Art NFTs are becoming increasingly popular as the NFT trend continues to grow. But with the growing popularity, some copyright issues also need to be addressed, particularly with what can be sold and what can’t.
When it comes to selling fan art as NFTs, it is considered illegal to do so if you don’t have written consent from the original creator. But there are ways to sell it without breaking copyright laws.
The following article explains why fan art is illegal to sell as an NFT if specific requirements aren’t met. It also includes a brief guide on how to sell fan art legally from my non-attorney perspective.
But, before we proceed, I need to disclose that I am not an attorney. This article is not legal advice, and if you need legal advice, you need to seek a qualified attorney.
Why Is Selling Fan Art Illegal?
Whether online or in-person, selling fan art is illegal because the seller is profiting off of a character or idea that they didn’t create. Making fan art is generally not illegal, but trying to sell it without certain requirements is.
When an image, idea, or NFT is copyrighted, it’s essentially a signature from the creator that they made it and therefore own it. When someone else uses that image or idea in a manner that discredits or steals from the original creator, then it becomes illegal.
This has and still happens with copycat NFT creators who essentially copy NFTs from other artists and resell them. This is major fraudulent activity. Most major NFT platforms like OpenSea and Rarible have set up programs to help mitigate this copycat problem.
Before you buy an NFT, always check ownership. Do this to check: How to Check the Ownership of an NFT (7 Methods).
In the case of fan art, someone creating art of a character or show isn’t an illegal act. But when they try to sell it without certain requirements, it’s then considered stealing and becomes unlawful.
Or if the fan artist says they are the original creator, then, of course, that is not legal either.
Selling fan art is also illegal because it can steal sales from officially licensed merchandise made by the original creators. Someone else profiting from a show or character that someone else made breaks several copyright laws. It also discredits the original creator and gives credit to someone that doesn’t deserve it.
Finally, selling fan art of a character or show that portrays it in a way the creator didn’t originally intend it is illegal. This can include adding inappropriate phrases or inappropriate traits to the character or show.
Selling this type of fan art is illegal because it was likely created without the original creator’s knowledge or permission. Thus, it discredits them and gives consumers an unfairly negative portrayal of the character or show.
How To Sell Fan Art Legally
There are a few ways to sell fan art legally without fear of being prosecuted under copyright laws. The best way is to gain the original creator’s permission or get authorization from the current copyright holder. Plan B is to sell it somewhere that will take care of all the legalities for you, like RedBubble.
If you want to sell fan art you created as an NFT, you can, but only in a few exceptional cases. The best way to ensure you sell fan art legally is to obtain permission from the character’s original creator or show you made fan art of.
You will have to get it in writing so that you can prove you have written consent if you receive a copyright infringement accusation.
However, the chances of getting written permission vary depending on the original creator. If the original creator is relatively small and not well known, then you’ll be more likely to obtain permission from them.
But if the creator is very well known, like Marvel, your chances of gaining their written consent are slim to none, unless you are already an established artist.
But there is another way you can sell fan art legally. You can sell it on websites that will take care of all the paperwork and authorizations for you.
For example, the merchandise site Redbubble will collect royalties on your behalf for certain copyright owners. This way, you don’t have to worry about breaking any copyright laws and can only worry about making excellent fan art.
As of now, I haven’t heard of RedBubble getting into the NFT space. However, in the future, I could see it as a positive venture for both RedBubble and fanart creators.
These two viral articles explain in more detail how fan artists acquire authorization to sell the copyrighted material. If you are able to do the same, your art may get in front of a larger audience and really get noticed:
- Is Fan Art Plagiarism? How To Safely Sell Your Artwork!
- How To Get Copyright Permissions For Your Fan Art Movie Posters
Does Fan Art Fall Under Fair Use?
The question of whether or not fan art falls under fair use involves the analysis of four factors. These factors include how much of the original work is included in the fan art and the economic effect of the fan art regarding the original work.
Fair use refers to how a piece of media can be used without gaining permission from the original creator. The main things that constitute fair use include:
- If the media is used in a news reporting
- If the media is being critiqued
- If the media is being used in teaching or researching something
The circumstances of when that media falls under fair use differ from situation to situation. Four determining factors decide whether any media, including fan art, falls under fair use. These four factors are:
Where The Original Work Came From
The origins of the original work primarily refer to if the original work was fictional or non-fictional. Fictional origins typically mean that the media doesn’t fall under fair use.
But since most fan art is based on fictional characters and shows, the other three factors are mainly analyzed when determining if the fan art falls under fair use.
The Purpose Of The Art
If the purpose of the fan art you create is to sell it and make a profit off of it, and you don’t have permission from the original creator, then it does not fall under fair use.
However, if the purpose of creating your fan art is to show appreciation for a character or show that you enjoy, then it does fall under fair use. As long as the purpose of the fan art isn’t commercial, such as trying to sell it as an NFT, then it likely falls under fair use.
How Much Of The Original Work Is Incorporated Into The Fan Art
If a large amount of the original work is incorporated into the fan art, it doesn’t fall under fair use. For example, if a character is referenced or used as inspiration for a piece of fan art, then it falls under fair use. But if the fan art looks too similar to another creation of the character that was made by the original creator, then it doesn’t fall under fair use.
The fan art must be transformative to be considered fair use, meaning that it must appear different in some way from the original creator’s work.
It’s not always black and white, though…so proceed with caution and hire a qualified attorney for advice.
The Effect Of The Fan Art On The Market Of The Original Work
Finally, if the fan art will have a negative effect on the potential market for the original work, then it doesn’t fall under fair use.
When you sell fan art as NFTs without permission, you’re hurting the chances of the original creator making a profit from their work, which doesn’t constitute fair use.
How Do I Know If My Fanart Is Illegal To Sell as An NFT?
Figuring out if your fanart is illegal to sell as an NFT is a reasonably straightforward process. It involves asking yourself a series of questions to see if you’re breaking any copyright laws.
These are general copyright topics to become familiar with. Chances are Marvel and Star Wars characters and intellectual property from your favorite movies and TV shows are not going to fall under these categories, but they are good to know about.
Is It Public Domain?
The first question you should ask yourself when it comes to selling fan art as NFTs is if what you’re using is public domain. Public domain means that something is available for the public to use freely without fear of copyright infringement. According to Wikipedia, “those rights may have expired, been forfeited, expressly waived, or may be inapplicable.”
Books, music, and film all have different rules of when and how they qualify as public domain. For example, according to Wikipedia, “American copyrights last for 95 years for books originally published between 1925 and 1978 if the copyright was properly registered and maintained.” This Wikipedia link further explains Public Domain.
Is It Produced By The United States Government?
The next question you should ask is if the image in question is produced by the United States government. I’m not sure how this would apply to fan art, but I suppose it will be helpful for all NFT creators.
If you are a US citizen making NFTs in the US and want to use an image the US government created by a government employee, apparently, you can use it. If you are not a US citizen and working outside of the US, you may have copyright problems.
US entities may claim copyright abroad.
This is what Public Domain Sherpa says, “The US government is one of the largest publishers in the world and, by law, works prepared by federal government officers or employees as part of their official duties are not copyrightable. That means thousands upon thousands of works, of all kinds — written works, photographs and other images, films, software, and more — are in the US public domain.”
However, you might need to ask permission to use things created by someone who isn’t a government employee but created media for a government entity.
One “no-no” is that you can use government logos, seals, or trademarks. The US Department of State talks about copyright and how it applies to the US government here. So drop the idea of turning the NASA logo into an NFT…bad idea.
Oh yeah, for all the Smokey the Bear fans, he is off-limits too.
There are many other nuances and laws that would need to be investigated if you are serious about using US Government media, data, and materials. Just do your research before minting an NFT to confirm you are in the clear.
What’s The Teach Act?
Since we are talking copyright, you should be aware of the Teach Act.
This act states that teachers and students may use an image or certain media for educational purposes without being charged with copyright infringement.
If you are a teacher or student, you can use it for educational purposes. However, I do want to caution you that there are many more nuances to this law that you need to beware of.
Penn State has an excellent web page dedicated to this law, and it goes into way better detail. Please go to their page to learn more.
But why would you mint an NFT for educational purposes? I’m not sure; perhaps there is a reason. Where you get into trouble, I believe, is if you sell it for a profit…that is specific copyright infringement.
Does It Fall Under the Creative Commons License?
The next step is to ask yourself if the image falls under the creative commons license. This license offers copyright licenses for some images, so you can use them without being prosecuted, but usually, you will be required to state who created the image.
Generally, you will not be able to use a Creative Commons license for commercial purposes, but there seems to be a grey area. It is best to consult with an attorney.
Selling fan art as NFTs is a great way to turn a hobby into a side business or, better yet, go pro and become a professional NFT fanartist. As long as you follow all of the requirements to sell fan art legally. However, selling fanart without permission could lead you to legal problems, loss of money, and monumental headaches.
It’s best to stay legit, so you sleep well at night! When you do get the proper permission, make some awesome art and get to minting your NFTs. If you are ready to mint, then you need to read these money-saving articles:
And as soon as your NFTs are ready to be marketed, be sure to read this NFT marketing guide to help get your art in front of the right buyers and collectors: How To Get Your NFT Art Noticed: Complete Guide. To the moon!