The Legality of Selling Fan Art

[Prometheus]

A while back I posted something about this before. I'm not terribly great at expressing myself, especially when I'm open about things with others. I tend to say the wrong things, or not enough of what I'm actually thinking. To be clear: I found this video today while I was looking for tips on how to sell my comics and other art at conventions. I thought this was a really interesting video, and I thought it was well done, and the explanation was really good. This video isn't meant to call anyone out that sells fan art, and it's not me trying to create a huge debate. But I do think that this guy goes into some depth on the matter that I do think is important to consider. Either way, I like what this guy has said. I thought he explained it really well, because most websites that I look at to understand this topic more explain it very vaguely or use jargon that I don't understand. It's clean cut and precise, and I do agree with him.

[Darth_Biomech]

Fanart is illegal. That's the law and it as simple as that.

Thankfully, of course, the majority of people (and even some lawyers!) are sane decent individuals and they won't proceed with the lawsuit over one drawn picture, or won't bother because they can't shake much off one random teenager so the costs of initiating lawsuit won't ripe any benefits, so they'll let you do your thing.

But the fanarts are still, according to the law, an IP theft - in your work you used something for which you had no rights or licenses to use. If you will be sued over a fanart you'll likely lose.

Selling your fanart is even worse, since you are not only using somebody else's IP, you are profiting from it. It's a much stronger incentive for somebody to go after you.

[SpavVy]

It's definitely illegal and I wouldn't recommend it even if it's just one or a few copies.

[MeltingCORE]

Yeah, you can not legally sell fan art unless it is licensed. Redbubble will allow you to try and get a license but there is no guarantee your work will be accepted into their store. (ie you can try to submit Star Trek, Steven Universe, etc fan art but the franchises have a very high standard to be officially licensed!)

[NickRowler]

I think this guy is going to a bit of an extreme. I feel like a young artist may watch this video and get misinformation and think they are breaking the law by sketching Yoda in their notebook. Most IP holders do not care if you are drawing their character to post in a non-commercial setting (except for schools which is a different story).

However, what he says about selling fanart is true. Mostly because it is seen as a bootleg. I think the reason why some people can get away with it is when they are able to sell something that could never be confused with a legitimate product. And at conventions, you are not allowed to name drop the IP. However, Disney is very cruel with copyright and some conventions will tell people not to sell Disney, Star Wars, or Marvel fanart.

[GamerPrincessXI]

yes. it's okay to sell fan art. that's how it spreads like wild fire!!!

[jjfresh]

The best method is looking at Copryright laws and Fair Use yourself. There's some changes that have been made recently that I haven't delved into very much and how it affects Fair Use. However, Fair Use does apply even to the selling of fan art.

I would suggest, however, to avoid fan art without written consent of works from companies that have a litigious history.

Be careful of what you're watching because it can be misleading or just wrong. In this case, he's definitely one of the most informative out there. I still argue your best bet is due diligence of your own. Any website that includes the disclaimer "I'm not an attorney," don't rely on it too strongly. You want the interpretation from a lawyer, or the written law itself.

Do also keep in mind that this is one of those things that are typically not enforced. You will not be criminally persecuted for copyright infringement but it is something an IP owner can sue if they wish, provided your work isn't protected under Fair Use.

---

TLDR: if you're someone who wants to sell fan art on an official platform and expect a decent following, you want to do your due diligence on what is permissible.

[frgmnt]

Fanart is illegal. That's the law and it as simple as that.

Honestly it's one of the examples how ridiculous and detached from reality some laws tend to be lol.
Afaik, as long as you're not making huge profits, or counterfeiting an official piece of merchandise, most companies don't really care if you're selling fanart prints at a con or releasing a fanzine. In Japan for example, the doujinshi scene is a huge part of fandom culture, and is generally approved of (or at least, not disallowed) by anime/manga/game creators. Fanwork in general is seen by most sane creators/IP holders as harmless and basically free advertising.

Fanart commissions might be a grey area - I know a lot of people are doing it without problems, but I guess you're doing it on your own risk. (There isn't a high probability of being sued, but yea.) If you're selling them through a specific platform, it might have its own rules on what content of commissions is allowed, though, and some probably disallow fanart.

[Darth_Biomech]

Afaik, as long as you're not making huge profits, or counterfeiting an official piece of merchandise, most companies don't really care if you're selling fanart prints at a con or releasing a fanzine.

Yeah but the main problem is that they can suddenly begin to care. Company IP lawyers are rabid, as anybody who owns YT channel can confirm, and can be provoked by anything at any moment.

[thecrystalrook]

It is copyright infringement, but you're probably not going to have an issue. Think about all the artists at large conventions like comic con that sell fan art and dont have an issue. It's bad PR for companies to come down on artists unless they have a very good case that the artist is costing them money.

Keep in mind, stores like Etsy and Redbubble are out to protect themselves legally (because THATS who a company is far more likely to go after) and so they're likely to remove your fan art from their sites.

[ble]

I think some people do some loopholes.

If you check at the BIG digital artists (Sakimi-chan, Ross Tran, Ilya Kushinov, etc) they do fan art of popular characters from anime, videogame, or comics, but if you want to get technical, they are not "selling ", instead is a "reward" for being their Patreon.

Another example would be, if a YouTuber makes a video of them drawing a copyrighted character if they can monetize the video or not because they are not "selling", but still get ad money.

[arbiterswake]

To put it simply, No.

Do people do it anyways?

All. The. Time.

Sometimes without their knowledge. Apps or sites like Wish LOVE stealing people's fan art, slapping it on a tee-shirt or pillow and selling that stuff without the artist's knowledge and it's pretty rampant.

[Prometheus]

I don't think he's going too extreme. That's just my opinion, though. Because a lot of what he's saying ties into selling fanart, not necessarily just drawing it.

[nostalgicroxas]

Think about all the artists at large conventions like comic con that sell fan art and dont have an issue. It's bad PR for companies to come down on artists unless they have a very good case that the artist is costing them money.

Except that in 2018 and even a bit later, anime conventions and comic conventions suffered almost losing their Artist's Alley and Maker's Alley entirely because CrunchyRoll and other sponsors for the conventions said "we do not want to see the fanart in the official big merchandise room where we're selling our merchandise of anime" as a TLDR. Conventions across the US as a whole had to either axe their AA's in half, or move them to really hard to find areas/so they weren't in the same room as the main selling area where you buy official merchandise. It was a large hit financially to artists.
Sakura-Con famously had to move it's AA from sharing the main room to being across the street in an annex and taking up two floors and halved the number of artists. Artists there depending on where they were placed went into the red, especially if they were on the second floor where there were poor or no signs or attendees didn't even know. That first year many attendees didn't even know where the AA had been moved to - they couldn't find it - they just simply knew that it was no longer in the main room, where it had come to be known for years.
And it wasn't just something from Crunchyroll - it was something from the Japanese directors/producers/companies that did not want to be supporting the fanart industry. IE an industry person walking around the main room did not want to see that more people were buying fanart rather than official merchandise of an anime.

@kazbotsoup Specifically Sakimi-Chan was hired to do fanart of Velvet from Tales of Berseria as a PR stunt for the game before it released. She did a 1hr+ livestream of her working on the art while being interviewed even as part of the PR campaign. That specifically, was a special case and I'm very certain she was paid.

[Prometheus]

@nostalgicroxas

That makes a lot of sense from CrunchyRoll's perspective. I made this post because, a while back I'd mentioned selling fanart, but I just didn't have the words to describe what I was thinking. I'm actually surprised that, a lot of websites and forums I've gone to, people have claimed that it's okay because, "You won't get sued" or "because you're not making enough money off it". I don't think people that sell fanart are bad people, and it sucks to see people suffer financially, but I think a lot of this comes down to, "You can sell fanart, but should you?" I like what the guy said in the video, about how selling fanart is someone else making money off of something that someone else took effort and time to invest in to get it where it is now. And I think that's something powerful in terms of this topic.

[Prometheus]

That's true. There definitely are different ways to go about it.

[Prometheus]

It's good that it spreads the series. That is a pro to the act of selling it. But I don't think it's okay to sell something someone else has worked their butt off to get successful. At least without permission, that is. But I will admit that it does spread the word.

[nostalgicroxas]

There's somewhere a famous example of a girl who made a bulbasaur pot for succulents and like clay to make the ears and she made a guide on youtube and on like Pinterest and she was sent a Cease and Desisst by The Pokemon Co because "it was making too much money" "too much PR on fanart" cause it was a cute wildfire - like she had instructions on how to mix up Bulbasaur's color to paint the pot and was selling the instructions iirc. It was nuts.
The Pokemon Co will also go after people who are making pokemon plushies - especially if they are some of the "main popular ones" and they look better than the official merch

[Prometheus]

Hot dang. Again, that makes sense from a company standpoint. They're not being greedy dirtbags. They're legitimately protecting their IP's. Something that small time creators can do, too. And if a small artist's IP gets infringed upon, I hope that they can protect it. Again, I feel bad when fanart makes a lot of people's art careers/money, and then they get sued or shut down because of it, but selling it is just a big mess that leads to trouble, in my opinion.

[nostalgicroxas]

They can also be sued for not just the money they made but in "damages" aka "royalties", as money that the official company should have gotten if it were their sales. IE someone does an aolan (white) vulpix plushie and sells say 100 for 50$ each (chump change for handmade plush), The Pokemon Co can demand that every penny that is considered profit and not money spent on materials to make it (ie sewing machine/skills/time labor/fabric/thread/cotton fluff/ect) would be demanded to them. The only thing the sewer can retain ownership of is the pattern used to make the plushie. The Pokemon Co has vulpix in appearance, but they cannot control how someone makes their seams.
I know a girl who's sister was making My Little Pony plushies (like 28"big) and had a filed a copyright for the pattern for the animal taking out the patch that's different for each horse so that even if she got sued, the company would not be able to claim ownership of the pattern because it had been filed say, two years ago.