed that you using part of their literature in your book report was copyright infringement! You could claim that what you did falls under "Fair Use", and thus is not infringing on copyrights. A book report could be considered "Transformative". By adding your own analysis, views, and writing to your book report, you have added new content to the writing, and thus created a new work.
Many different kinds of art can be transformed in this way. You take someone else's photos to create your own collage. You take someone else's music to create your own remix. You take someone else's character to draw your own interpretation. There are many cases in which people should be able to use and expand upon other people's work and ideas safely, to continue building new and creative things, and that is what Fair Use is for.

The amount of originality, and the intent of your creation are determining factors in what is considered fair use and what is not. There are many arguments both for and against the selling of fanart. Sometimes, the bajillion dollar companies are the most frugal about it, too. There are quite a few horror stories about the Monster energy drink company suing the heck out of anyone and everything simply using the word "Monster" in their name, even if it has nothing at all to do with drinks (one was actually a monster-themed golf park! Really!). That is why it is best to acquire permission ahead of time if you plan to do anything that might weigh against a Fair Use claim, such as profiting from the artwork.
As for contacting the copyright holder, there are several links throughout the guide above for locating copyrights and how to request permission.
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:icona23spyro:
a23spyro Featured By Owner Edited Apr 13, 2015  Hobbyist Digital Artist
Another important question I must ask. I've created musical remixes in the past using third-party material (movie scores to create a riff sound) and I need to know the truth about something. 

cowkitty.net/post/78869649107/…

Cowkitty's artwork (fan-art of Daphne from Dragon's Lair) was used in Anita Sarkeesian's videos without her permission, but Jonathon McIntosh states that's it's not theft when it's remixed.

"One of the biggest misunderstandings about 'Fair Use' is the mistaken belief a remix must be strictly noncommercial. This is false"

Is this true?

I also must mention a musical artist named Nick Bertke (POGO). He creates trippy remixes out of third-party material without permission and his agent states "It's not just 'Fair Use' it's promoting the original (older) source material"  

www.youtube.com/watch?v=pAwR6w…

Is this true?

Is this Transformative?

I know it probably is... but I just need to triple check. I'm talking about music

I also must mention what happened to him here 

en.wikipedia.org/wiki/Pogo_(el…

read the part "
Personal life"
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:iconkirawra:
KiRAWRa Featured By Owner Apr 13, 2015
First of all, I'd just like to state that I am not a copyright expert. I have never had any studies or training in copyright law and I am not officially qualified to answer questions regarding advice or judgement on copyright infringement. All information presented and discussed here comes from my own personal research and understanding of American intellectual property laws, and no one should be seeking definitive knowledge or legal advice from me alone.
Moving on.
First of all, I do not understand what "fair use" has to do with the usage of a drawn artwork in a musical remix compilation. Those are two completely different things, used in two different ways. If the artist of the drawn artwork does not want their image to be used in the video, then the artist has all rights and purposes to demand the removal of the image. "Fair Use" does not mean you can take anything you want from other people and use it for any non-profit endeavor you please.

"One of the biggest misunderstandings about 'Fair Use' is the mistaken belief a remix must be strictly noncommercial. This is false"
Is this true?


A plea for Fair Use is generally more favorable if the usage was for non-profit, but for-profit usages have, on occasion, passed as acceptable under Fair Use. The opposite is true as well though, even if you are not profiting from the usage of someone else's content, it doesn't mean you are automatically protected under Fair Use.

"It's not just 'Fair Use' it's promoting the original (older) source material" 
Is this true?
Is this Transformative?


I would personally consider music remixes to be trasformative, but as for "promoting" source material, it is up to interpretation. Remixes certainly bring attention to it, but to "promote" infers a positive reception, and not everyone may view the out-of-context chopping-up of their original soundbites as "promotional". Some musicians could view it as a bastardization of their original content. And like I said previously, just because you've used something in a non-profit way, does not mean you are automatically protected under Fair Use.
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:icona23spyro:
a23spyro Featured By Owner Apr 14, 2015  Hobbyist Digital Artist
I understand. Thank you very much
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:iconkvnmrtnz:
kvnmrtnz Featured By Owner Apr 11, 2015
Hi:) I was wondering If I download a stencil already outlined and ready to cut from Google images, would painting the pattern onto a canvas and selling it be considered illegal?
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:iconkirawra:
KiRAWRa Featured By Owner Apr 11, 2015
That would depend entirely on what the terms of the stencil images are :) There are a lot of stock stencil and clip-art places that allow you to use and resell the images for free, and there are others that you might have to buy. Just make sure to read the terms of the images, and I'm certain you'll find what you're looking for.
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:iconseaia13:
Seaia13 Featured By Owner Mar 28, 2015  Student Traditional Artist
If I traced from an existing comic book cover and created an original piece of stencilled poster artwork, do you think I could legally sell the posters?

I think I might be stepping on some legal lines here...
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:iconkirawra:
KiRAWRa Featured By Owner Mar 29, 2015
Tracing from a comic book cover would go beyond fanart into the art theft realm... probably not something you'd want to do. There are however, plenty of awesome websites (and even stock accounts here on Deviantart) that offer stencil resources and clip art for free, that you are welcome to make into sellable art pieces!
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:iconclevlanders:
ClevLanders Featured By Owner Edited Mar 26, 2015  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.
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:iconkirawra:
KiRAWRa Featured By Owner Mar 29, 2015
I'm glad that this guide could be of some help to you! Thank you for taking the time to read and consider it for your commission guidelines :)
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: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:
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