Fan Art and Copyrights
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Astralseed's avatar
By Astralseed   |   Watch
50 26 763 (1 Today)
Published: January 25, 2020
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Copyright Weekend


Hello all,
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).  

In Closing.. 


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.  

 


Comments26
anonymous's avatar
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Bookworm86's avatar
Bookworm86Hobbyist Photographer

Just curious, what is the best way to reach out to the copyright holders? For example, disney, dreamworks, and BBC shows/movies? Nice article!

jettmanas's avatar
jettmanasProfessional Filmographer

Good article.

I wonder how people donating DA points to you falls into that.

Not selling as much as they want to give something.

Astralseed's avatar
AstralseedProfessional General Artist
hmm, now I am wondering the same.
Shayla-Estate's avatar
So many times when I'm at one convention or another I've had the thought cross my mind "I wonder if they have permission to use that?" when viewing an item with a copyrighted image/logo on it. Admittedly, I have still bought some of those items (mainly art), because I enjoyed the piece and it's hard to know if they had permission or not without asking. Some people in the Artist Alley though do have their credentials posted like "commissioned by Wizards of the Coast" or such.
Etsy is also a bad place about using copyrighted images/logos. 

*Also, love the crackling VHS gif. That takes me back to my childhood.
Astralseed's avatar
AstralseedProfessional General Artist
Sometimes the fan art merch is nicer than the official merch and it's a real conflict!  
Shayla-Estate's avatar
Or just so much more original with more feeling and not the "cookie-cutter" pieces offered through official merch.
DaughterofSachmet's avatar
DaughterofSachmet Artisan Crafter
Great article, very clear Nod 
Astralseed's avatar
AstralseedProfessional General Artist
Thank you!
Grimmstein's avatar
GrimmsteinProfessional Digital Artist
:heart::heart::heart: 
And I thought I was insane for parading around with that mindset around my artist friends who think otherwise.
Astralseed's avatar
AstralseedProfessional General Artist
You're definitely not insane for that :heart:
BATTLEFAIRIES's avatar
What a wonderful article, nicely done!

I think correctly informing budding artists of their rights and responsibilities should happen more on this site: so many people in here take their first steps to professionalism here and they risk getting things wrong from the start with all the misconceptions that abound. Not to mention new artists will risk not sharing their work at all for fear of their rights being infringed, and that's a shame.
Astralseed's avatar
AstralseedProfessional General Artist
I fully agree.  I think that's why I like projecteducate so much too, because it does help to educate people.  I wish it reached more people though.  
CalidaKaija's avatar
CalidaKaijaHobbyist Digital Artist
I see so many selling off home-made things of copyrighted Canon characters ALL the time. Drives me crazy knowing the copyright holders aren't getting their share due. You can't even buy a cake with a character on it unless the bakery bought a license to use them, so why should people profit off unoriginal work, and many without paying taxes on it?
Astralseed's avatar
AstralseedProfessional General Artist
It's always possible that they got a license from the copyright holders and are selling those items legally.  
CalidaKaija's avatar
CalidaKaijaHobbyist Digital Artist
But it's very rare someone who is a casual crafter to be able to afford it. And they never show proof.
TomboyJessie13's avatar
TomboyJessie13Hobbyist General Artist
But of course, I had a hand at fan art for years, namely Kingdom Hearts, Evillious Chronicles(+ Vocaloid), Sailor Moon, and Steven Universe.
Plus I had no use for selling Fan Art anyways since like you said they're copyrighted, except during one Art Hop when my maternal Aunt bought my drawing....is it ok if the buyer's a relative?
Astralseed's avatar
AstralseedProfessional General Artist
Technically no.  However, I doubt anyone is going to take you to court over it.   
TomboyJessie13's avatar
TomboyJessie13Hobbyist General Artist
Well true, I mean it's just my Aunt after all.
TheVictorFoxMan's avatar
TheVictorFoxManHobbyist General Artist

There is another option if someone does an unwanted fanart of your work and you don't like it...

Say your child character was featured in an NSFW image and you're really upset but not feeling confident enough to confront them... You could go to the DMCA about it, or to the DeviantArt mods here... OR you could try to resolve the issue amicably before calling in the big guns by asking for help from a trusted friend.

Regardless if it's the author giving a friendly warning that the fanart is unwanted, or a fan, such a warning should be considered and the fanartist should contact the original creator to verify where they stand.

Then if that doesn't work, calling in the big guns won't seem like overkill by the public as you tried to resolve this amicably, even if indirectly.

Astralseed's avatar
AstralseedProfessional General Artist
It's usually best not to involve extra people if it's not necessary.  While you're right that your friends can speak to them for you, more often than not the friends tend to say things which escalate the situation rather than defuse it.  In such cases it's much easier to just fill out a DCMA notice and send it off.  
TheVictorFoxMan's avatar
TheVictorFoxManHobbyist General Artist

True, won't deny that fact.

CapnDeek373's avatar
CapnDeek373Professional General Artist
Fan art is one thing. And I've seen lots of great fan art on this site.
(I run a couple fan art groups in fact.)
As somebody who's worked with copyrighted material, I kinda know what goes and what's a no-no.
I've worked with Disney licensing and Harley-Davidson licensing  in the children's clothing business.
But I also a lot of things that are basically screen lifts and things like that and posted here.
Besides the fan art there's lots of things here that's basically just ripped off downloads from the 'net and posted here.
They use dA as a storage dump.
All that being said, there's really no way for anybody here to report serious copyright violations.
We're told that the complainant has to file their own DMCA takedown notice.
Astralseed's avatar
AstralseedProfessional General Artist
I think that's an entirely different issue.  But while we are on that issue, I actually support that DA asks that the copyright holders submit DCMAs to have work infringing on their IP removed.  
Legally only the copyright holder or their representatives can file DMCAs so we all know we can't file those to get work we know or even just assume to be ripped.  But then also consider if we didn't have those protections..  Someone dislikes your art, or something you said, so they get a wild hair up their butt and start reporting all your art as copyright infringements.  You wake up and BAM your gallery is empty!  

I don't think there is a problem with people reaching out to the copyright holders and if they want to persue it they can.  If they don't oh well.  If the copyright holder doesn't care, why should anyone else?
There's enough ripped art being uploaded all over the internet (not just DA) to try and lose sleep over it.  
CapnDeek373's avatar
CapnDeek373Professional General Artist
I'm only saying that there should be a way for us to report things to be looked into.
anonymous's avatar
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