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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:

Copyright Laws of the United States
• 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 August 13, 2015: PLEASE stop asking me if this or that is "illegal". As mentioned in the very beginning of this guide, I am not an expert on copyright law and it is impossible for me to straight up say whether something is legal or not since every fanart situation depends on a number of differing factors. I wrote this guide to help YOU decide what to do about selling or not selling your fanart. Please use this guide and the other available sources to come to your OWN conclusions. You are still more than welcome to ask questions, but please read the previous answered comments to see if it has already been answered first.

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…

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:
 
:iconomutsuotakuskymin:
OmutsuOtakuSkymin Featured By Owner Edited May 18, 2016  Hobbyist Digital Artist
Ever hear of a commission? We have the right for people to commission works of their fanmade OCs and such. Let's say somebody commissions me for a fanart of their Pokemon Pikachu character/OC. I receive profit from it. WE SHOULD HAVE THE RIGHT TO DO THAT. ANY OBJECTIONS TO THIS ARE BLASPHEMOUS TO THE MEANING OF ART. You sound a little like a dumbass in this 'guide'. 
Reply
:iconkirawra:
KiRAWRa Featured By Owner May 18, 2016
And you sound like you have no basis for the understanding of intellectual property. You have the right to profit from your artwork, there is no denying that. But when you profit from the property of characters or content that does not belong to you, you are infringing on copyrights by using content that you do not have the legal licenses to use. Nintendo owns Pokemon - they created Pokemon, they have trademarks and copyrights and licenses to use the likeness of those Pokemon. Drawing Pikachu in your own style does not automatically make Pikachu yours. You own the ART that you have made, but you do not own the CHARACTER that you have drawn, do you understand? If you make an original character and someone else comes along and goes "I like that character, I'm going to sell art I draw of them" then they are infringing on your copyrights. Someone cannot take your characters and use them or sell them without your permission. It works the same for ANY kind of art - you need to have permission to sell things if it includes content that was not made by you.
A fan-made character and OCs are different from licensed material, I have no clue whatsoever where you got the idea that this guide says anything against artists profiting from commissions of original characters.
Reply
:iconmeeshell-art:
Meeshell-Art Featured By Owner May 18, 2016  Hobbyist Digital Artist
I see fanart sold everywhere, I thought it was fine, to hear its technically illegal honestly really disappoints me, as the copyright holders could never live up to the expectations and desires we have, it's why we make our own designs, it's what WE want to see. 
Reply
:iconkirawra:
KiRAWRa Featured By Owner May 18, 2016
The border between it being 'fine' and 'not fine' is a complicated and difficult border to understand. From a copyright holder's perspective, I'm sure they know the majority of people are just fans expressing their interest in something, but when profit comes into the equation, a company actually does have to enforce their hold on their property, because if they don't, they risk of losing ground legally.
Reply
:iconmeeshell-art:
Meeshell-Art Featured By Owner May 19, 2016  Hobbyist Digital Artist
It seems they let it happen for the most part, take redbubble for example
Reply
:iconemmedraws:
emmedraws Featured By Owner Apr 13, 2016
Hi! I really don't know if someone already asked that (if yes, I'm sorry!), but I wanna make a webcomic about the members of a band who exists in real life (like a fanfiction) and if I sell art about my webcomic with their faces on it would be illegal? Or if I receive money from the views of the page that I will post, would be illegal? And if I have a patreon and wanna give art about the webcomic with their faces or a exclusive chapter of the webcomic (containing their faces) as a reward, would be illegal too? Cause I would receive money for my patreon but they wouldn't pay for the art... I'm really insecure about this hahaha (sorry for my English!)
Reply
:iconsaltantan:
Saltantan Featured By Owner Apr 4, 2016
Umm... Sorry to bother you, but I want to ask about some things

1. If I want to get a permission to gain profit of my fanart from the copyright holder, and the character is from a comic/manga, should I contact the publisher which publish the comic, or the one who made the comic, or both?
2. So yeah these days there are lot ways people gaining profit from their fanart. I want to ask two things about it:
 a. If someone open a commission in DeviantArt for example, and their commissioner/client orders a fanart but they pay with DA points, is that infringe the copyright?
 b. Do you know Patreon? I saw many peoples use their fanarts as their Patreon reward. It could be they offering PSD/JPG, drawing process video, step-by-step shots, or other things that contain a copyrighted character. If they haven't given a prior permission from the copyright holder, is that also infringe the copyright? Even just for the drawing process video?

Sorry for my bad English! Thank you beforehand~
Reply
:iconnoblevalerian:
NobleValerian Featured By Owner Feb 1, 2016  Professional Digital Artist
Reader beware!  This article is filled with poor sources and false information.  It claims to be sourced from US Law and there is not one legitimate legal reference used.  That said, the bulk of *most of it* is *generally* in the right ball park.  Important things to note.  It is unclear to me why cosplay is under a "non-issues" category, it's as much copyright infringement as any other unauthorized IP use.  Most importantly, derivative work is an exclusive right of the copyright holder.  Derivative work has nothing to do with fair use, much like parody, and your derivative work of an intellectual property is absolutely *not*, in any way, protected by fair use.
Reply
:iconkirawra:
KiRAWRa Featured By Owner Feb 1, 2016
You know you're more than welcome to share some sources & information, contribute to this guide, or even write your own instead of trying to bash on something I worked hard on purely to try and help people.
In reference to the note on cosplay - it says in the guide "does not pose any more of a threat to copyright infringement than the other mediums do" meaning exactly what you've just said, "it's as much copyright infringement as any other unauthorized IP use".
No where in the guide did I say that derivative work is fundamentally protected by fair use. I put the both of them in two separate categories. In fact no where in the guide did I say any kind of fanart is protected under fair use, unless it was explicitly allowed by the copyright holder or ruled in a court of law (which again, is right in line with what you've just said).
This guide considers Parody and Fanart to be two distinct things, with fanart directly sourcing IP, and Parody bringing to mind the reference material, possibly paying a homage to, but not directly copying or using any of the IP (a more in-depth definition here: www.lfiplaw.com/articles/trade…). In contrast, Fanart is almost always derivative.
Perhaps my organization and wording does not make my points in the guide clear enough, but I'm really not sure what you're taking issue with.
Reply
:iconnoblevalerian:
NobleValerian Featured By Owner Feb 1, 2016  Professional Digital Artist
My issue is that the things I'm commenting on weren't clear and the sources you've used are unreliable.  I absolutely respect and support the basic message of what you've shared but I want to help clear up a couple things I had issues with.  I'm definitely not trying to be combative, but if you present something as fact, it should have a reliable source, not links to a bunch of community driven interpretations.  I can be dramatic sometimes.

For a reliable resource: copyright.gov/title17/
Reply
:iconkirawra:
KiRAWRa Featured By Owner Mar 22, 2016
Thank you for the resource, I've added it to the article
Reply
:iconeximiusmax:
EximiusMax Featured By Owner Edited Jan 31, 2016  Hobbyist General Artist
Does art from a huge company like Nintendo or Sge acount? Because I find it a little odd that 75% of Redbubble.com is fanart. This also very helpful btw!
Reply
:iconkirawra:
KiRAWRa Featured By Owner Feb 1, 2016
Yes they count, because they still own rights to their IP (Intellectual Property). The reason you don't see people being shut down for selling fanart all the time is because:
- People generally do not make very much money from it anyway
- It would take a lot of time and resources for the company to track down and stop everyone who is selling fanart
- They would essentially be attacking their own fans and it could result in bad publicity
Thanks for reading!
Reply
:iconastralanomaly:
AstralAnomaly Featured By Owner Jan 28, 2016  Hobbyist General Artist
So if i draw mlp characters with more realistic horse bodies, and sell them do you think that would violate copyright laws?
Reply
:iconnoblevalerian:
NobleValerian Featured By Owner Feb 1, 2016  Professional Digital Artist
Changing the style would not affect whether it was copyright infringement, it would still be illegal to sell.
Reply
:iconkirawra:
KiRAWRa Featured By Owner Jan 31, 2016
Whether or not it violates any copyright laws would be up for debate, but I can say that I do not think you would really get into any trouble if you did that.
Reply
:iconmeadow105:
Meadow105 Featured By Owner Jan 27, 2016
That was really helpful! Thanks!
Reply
:iconkirawra:
KiRAWRa Featured By Owner Jan 31, 2016
you're very welcome, thank you for reading!
Reply
:iconsonicgirl018:
sonicgirl018 Featured By Owner Jan 21, 2016  Hobbyist Traditional Artist
i will hug u now Let me hug you! Natsuki Shinomiya (Super hug) [V1]  :3
Reply
:iconkirawra:
KiRAWRa Featured By Owner Jan 24, 2016
:hug:!
Reply
:iconwonderpland:
Wonderpland Featured By Owner Jan 21, 2016
So, If I were to make Star Wars fan art and sell prints, it would be okay? qwq Would it be okay to sell merch, like phone cases & stickers of my chibis/drawings (of Star Wars characters) in the future when I get the opportunity? I just don't want to be hunted down and sued... OTL
Also, this question isn't mandatory, but would you know how to get my art on prints and merch? qwq
 

My drawings aren't very pro, they're quite smol... 
Here are some examples:
wonderpland.deviantart.com/art… (Sehun from EXO)
wonderpland.deviantart.com/art… (Kylo Ren from Star Wars: The Force Awakens)
Reply
:icondcofjapan:
dcofjapan Featured By Owner Feb 19, 2016  Student Traditional Artist
Just wanted to add. Do not mess with Disney. Disney has the money to go after people if they choose.
Reply
:iconnoblevalerian:
NobleValerian Featured By Owner Feb 1, 2016  Professional Digital Artist
Selling prints of Star Wars fan art would be copyright infringement.  The more money you made, the more likely it is you'd be sued.
Reply
:iconkirawra:
KiRAWRa Featured By Owner Jan 31, 2016
I wouldn't outright say that it would be okay, I would rather say you most likely will not get into any trouble by selling your art.
You can get your art printed on a menagerie of products by utilizing websites such as Redbubble, Society6, Zazzle, Teepublic, Design By Humans, etc. Some of these places may have stipulations about selling third party content, though.
Reply
:iconcutekirby:
cutekirby Featured By Owner Jan 18, 2016  Student Digital Artist
This is very informative and all and I thank you for that but how do you explain artist alleys at conventions that sell like 90% fanart? That is one question I never fully understood
Reply
:iconkirawra:
KiRAWRa Featured By Owner Jan 18, 2016
The contradictory thing is that everyone who signs up for Artist Alley must sign a form stating that all work sold must be of their own creation and IP (intellectual property). If they are selling something that breaks these terms (ie; characters and such that don't belong to them), they can be removed from the convention! Though obviously, you can see how removing a large portion of their sellers can damage the convention's funds and reputation. It has become a routine of "if no one complains, then we'll just let it happen", plus the convention cannot accurately investigate every single one of their sellers to make sure they have permission from copyright holders of all of their fanart. They can just assume that when people sign the conditions, they have proper permission to sell their wares. And some people have gone through the effort to get permission! Probably not the majority, though. Most people are not making ridiculous sums of money at Artist Alley, so copyright holders probably don't feel threatened enough to take action - they would, afterall, essentially be attacking their own fanbase.
It is also a matter of something previously stated in other replies - it can be argued that something as simple as interpreting a character into your own style can turn a work of fanart into a protected and original piece under the "transformative" definition.
Reply
:iconnoblevalerian:
NobleValerian Featured By Owner Feb 1, 2016  Professional Digital Artist
The word "transformative" is not a word, and does not exist in copyright law.  In several hundred pages of documentation, the word transform is mentioned only one single time, in one single form - "transformed".  It's in reference to derivative work, which is an exclusive right of the copyright owner.  Changing the style of a copyrighted character will *not* make it a legal use.
Reply
:iconkirawra:
KiRAWRa Featured By Owner Feb 1, 2016
You are correct, a transformed piece is still a derivative work. "Fanart" isn't a word and does not exist in copyright law either, but you must understand that I'm trying to define and explain things in the best way that I can, since 15 year olds who want to sell their anime drawings at artist alley don't have the time or understanding to sift through "several hundred pages of documentation". Transforming a work does and can contribute to a fair use claim, and criteria that define a transformed work can include interpretation of a character in a different style. I did not and would not say that drawing things in a different style magically make it a legal use, but it contributes to making it a transformed work which could potentially remove it from liability of copyright infringement (en.wikipedia.org/wiki/Transfor…).
Reply
:iconnoblevalerian:
NobleValerian Featured By Owner Feb 1, 2016  Professional Digital Artist
In regards to transformed and derivative work, as I mentioned, that's an exclusive right of the copyright holder.  It's not a case for fair use.  When considering fair use, the law talks about the purpose, nature, and effect of the work.  The amount to which it differs is important to copyright because of how clearly stressed it is in the copyright owners rights, not fair use.  It would be extremely misleading to suggest that changing the style of a work would contribute to fair use.  The extremely fallible courts and their erroneous opinion in certain cases should also not receive a great deal of weight.  When we look at those cases, and the importance of the "transformativeness" of the work, we're actually talking about how the new use or interpretation changes the purpose/nature of the work, not it's style or medium of expression.  Your link reveals examples that stress a work going from expressive to instructional, how the purpose changes from commercial to informative.  Selectively identifying and manipulating portions of these cases out of context contributes to the misinformation perpetuated by those who want to defend their infringing behavior.  It's important to address this topic to help stop these myths from perpetuating.
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:iconnoblevalerian:
NobleValerian Featured By Owner Feb 1, 2016  Professional Digital Artist
Commercial use of intellectual property you don't own is copyright infringement.  Your style or interpretation is irrelevant.
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:iconkirawra:
KiRAWRa Featured By Owner Jan 16, 2016
This is the exact question that plagues the entire debate over fanart. As mentioned throughout the guide and in answer to multiple comments here, there is no definitive line separating what is okay to sell and what is not. You must look at the circumstances and make your best guess, or attempt to contact the copyright holders. Some people argue that simply interpreting a character into your own style adds enough original content for it to be protected under the "transformative" category, while others disagree, saying that using the smallest likeness of a character can be considered copyright infringement. Undoubtedly, corporations have the money and the power to be able to challenge anyone, so even if you feel like your work is unique and original enough to be transformative, you would still want to be careful about profiting and marketing.
I seriously doubt you or anyone else will ever run into any trouble as long as you are respectful with your art, don't try to encroach on the copyright holder's market, and don't attempt to profit heavily or mass produce your fanart.
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:iconnoblevalerian:
NobleValerian Featured By Owner Feb 1, 2016  Professional Digital Artist
Commercial use of any intellectual property without consent is copyright infringement, it doesn't matter if everything is drawn by you.  Commercial use is also not limited to "monetization".  The publication and distribution of fan art is also illegal.  As mentioned, the less you profit, the smaller the target you are.
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:iconnoblevalerian:
NobleValerian Featured By Owner Feb 1, 2016  Professional Digital Artist
Cool beans!  :D
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:iconkirawra:
KiRAWRa Featured By Owner Jan 16, 2016
Despite what others have said, the definitive legality of it is in question. It is impossible to say whether something is or isn't okay without input from the owner of the copyrighted material. Just because a large majority of people get away with it does not automatically make it okay or even legal (but of course that is where the debate comes from). Using images unaltered from the source material is sure to up you a few points into dangerous territory. I would much rather you conclude that when monetizing fan art, you are less likely to get into trouble as long as everything is drawn by you, no official image is present and you say that the characters are property of their owners, rather than is it okay, so as not to imply legality.
Thank you for taking the time to educate yourself on this very complicated subject!
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:iconkirawra:
KiRAWRa Featured By Owner Jan 18, 2016
Hey, it worked for 50 Shades, didn't it? XD
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:iconshibblesgiggles01:
shibblesgiggles01 Featured By Owner Edited Jan 1, 2016  Student Artisan Crafter
Hi, I have a small situation that I hope you don't mind me asking your advice on, recently  this week in a mall, I came across a used retro video game store and I noticed a lot of fanart, I found out that local artists sell their art to the store for and the store sells it, some of the art was good but some was just regular sketches, anyways the clerk told me there was a spot open for another artist and that it might be possible for me to have that spot. Would it possibly be legal for a game store to sell fanart? Or should I ask the store themselves if it's legal for them to sel fan art? I'm just mainly asking this because I'm thinking of selling them some of my fan art, but I don't want to end up breaking any laws in the process.
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:iconnoblevalerian:
NobleValerian Featured By Owner Feb 1, 2016  Professional Digital Artist
It's highly unlikely they've acquired proper licenses are are most likely infringing on copyright.
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:iconshibblesgiggles01:
shibblesgiggles01 Featured By Owner Feb 1, 2016  Student Artisan Crafter
Ok
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:iconkirawra:
KiRAWRa Featured By Owner Jan 4, 2016
This mirrors the "convention alley" situation almost exactly - arguably they're not supposed to do it, but it's on such a small scale that it doesn't really have much impact, so no one is really batting an eye. I would recommend you ask the store if they have the rights & permission to sell what they are selling (which is a very reasonable question to ask about any product you see in a store), and then base your decision off of their answer. Perhaps the store is trying to promote small-time artists, while also promoting themselves by having and selling art that no one else has access to. I would also suggest you look closely at the store's terms, to see what their policies are on ownership and reproduction rights over your art.
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:iconshibblesgiggles01:
shibblesgiggles01 Featured By Owner Jan 5, 2016  Student Artisan Crafter
thank you for your response, I talked to a store worker today on the phone, I asked him if they have the right and copyrights to be selling fan art in their store and if it would be safe from the companys that own those characters and games. The persons response was to me that it was ok to sell fan art in their store because everyone does it online and in conventions, I asked him if it would be safe to sell my art there and he said it would be ok. I'll take a look at what you said about what their policies would be on ownership and reproduction rights over my art.
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:iconnoblevalerian:
NobleValerian Featured By Owner Edited Feb 1, 2016  Professional Digital Artist
That store worker is an idiot or a liar, be cautious.
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:iconshibblesgiggles01:
shibblesgiggles01 Featured By Owner Feb 1, 2016  Student Artisan Crafter
Thanks, I will be
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:iconjabbathemutt:
jabbathemutt Featured By Owner Jan 1, 2016  Student Digital Artist
im s-cared of copyright help me
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