Are you a big fan of “fan art”? Ready to start making your own and selling it for a profit? If this is your business plan, then chances are you will need a license from whoever owns the creative rights of the “IP,” otherwise known as intellectual property.
The fan art world can be murky and dark, and it’s not always clear. Hopefully, this article will point you in the right direction and shed some light on the sometimes abstract ways in which copyright law and accepted customs work.
You’re probably thinking right now, “all those artists and vendors selling fan art at Comic-Con, Wonder-Con, the local art fair, or even online can’t possibly have connections and licenses from Marvel, Paramount, Disney, and the rest of the major IP owners.”
Well, you’re probably right, and if the likeness of the poster or art is easily identifiable, then you are most likely seeing a crime being committed known as copyright infringement, and it’s time to call the copyright police squad.
Disclosure: I’m not an attorney! To start off, I have to disclose that I’m not an attorney and in no way is this article legal advice.
I’m simply sharing my opinion and what I have observed over the years when it comes to intellectual property and copyright laws, as well as some very informative YouTube videos of actual attorneys explaining the mess.
I should also mention that NFT art has become extremely popular, and numerous copyright issues are arising. This article explains that situation in more detail.
So, enjoy the opinions and consult an attorney if you dare decide to tread into the fan art waters looking to make a profit.
The legal way to sell fan art
Let’s say you want to start creating your version of an alternative movie posters based on Star Wars, Wonder Woman, and Iron Man. You have your designs and artwork ready to go. Everything is printed out, and you just reserved a booth at Comic-Con. Do you have a license? Or you made some awesome 3D renders of your favorite superhero and want to sell it as an NFT?
That’s right; in order to do make some cheddar off your artwork legally, you will need permission and a license agreement from the IP owner. In this example, it would Disney, DC, and Marvel.
The license agreement should have the terms and conditions of your deal. Usually, you will owe a certain percentage of the profits to the IP owner.
Every agreement is different with different terms. Some may require money upfront before you even make a sale, and some may just take 15% of the profit or something like that. You may have limits on what you are allowed to produce. Almost everything is negotiable.
How to get a license?
You will need to get in contact with the IP owners. Chances are, if you are a small fry and want a license from a conglomerate, you are not going to get it.
I don’t want to destroy your dreams but do you think they are going to spend their time negotiating a deal with you who may sell 25 posters. They make billions and you make hundreds. That hypothetical 15% you owe them is not worth their time.
However, it’s always worth a shot, and some of the bigger movie studios like Disney have a website dedicated to licensing. Check out: Disney Studio Licensing.
We dove way deeper with this article, How To Get Copyright Permissions For Your Fan Art Movie Posters, which has become a very popular article.
And while on the topic of licenses, photography is a big issue. There are severe consequences if you use editorial images and unlicensed photos in commercial artwork (movie posters), but this linked article will help explain.
While researching this subject, I ran across an amazing YouTube video by an attorney with a great grasp of copyright law and how it applies to fan art.
His name is Lior Leser, and he has a video titled “Is Fan Art Copyright Infringement or Fair Use? 5 Common Fan Art Law Misconceptions.”
His misconceptions are perfect for this article as they are generally what my friends bring up when they decide to make fan art.
Mr. Lesor says there are 5 tips that he has seen circulating on the internet, which are totally false. He believes you need to be aware of these, so you don’t get into trouble. Here they are (paraphrased):
- Fan Art Is Original: fan artists assume that it’s not infringement because the art is original. He says this is false. If you don’t have permission, it’s infringement.
- It’s Not Commercial: maybe the fan artist is giving away their work for free, or just charging enough for the materials, or making a very minimal profit. Well, Mr. Lesor says this is all illegal and asks you to think about it. If you are giving away a representation of artwork based on copyrighted material, you are taking away from their sales. He goes on to say this is not fair use, and giving away artwork may be more destructive and hurtful to the IP owner than if something was sold for a profit.
- It’s Transformative: some people say that fan art is transformative, so it qualifies as fair use. Not so much, say Mr. Lesor. He goes on to reiterate that fan art is just expanding on the original characters. He then explains that transformative art is more likely going to be parody, commentary, or criticism.
- Only Using a Little: fan artists claim they are outside of copyright infringement because they only use a little bit of the character or setting. Mr. Lessor gives an example by saying he has heard people believe that just because the character is way in the background or can barely be seen, it doesn’t count as an infringement. He clearly says this is not a good defense.
- No Fan Art Lawsuits There Fore I Can Get Away With It: fan artists will claim that because certain IP owners haven’t sued any fan artists for copyright infringement that it’s okay, and they can get away with it. Mr. Lesor says that it’s still breaking the law; however, sometimes companies see fan art as a positive and may not pursue legal action. Mr. Lesor says, “just because someone doesn’t sue means that what you are doing is not copyright infringement.”
Mr. Lesor finishes his video by saying that there have been lawsuits filed against fan artists and gives a few examples. For instance, Pokemon sued someone for throwing a Pokeman themed party! That’s a little crazy, right?
What’s a Copyright Cop Say?
Josh Wattles, a copyright attorney for Deviant Art, held an amazing lecture on fan art and copyright law at Comic-Con a few years ago. You may want to listen to what he has to say as he was an ex-copyright cop for Paramount Pictures.
Meaning he has dealt with real-life copyright infringement cases and has sent out cease and desist letters.
He is also a professor of copyright law at numerous California universities. He seems to know what’s up.
In his lecture, he mentions that Authors and Owners live in a symbiotic ecosystem with the fans. However, the owners and authors want to control their work and, super importantly, the money.
It’s a long lecture but it’s filled with humor and insight that will most likely be useful for you. Here are a few takeaways.
Fan Art for your Portfolio
You need artwork for your portfolio and there drawing inspiration from movies, cartoons, video games, and books is legal, right? Nope, he goes on to say that this is an infringement of copyright. However, within the world of entertainment, it has become an acceptable practice.
Essentially society has adopted this as acceptable even though it breaks the law.
Side note: We should add that if you are looking to improve your fan art making ways or if you are just getting started then this is the must-read article for you:
What is Copyright Law?
He wants us to know what copyright law is. Here is the definition according to cornell.edu.
What is copyrighted?
- Expression in any original work of authorship–graphic elements and characters if fleshed out as well as style, story, plot, and themes.
- Everything is copyrighted: Public domain before 1923 (ask an expert for anything after)
How long do copyrights last?
He says it’s the life of the author plus 70 years. For corporate works, they last for, if not published, 120 years from creation, but if published, it’s 95 years from publication.
He says that if you are interested in something in the public domain that you really need to speak with a lawyer. This even applies to the copyright of commercial movie posters.
Yeah, copyrights can be transferred. Think about it; let’s say you are the author of a superhero idea or story. Well, you can transfer your story/idea to Disney, and they would then become the copyright owner.
Copyright agreements can be negotiated too and have interesting clauses and creativity within them.
Some terms that are negotiated with copyrights:
- Exclusive right to: Copy, Distribute, Derivative Works
Be careful of Trademarks too!
Mr. Wattles goes on to mention that trademarks are protected too. Some trademarks that you may be familiar with are the Superman symbol or even the old school coke a cola bottle.
A few ways to infringe on trademarks is commercially, confusion to the origin, or if you make fun of a trademark. So be careful not to infringe on trademarks.
What the defense of fan art looks like?
How would you go about defending your fan art? Well, Mr. Wattle discusses some of the more common defenses. Here is what he brings up:
- Implied consent: Mr. Wattle gives the example of an actor expressing their acceptance and admiration of fan art based on their character. That is technically implied consent.
- Not commercial use: usually, if you are not using the art or trademark commercially, you may have a defense.
- Fair use: this defense is very complicated! Questions arise like, “how much of the work did you take?” “Was the use commercial?” “Is it just displayed as fan art?” Mr. Wattle uses an example of a Darth Maul painting done one time on a canvas. He asks, “Is Lucas Arts market going to be deeply impacted by this piece of art? Probably not. Some other apparently acceptable uses of fair use are criticism, news, teaching, and even scholarship research. He goes on to say it’s challenging to know if you crossed the line!
- The First Amendment: This is the right to use cultural references and all kinds of speech. He says the analysis of freedom of speech can come into play and how you use it. Basically, you should be able to sit with someone and talk about the movie you just saw!
That’s the simplistic and incomplete paraphrase of Mr. Wattles’s lecture, and therefore I recommend watching it in full here to become a little more educated on this topic. Watch all the way through the end as there are great questions asked by the audience that he answers.
If you are interested in creating fan art and selling for a profit, you should really try to get an agreement with the author/owner, especially if you are having dreams of large-scale commercial endeavors.
You may also want to get advice from an actual attorney specializing in copyright and not from an article on the internet. Just saying!
If fan art is something you want to get good at then, I recommend signing up for our newsletter so that you will be notified when our fan art class is available. It will take your art game to the next level!
Until then check out some of our free tutorials on our YouTube channel here and check out these informative articles:
- Digital Designers And What They Do
- Top 11 Film & Movie Poster Artists (Of All Time)
- 5 Free Movie Poster Templates and Dimensions