Fan Art and Fan Fiction are amazing ways to participate with a character, novel, film, television series, comic or even music artists and their songs. And, pretty much everything that fan art references is a copyrighted work. So, fan art starts its life as a “derivative” work of the copyrighted original and, as a result, technically fan art is copyright infringement. It can also be a violation of trademark law and sometimes the actor’s rights of publicity if they are well represented in the fan art.
BUT, BUT, BUT
There is so much fan art and fan fic! How come?
Copyright and trademark owners as well as big shot personalities and actors have wide ranging feelings about fan art. Some welcome fan art as a sign of love and respect or as a way to connect with fans and generate even better audiences for the original work. Some are hostile, viewing it as damaging the canon of the original work or cheapening the presentation or just as a form of stealing the original.
Fan Art can be OK and qualify as “fair use” under the copyright and trademark laws; meaning that even if technically it’s an infringement and even if the copyright owner hates it, the way in which the fan art uses the original either completely transforms the original or uses the original in a small way that doesn’t harm the commercial interests of the copyright owners.
Fan art is also frequently allowed through what is known as an “implied license.” This happens when it is obvious to everyone that fans are using the original work and there is a consistent lack of complaint from anyone connected to the original. Sometimes a copyright owner like a big studio or a major comic publisher will directly ask fans to produce art.
But the copyright or trademark owner has ultimate control over whether to permit fan art. Even when fan art looks like it is permitted, the owner may choose to only permit certain kinds of fan art and prohibit others or change its mind and its policies going forward. For example, a big comic publisher may think it’s OK to permit its characters to be drawn by others and displayed at a convention or let them be posted on the Internet without objection. But the same owner could draw the line at commercial sales of fan art. The important thing to remember is that the owner has these rights and they should be respected when enforced responsibly.
There is one thing for certain: copyright owners — whether an individual or a large media corporation — are always hostile to any serious commercial use of fan art.
But it is also true that fan art is an important contribution to the culture and a key way of “talking” about a favorite book or movie, for example. Copyright and trademark law cannot stop a conversation about the original, protected work. Some lawyers believe that as long as the fan art is clearly about saying something non-commercially in the form of a critique, parody, satire or just as an expression of passion for the original then the courts will permit the fan art even if the copyright or trademark owners try to have it taken down.
It is ironic to see fights over fan art since it invariably comes from a position of true respect and admiration for the original.
For a more detailed explanation of the law that applies to Fan Art you can watch the following video produced by DeviantArt of a presentation on this topic at San Diego Comic Con International:
Fan artists can help themselves and the owners by taking a few simple steps:
Respect the copyright owner. Remember, unlicensed fan art very likely infringes on the owner’s copyright. So, fan art exists only because they allow it. If they prohibit or restrict fan art, respect their wishes. If they ask you to take it down, be respectful as well.
No serious commercial exploitation. Artists know that commercially exploiting someone else’s creativity is wrong and disrespectful. Commercial exploitation of someone’s creative work undermines the laws meant to protect the entire artistic community. Occasional one-off sales may be OK with the owner of the original, particularly for very famous characters. But running lots of multiples without asking direct permission is just wrong even if you think there is an implied license of some kind.
Label fan art as fan art. Labeling helps make your intentions clear: what I do is for love, not money. I’m admiring, not imitating. More importantly it lets everyone know that the art or the fan fiction is, in fact, from a fan and not something produced by the owners of the original work. The worst you can do as a fan artist is to pretend you are producing authorized and approved content when you are not.