as part of Copyright Weekend I am here to write about Fan art and copyrights.
Before we dive into the thick of it I want to take a moment to say that I am not a lawyer, nor have I ever gone to law school. This article is based entirely on my experience as well as common knowledge. If you feel you need legal advise in regards to copyrights surrounding Fan art, I urge you to reach out to an actual lawyer.
What is Fan art?
Fan art is art of copyrighted characters that is not created to be 'official' art.
If you draw some of your favorite characters from your favorite show, that is fan art. If the company who own the rights to the show contact you to create art for the show, or for any other kind of official use, that is official art.
Is it legal to create Fan art?
Without permission by the copyright holder you do technically run the risk of having your work removed. It is their legal right to ask for any intellectual property belonging to them be removed.
If you're a Tolkien fan artist you may understand this all too well unfortunately. Warner Brothers may have submitted DMCAs to have your Tolkien fan art removed from any sites you may have posted it to because the Tolkien Estate does not allow adaptations or derivative works in an effort to maintain the integrity of J.R.R. Tolkien's works.
Even big companies aren't exempt from the consequences of infringing on others copyright.
20th Century FOX has been sued a few times over Family Guy episodes. While the judge may have sided with 20th Century FOX in the 2007 lawsuit that the content was a parody and as such wasn't infringing on copyrights, the case still went to court wasting a lot of money and time on both sides.
Fortunately, most copyright holders don't mind the creation of fan art as long as they aren't being sold. In fact, some even welcome the creation of fan art since it helps spread awareness of their brand.
Blizzard Entertainment, for example, holds art contests fairly regularly.
Can I sell Fan art?
If you don't have a written statement, license or contract giving you permission to do so, it is illegal. I'm sure you've seen plenty of fan art sold, especially if you go to conventions. Chances are the vast majority of these sales are illegal.
Lack of education and enforcement of the laws seem to be perpetuating the problem in this area.
That being said, there are ways that selling fan art can be perfectly legal.
Redbubble has a Partner Program which allows artists to create fan art from certain brands and sell it on their platform, as long as all guidelines are being followed.
Teepublic, which is now owned by Redbubble also has a Fan Art Program.
Another good site for this is For Fans By Fans.
I imagine there must be other companies with these types of programs as well, so be sure to keep an eye out!
My Fan art got DMCA'd, what can I do?
First you can weep over the death of your upload. Once you're done weeping, take a deep breath. These things happen and they aren't usually the end of the world.
If you know you were infringing on their copyright, the best thing you can do is mourn the loss and let it go.
If you believe that you were creating your fan art in a legal way, you can file a counter claim to the DMCA takedown notice. If the copyright holder doesn't intend to escalate the matter and take you to court over it, your submissions should be restored after around 2 weeks of you submitting the counter claim.
Should you end up going to court over it, I suggest hiring a lawyer.
Someone else is creating Fan art of my Intellectual Property, what can I do?
If someone else is infringing on your copyrights by creating art of your characters you have a few options.
- If the work isn't hurting anyone, yourself included. My best advice is to enjoy it and show the artist some appreciation for loving your characters enough to create art of them.
Sometimes fan art that is created isn't quite what we'd like to see/read though. If you are displeased with your characters being drawn/written about in such ways or otherwise feel uncomfortable with the art remaining on the internet you have two options:
- If you don't mind confronting people directly and are able to stay level headed, you can first try contacting the person and asking them to remove the work of your character(s).
- If you aren't comfortable confronting others, or you don't feel you can remain level headed, you can file a DMCA takedown notice for the infringing piece(s).
Do make Fan art, but only sell it when it's legal. Don't be afraid to reach out to copyright holders to ask for permission either.