Update notice as of January 17, 2013: I have given this guide a MAJOR overhaul. It was originally written over a year and a half ago, and since then my own views and understanding of copyrights has changed. I felt that this guide should reflect those changes, so if you read this guide in the past, please take a moment to look through it again as I have added MANY new topics, information, and sources. Unlike my first draft, I have also changed my viewpoint to neutral throughout this writing.
Disclaimer: I am not a lawyer, nor any kind of professional that works in dealing with laws or copyrights. This guide was written based on my own research and understanding of copyright laws, and from discussions with others knowledgeable of the subject. These facts are all sourced from U.S. law. I encourage others to do their own research and draw informed conclusions on how they would like to pursue the issue of selling fanart.
The Truth About Selling Fanart
Fanart is something you undoubtedly encounter on a daily basis while browsing the internet, Deviantart, and similar websites. We are all a fan of something, and "fanart" can be a great way for artists to explore artistically and bring fans together.
Fanart can be a tricky thing though, especially when it comes to selling it. There are so many artists out there that sell art of copyrighted material that it can be easy to get lost in the cloud of misinformation. This guide hopes to enlighten you to the truths and falsities about selling and commissioning fanart.
What is "Fanart"?
Fanart is a piece of art that contains a character, name, logo, setting, or any other content that is not owned by you (referred to as a "third party"). The third party content could be from a book, movie, cartoon, TV show, another artist, or a menagerie of other things. For example, if you like Harry Potter and decide to draw a picture of him playing Quidditch, this would be considered a fanart.
In reality, "fanart" is a very vague term, which is why it is often hard to find solid information about it. Most fanart is, in legal terms, what you would call "derivative" art. There are many different kinds of fanart, and many different kinds of derivative art. A piece of fanart may fit into one or many of the following categories:
• Derivative Works
Derivative works are created when an original work has been modified, creating a new artwork. A minimal amount of creative effort must be applied to an original work in order to consider it derivative, otherwise it is just a copy. Only copyright holders and those with permission granted to them by the copyright holder have permission to create derivative works based on the original.
Copyright for derivative works applies only to the creativity that has been added to the original. For example, let's say you draw some fanart of Pikachu from Pokemon. You didn't use any of Nintendo's official Pikachu art in your drawing, and you interpreted Pikachu into your own unique style. This fanart counts as a derivative work instead of a copy, because you have made significant creative changes to the original character. This means that the fanart you have drawn is copyrighted to you. However, you did not create Pikachu and so you do not own the copyrights to Pikachu used in your drawing. Technically speaking, this means the very existence of your fanart is infringing on copyrights, because you have used a character that you do not own and do not have permission to use. More so, this also means the selling and reproduction of this fanart would further infringe on Nintendo's copyrights.
Now that I've sufficiently frightened you, know that there is an exception to these laws of copyright, known as "Fair Use", which will be discussed more later on.
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…
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.
More info on parodies: en.wikipedia.org/wiki/Parody
Tips for creating a successful parody: www.lfiplaw.com/articles/trade…
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.
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.
More info on transformative works: en.wikipedia.org/wiki/Transfor…
"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.
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…
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
More info on Cease and desist orders: en.wikipedia.org/wiki/Cease_an…
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.
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…
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.
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.
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.
• 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…