Fan Art Law
|13 min read
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Published: September 11, 2012







Fan Art Law


Mon Sep 10, 2012 by techgnotic












I

t seems there’s nothing quite as dear to the hearts of many of our deviants as their production of fan art, and at the same time, there is nothing so knotted with legal and ethical headaches. Imitation may be the sincerest form of flattery, but in the form of fan art it has also become one of the most frustratingly complicated. At some point, the sheer volume of fan art around a single property may become so large that the issue rises to another level of scrutiny by the creators of the original work.



With this dynamic in mind, we thought the following panel that Josh Wattles, our Advisor In Chief here at deviantART, and a mystery guest named Harold Smith, gave at Comic Con this year might be of immense help in understanding the ever evolving elements of fan art law.



Josh Wattles, makepictures is an expert on copyright law bringing perspective and experience to the issue from multiple creative industries. From art, film, music, and books, Josh has been directly involved in or advised on copyright issues for the biggest properties in the world. He is also a copyright professor teaching courses at at Loyola, Southwestern and the University of Southern California law schools in Los Angeles.











And for all of you Star Trek Fans out there, Josh was the first lawyer at Paramount Pictures to work with Gene Roddenberry on creating policy around the massive quantities of fan fiction submitted to Gene and to the studio some of which ended up as Star Trek stories published by Simon and Shuster.












Video by: toddgrossman & scottpagano







Interview withJosh Wattles







Should I worry about drawing or writing stories about characters from my favorite books, TV shows and movies?


makepictures:Not if it is a private activity.



Does whether I sell them or not make a difference?


makepictures:Yes. It’s not the best idea.







Can I copyright my own fan art which is based on already copyrighted material?


makepictures:It depends on how much of the original work you used and if the original work can be completely removed from the second work. When you file for a copyright you must disclose all pre-existing content that does not belong to you and you must have authority to use it. That’s a complicated question with fan art.









Different authors, artists and companies seem to have different attitudes about fan art, with some encouraging it and others forbidding it.  How can I find out which entities I might get in trouble with and who’s completely cool?


makepictures:You can’t unless you contact the owners yourself and ask. There are some situations that are ok because the owner is encouraging fan art, such as in contests.



Is there a list or index?


makepictures:No.






Am I responsible for other people circulating my fan art all over the Internet without my express approval or even my knowledge they’re doing it?


makepictures:Technically, maybe.



Are there websites I should familiarize myself with that explain how to stay “safe” within the bounds of “legal” fan art creation?


makepictures:
















2 QuestionsFOR DEVIANTS ABOUT FAN ART:






How do you feel when creating a piece of fan art or fan fiction around your favorite character or story?   







Is fan art a pathway in your evolution as an artist?









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Comments (2808)
FartingBoy's avatar
FartingBoy|Student Filmographer
*goes immediately to Nintendo's website to ask if they would be okay with me doing SourceFilmmaker animations*
Reply  ·  
Shanglon's avatar
After reading this article and the reply Josh Wattles gave to a user (more precisely Keriva) i feel much more relieved as i was thinking not to post anymore fanarts because they are technically illegal (you make a derivative work that is based on something created by another person without his/her permission) at least basing on the video linked in the journal and other sites i visited to gather info. Anyway i still prefer to contact companies of fandoms i am into to see how they see question (you can always find them and read their copyright policy) along with a specific legal advice to my lawyer because i want to have a wider and deeper understanding of the matter.

How do you feel when creating a piece of fan art or fan fiction around your favorite character or story?

I feel very refreshed in terms of energies and feelings and despite the feeling is almost the same i have when i create something original, i like to show my appreciation for the story/show/character etc. not to mention sometimes i like to play with ideas and personal concepts with the character him/her/itself but i always pay attention not to make the character out of character unless i want to make a parody or humourous piece but in this case i state explicitly in the description of fanart it's a parody or humourous work. Plus i see it a way to show this story that might be unknown to my watchers or people who know me. Recently i discovered a cool 80's dark fantasy work thanks to fanarts of a great Artist i watch here, so fanarts can be a powerful tool to spread knowledge and fun.


Is fan art a pathway in your evolution as an artist?

Yes and no. I explain myself better; yes because a fanart is also an artistic exercise that helps me to learn new styles (i.e. manga style) and fix artistic concepts in my mind. No because my main source of learning is from original works and inspirations i take from real world. I think a fanart can be a powerful and important pathway in an Artist evolution because just like you learn to ride a bicycle with the help of your parents you can learn basic concept of draw, style, proportions, colours, perspective from something made by another person. I think even creators of works we adore, made fanarts when they were kids or teens. It's a virtuous circle.

Reply  ·  
officialmaria's avatar
officialmaria|Hobbyist General Artist
I have a question, if you don't mind :)

"Am I responsible for other people circulating my fan art all over the Internet without my express approval or even my knowledge they’re doing it?
To this question you answered "Technically, maybe.
"

But let me ask you, how can someone control what other people are doing? Let's say I draw a fanart, not for money, just for my own pleasure, and someone takes it (without my permission or even my knowledge) and starts selling it. 
And there is no way for me to stop this from happening. Sure, I can try to talk with that person and convince her/him to stop selling but what if he/she doesn't listen to me?

So, why is this my fault? It's not me who's gaining money from this, it's not me who broke the rules and started selling, I just wanted to draw for my own entertainment with no thoughts of gaining money.

Would I be sued too along with the person who started selling against my will?
Reply  ·  
shootingslayer's avatar
I know it has been a while since this article was posted, but I still wanted to comment . it  some one made Fan Art and he say Do not reprint my work without permission and Do not edit my works can he do it he do not own original work.  and so can  i copy the Fan Art he made and make it  Different to is they ok  and who  own the copyright
Reply  ·  
Keriga's avatar
KerigaEdited |Hobbyist General Artist
I know it has been a while since this article was posted, but I still wanted to comment, so here I am... I've read this article and watched the video many times now (and done some other research on the topic, too), but this topic is still very confusing to me.

What confuses me the most about this, is what exactly is considered as "private use". Does posting fan art/ fanfiction to my Deviantart gallery count as "private use" or should I just keep my fan works stashed in my desk drawer/computer folder and not post them to Deviantart, where techically anyone can see them?

What about fan characters? Those are generally created by fans themselves, but they are often more or less based on of the fandom that they are a fan of. And, even if creating/posting fan characters on its own isn't considered illegal, is using the canon characters of the fandom in your work (for example, a part in a story where the fan character is having a conversation with a canon character) considered as illegal, since the fan here does not own the canon character or the series?

Also, another thing about the whole copyright law that puzzles me, is that how do I know which country's copyright law is to be followed? For example, I come from Finland, but since I am a huge fan of anime and manga, most of my fan works are about my favorite series/characters, which are protected by Japanese copyright law. But if I were to post my pictures to Deviantart, would that mean that the U.S copyright law would apply, since it is what the site works under?

I would never even want to make actual money with my fanworks, they are created simply because of my adoration towards whatever it is that I've made the artwork about. To me, creating fan art is simply a way to express my adoration towards the series, characters and its creator. Usually, I feel very happy about creating fan art and it has helped me to learn a lot about drawing and writing. The only thing about it that makes me sad is that since I don't want to find myself in any sort of trouble because of it, I don't post my fan art anywhere, even if there is a side of me that would like to share it with other fans of the series/characters.
Therefore, I post only my completely original work to my deviantart gallery. However, to educate myself, I'd still like to know what is legally okay and what is not when it comes to fan art.
Reply  ·  
makepictures's avatar
I'll try to give you an answer to each of your questions but please keep in mind that I cannot give you specific legal advice and if you have further questions or doubts about any particular application of these concepts to something you are doing or making, then you should really consult your own lawyer.

You wrote: "....what exactly is considered as "private use"......."
Posting to DeviantArt without placing the fan art into the print program or offering it for paid download is most likely a protected fair use.  It is similar to placing a single copy on a gallery wall.  But there are some assumptions built in to this statement.  The most important assumption is that the fan work (the Second Work) is not just a pure copy of something distributed by the original IP owner (the First Work) and that the Second Work adds its own expression and statement.  However, if the owner of the First Work files a DMCA takedown notice on DeviantArt, DeviantArt will very likely remove the work.  If that happens you would have an opportunity to contest it with a counter-notice but before doing that you would really need legal advice.  You can read about the DMCA process in our Copyright Policy: about.deviantart.com/policy/co…

You wrote: "What about fan characters? Those are generally created by fans themselves, but they are often more or less based on of the fandom that they are a fan of. And, even if creating/posting fan characters on its own isn't considered illegal, is using the canon characters of the fandom in your work (for example, a part in a story where the fan character is having a conversation with a canon character) considered as illegal, since the fan here does not own the canon character or the series?"
Creating new characters to interact with the cannon or bringing in characters from some other property is in effect producing a derivative work based on the First Work.  The right to create a derivative work is an exclusive right of the copyright owner of the First Work.  So, your activity would have to be considered a "fair use." If there is no commercial exploitation of the Second Work and if the context of its display clearly defines it as fan work and if the Second Work is essentially respectful and if the Second Work is a not a direct copy of the first work or of other third-party works and the the Second Work makes its own statement, the Second Work is likely to qualify as a fair use.

You wrote: ".....how do I know which country's copyright law is to be followed....." In your case for content posted on DA it would be Finland (assuming you also live there) and the United States.  Both of these countries have international treaties under which their general copyright laws are very similar.  The United States law would apply to DeviantArt's activities.  Finish law would not apply to DeviantArt although DeviantArt might choose to respect its laws.  Japan is also a member of the same international treaties and so the works of Japanese artists and companies are fully protected in both the United States and Finland.

You wrote: "Usually, I feel very happy about creating fan art and it has helped me to learn a lot about drawing and writing."
Please continue to express yourself in ways that feed your creative energy.  Copyright laws are supposed to encourage authorship and creativity for the benefit of the society at large and it would be very sad if these laws stopped artists like you from doing the work that inspires you.
Reply  ·  
Keriga's avatar
Keriga|Hobbyist General Artist
Thank you so much for the explanation, I think I got it now :D
Reply  ·  
KDJ-Imagery43's avatar
KDJ-Imagery43|Hobbyist Photographer
Concerning "fan-art", I have done some oil pastel paintings of works that were created prior to 1920, like the one in the link below. I've heard that artwork like this doesn't infringe on any copyrights due to the signing of the "creative commons" law that was passed indicating that if such work was done prior to the 1920s, it was okay to copy it without any penalty's. Can anyone please provide any help concerning this? Please send me a note and let me know. Thanks!
Keith J.
  kdj-imagery43.deviantart.com/a…
Reply  ·  
CatrionaLeo's avatar
CatrionaLeo| General Artist
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MissLittleTilde's avatar
MissLittleTilde|Hobbyist General Artist
Thanks
Reply  ·  
bloodysun's avatar
uh I wanted to upload some of my stories (funfictions), but reading this I don't really know if I can do it.
Reply  ·  
bluerosekatie's avatar
bluerosekatie|Hobbyist General Artist
From what I've been reading here, as long as it doesn't directly copy the original work and you treat it respectfully, you are fine putting your fanfiction up.  Especially if you cannot get paid for it.
Reply  ·  
MikeCone69's avatar
Nobody gets arrested for fanart unless they're a commercial company making/stealing lots of money, say 10K+, and piss off the wrong company. You wouldn't get sued for pirating Splatoon, but perhaps you would for an EA game; You might get sued for selling pictures of the Imp from Dungeon Keeper, but perhaps not for pictures of Pikachu from Pokemon. Don't do it out of spite for nicer companies or you'll get screwed. It's illegal like connecting to open wifi, but who gets arrested for it?

tl;dr you won't get arrested unless the company is greedy and it's small-scale fanart (low-income fanart selling, commissions, personal use, and anything else that's not just for commercial, high-income purposes), but just don't overdo it.
Reply  ·  
sonicgirl018's avatar
sonicgirl018Edited |Hobbyist Traditional Artist
sigh ever since i heard of copyright law's i haven't been able to draw fan art i mean i want to but i can't out of fear. I feel like the ideas are infront of me but i am chained up so i can''t and all i can do is cry. I wish i never heard about copyrights... I wish i could forget about them forever.. I could just draw them myself but what's the point..:mope:\
:edit: yikes that was dramatic..
Reply  ·  
Crystal25152's avatar
Crystal25152|Student Digital Artist
So, I can't sell fan art, correct? But am I allowed to sell it in support and give the money to the creator/owner of what franchise I drew for after asking for permission?
Reply  ·  
TheNorthRemembers3's avatar
TheNorthRemembers3|Hobbyist Digital Artist
i hate Copyright laws. im an artist, i do both original pieces and some fan art. Ive had too many friends tell me, "oh you need to sell your art". but how exactly am i going to do that when everyone says you cant sell the fan art , when some of it might be considered transformative.  i dont recreate a scene for example, i come up with something original. you would be surprised at some of the art i come up with. 
Reply  ·  
NictheWerecatqueen's avatar
Can we submit screenshots as long as they are in scraps
Reply  ·  
MondoArt's avatar
MondoArt|Hobbyist General Artist
- How do you feel when creating a piece of fan art or fan fiction around your favorite character or story?  
I loved it, if its a character I love or admire I would do my best to show respect by drawing as accurately as I can

- Is fan art a pathway in your evolution as an artist?
Absolutely! by first learning how to draw from certain artist and certain characters I love, my skills grew and helps me develop my own style.
Reply  ·  
Username-91's avatar
Username-91|Hobbyist Filmographer
I think making a trouble of how fanart is illegal is nothing but a waste of time. I haven't heard yet that a fan art creator got sued for making a fanart. Only fool would do that who believe that fan art = offense. Not fanart = a compliment. A respect for a hard work that artist(s) put in.
Reply  ·  
piepmatzz's avatar
piepmatzz|Professional Filmographer
Fanart isn´t illegal!! You can post it, show it what ever you want. BUT making money with Fanart that´s illegal!
Reply  ·  
Username-91's avatar
Username-91|Hobbyist Filmographer
About selling yes, about posting no, but unfortunately, some people think different.
Reply  ·  
sonicgirl018's avatar
sonicgirl018|Hobbyist Traditional Artist
im confused are u saying selling fan art is illegal right?
Reply  ·  
yuukiXakira's avatar
yuukiXakira|Hobbyist Digital Artist
i still dont understand it completly.
for example naruto is a manga and also an anime.
what will be acceptable and not ?
for example if i draw scenes from the serie and post them here for free am i allowed to still do this ?
and if for example i make bases or original characters of naruto and ask money of them is this still allowed ?
Reply  ·  
piepmatzz's avatar
piepmatzz|Professional Filmographer
You can draw fanart. You can even copy scenes, but then you have to "quote" the original refrences and tag that with "exercise" or something like that.
But If you want to sell your fanart, earn money with it: that´s illegal. v.v

chrisoatley.com/fan-art/
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