Fan art is, as a rule, generally not an example of plagiarism as long as the author of said fan art freely admits that they are not the original owner of the given intellectual property.
If you properly attribute the copyright to its rightful owner, and if your artwork is not a direct copy of the original, it’s not plagiarism.
Of course, the matter does get a bit more complex if you hope to earn money by selling your fan art. We’ll explain everything important in the following couple of sections!
But before we do, I need to disclose that I am not an attorney and that this is not legal advice. If you need legal advice, hit up a qualified attorney.
What’s the difference between fan art and plagiarism?
Plagiarism is greatly frowned upon in the fan art community. Generally speaking, if you make sure that it’s clear that your creation has been derived from an existing property, your work cannot be taken as plagiarism in any sense of the word.
Fan artwork is, generally, a fully original creation that’s simply inspired by an existing property. Provided that you’re not making a direct copy of existing, official art, you’re not plagiarising anything.
Am I allowed to create fan art in the first place?
Naturally, nobody can actually prevent you from producing fan art, alternative movie posters included. An artist can make whatever they want, wherever they want. In most cases, if you’re not attempting to actually earn money from your fan art, you’re extremely unlikely to run into any problems.
Legally speaking, though, fan art is generally considered a “derivative work,” with the copyright owner usually retaining an exclusive right to its creation and duplication.
Luckily for fan artists, copyright falls under civil law, which means that it’s entirely up to the copyright holder to decide whether they want to go after fan artists or not.
Since most fan artists never get noticed by copyright owners in the first place, this is usually not a major point of contention.
Is it legal for me to sell my fan art?
While creating fan art is perfectly legal and, in some cases, even a desirable feature of popularity for some brands and intellectual properties, straight-up selling fan art without having explicit permission from the copyright holder to do so is illegal.
Generally speaking, as long as you’re not commercially exploiting the material you’re making fan art for, you should legally be in the clear.
Of course, if you’re particularly unlucky, you may come across a particularly litigious copyright owner who may want to shut you down even if you’re not earning money from your creations. Results vary a great deal.
We discuss the legalities even further in this eye-opener of an article called, “This Is How To Sell Fan Art Legally & Illegally.”
How do some people openly sell their fan art if it’s not legal to do so?
Truthfully, the only reason some artists are allowed to sell their fan art even though they might not have explicit permission to do so is that the copyright holders either don’t care or don’t mind what the artist is doing.
Mostly, it’s a matter of enforcement.
A particularly popular example is that of Pokémon artwork. One of the biggest, most profitable intellectual properties on the planet, the Pokémon brand is owned by Nintendo, and they’ve fostered an incredible community of artists to support their IP organically.
In Nintendo’s case, it’s almost certainly more profitable in the long run for them to let artists produce derivative Pokémon artwork and sell it than to forcefully litigate them into submission and tear the community apart.
The goodwill that Nintendo accrues this way ensures that their original Pokémon products sell well, and it’s unlikely that fully customized artwork of Pokémon that sells a few dozen copies at most cuts into their profits by a big margin.
If you are looking to become the next big fan artist and need some help on the promotional side, you will want to see what we have to say about self-promotion here.
Can you get official permission from the copyright holder to sell fan art?
Naturally, it’s possible to get in contact with the owners of your desired intellectual property and to try and work out an official deal or contract for the production of artwork.
The nature of these contracts varies a great deal. Some copyright holders may wish to exert their rights over the property to a great extent and may deliberately limit what you can and cannot do with your art.
Further, it’s unlikely that said contracts would be very favorable for the artist. In many cases, officially licensing a major existing intellectual property will incur huge recurring costs that border with being outright prohibitive.
If this is the route you wish to pursue, then you may want to check out this article, “How To Get Copyright Permissions For Your Fan Art Movie Posters.”
If you aim to produce fan art and sell it, then it may be wise to look at what other artists in your desired niche are doing, how they are doing it, and how the copyright holder usually reacts to their artwork.
Surprisingly, fan artists are often left to do pretty much what they want, especially if they run a smaller operation that flies under the radar.
Note, however, that the ‘fair use’ legal defense will only work if you’re not selling your artwork. As soon as you start making money off your fan art, you need to be aware that the owner of the intellectual property can legally go after you.
Many artists have also reported that they usually get warnings and cease-and-desist letters before the matter escalates further. This gives unlucky fan artists who get noticed a chance to stop before the issue is taken to court.
Generally, due to it being bad PR to shut down fan artists left and right, though, many companies will leave their communities to their own devices. Try to make sure that this is the case with your community, too, before attempting to earn money by selling fan art.
And of course, because we are geared toward the movie poster industry, people often ask us about how copyright relates to movie posters. This article should help clear up the matter:
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WastedTalent.inc: Are Fan Art Commission of Fan Art Commissions of Copyright Characters Even Legal?