Can You Legally Sell Fan Art?

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Written by Juha

There is quite a lot of confusion around this topic because people generally struggle to understand things like copyright law and how that might impact the sale of fan art.

This article will take you through everything you need to know about selling fan art legally – which you can do, but you need to follow certain guidelines first – and help you to understand all of the jargon surrounding it such as copyright laws, trademarks, fair use, and fan art commissions.

The short answer to the question of can you legally sell fan art is yes and no. Yes, if you have the copyright holder’s permission, no, if you don’t have the copyright holder’s permission. Artworks are more or less always automatically copyrighted to the creator, and so you need permission to sell artworks based on an original IP (intellectual property).

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Fan art of Zetman by Okuha

Now, if you’re trying to understand how to sell fan art legally, read on!

What is fan art?

You probably already know this if you’re here, but essentially fan art is just the creation of art by fans of a particular work of fiction. They may use settings, characters, or something else from the original artwork or fiction to help inspire their fan art.

How to legally sell fan art

Now, if you are looking to sell fan art, there are a number of things that you need to do before you sell anything.

You must be incredibly careful when dealing with the sale of fan art because it can lead to some legal difficulties if you aren’t careful.

As somebody (usually the artist, but it can be sold to somebody else like a publisher) will be the copyright holder of the work of fiction, creating fan art for sale will almost certainly need to be approved by the copyright holder to be legal.

This includes fan art that is only inspired by the work of fiction because copyright laws cover the reproduction of artwork, but also the creation of derivative artwork based on the work of fiction.

It is the section on derivative pieces of work that applies most to fan art creators because even if you are not recreating a scene from the work of fiction, you may be using their characters, or a setting, or something similar in your piece.

This has to be covered by copyright law because it is possible for people to believe that high-quality fan art was created by the original fiction creator.

This can lead to difficulties if, for example, you created fan art of a wholesome character behaving inappropriately.

Therefore, the original fiction creator has to protect themselves in law by being able to stop individuals from creating fan art that might harm their original piece of fiction in some way.

On the more positive side, you might create high-quality fan art that is inspired by the fiction directly, such as recreating an actual scene that took place in the original piece of fiction.

This could be of high-quality and stick to the original characters closely, but copyright laws would still apply to you if you haven’t sought official permission to create the piece.

This is because you might stand to gain a lot of profit from the sales of your fan art, but the original artist whose work yours is based off won’t see any of that profit.

While that idea may be frustrating to you, the original fiction creator worked hard to create their work too, so it would be unfair for them to suffer any loss of money because your fan art is taking business away.

All information on copyright law and the creation of derivative pieces were acquired from Chapter 1 – Circular 92 | U.S. Copyright Office. More information regarding U.S. Copyright Law and any additional amendments can be found at Copyright Law of the United States | U.S. Copyright Office.

Follow these guidelines closely if you plan to sell fan art in order to do so legally.

If you’re a fan art creator, there are a number of things you need to do in order to sell fan art legally:

  • Contact the copyright holder. This can usually be found in the original piece of fiction. Failing that, contact the publishers and request copyright holder information.
  • Request permission to create and sell fan art.
  • If the copyright holder agrees, they may have additional requirements, such as showing them the finished piece before the sale. Follow these requirements closely, or the sale of your fan art will not be legal.
  • If the copyright holder refuses permission, you must cease at once. Failure to do so may lead to legal action.
  • IMPORTANT: Some websites such as Redbubble have already acquired the legal permissions necessary for the sale of fan art. Look into their website information to make sure you can legally sell your fan art there. Redbubble takes a percentage of your earnings and passes them to the copyright holder as a substitute for having to pay royalties. This is legal, but only if the site specifically says they have copyright permission. You must look into this because legally, it may be you, not the website, that faces certain legal challenges by the copyright holder.
  • There will be more on Fair Use later, but for now, you need only know that creating a parody of a piece of fiction is legally acceptable. HOWEVER, the only way to determine whether your particular parody piece is legally acceptable is to find out in a court of law after the copyright holder moves against you (if they choose to do that). Fair Use can be a murky area in the law that leaves parody artwork open to debate. Parody work is defined as work that is an imitation of a particular artist, writer, or content creator. Just remember, parody fan art might be legally acceptable, but there are no guarantees. The only way to know for sure is to contact the copyright holder directly.

The difference between art and fan art

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Darling In The Franxx poster (source)
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Darling In The Franxx – Zero Two fan art (by Okuha)

In terms of quality, there might actually be no difference at all. Fan art creators are some incredibly talented people, but there are differences in the definitions of art and fan art.

In terms of quality, there might actually be no difference at all. Fan art creators are some incredibly talented people, but there are differences in the definitions of art and fan art.

As we already know, fan art is artwork that is created by fans of a piece of fiction that might be inspired by characters, settings, or something else about the original piece of fiction.

Art, however, is usually created for an original purpose, without using the work of another artist to inspire their work.

That being said, you could probably argue that all art is fan art – because original creators of art must have been inspired by something.

That’s probably a debate for another day though. The main difference between the two is that art is seen as original in law, and fan art often is not.

And that is why the following sections are something you need to understand as a fan art creator.

Copyright in artworks

Whenever a piece of fiction or artwork is put out into the world, it has more than likely been copyrighted.

The copyright owner has the sole right to the recreation of the original piece, the creation of any sequels, and the creation of any derivative works. 

Copyright in artwork can apply to a wide array of different things such as the plot, the characters, the settings, and the descriptions.

Fan art is almost always derivative of at least one of those copyrightable elements and so requires express permission from the copyright owner in order to create and sell their fan art.

It’s important to remember though, that creating fan art that isn’t for sale is perfectly legal. As with most things in life, the lines only begin to blur when you start to make money from it.

Trademarks in artworks

Trademarks are a way of marking artwork as being the work of a particular brand. They may use a particular sign, symbol, or word(s) that show that the piece of artwork is from the original official source.

It’s a way of letting people know that a particular piece of artwork was created by the official brand or individual and not by someone similar.

As you might have guessed, this is pretty important in fan art creation because only artwork bearing an official trademark can be shown to be the official work of the brand or individual.

In law then, fan art tends not to encroach upon the misuse of trademarks, as generally fan art creators will not deliberately try to claim their art is from an official source.

However, there have been some legal cases involving trademark misuse in fan art, but this has come about when the fan art creator has deliberately tried to mislead customers into thinking their work was official.

So long as you don’t deliberately try to mislead people into thinking that your fan art is official by wrongly using somebody else’s trademark, then you should be fine for this particular part of the law.

All information on trademark definitions came from the United States Patent and Trademark Office – for more information on trademarks, visit Trademarks | USPTO.

Fair Use

As mentioned earlier, Fair Use is an area in the law that often leads to some debate, and there are no hard and fast rules when it comes to Fair Use.

Fair Use just determines whether somebody has used a work of fiction or artwork in a way that is fair.

For fan art creation, this might look at whether or not the fan art creator makes clear that it isn’t official, how much of the copyrighted work they actually use in their piece, or whether or not it harms the original copyrighted work in any way.

The U.S. Copyright Office does define Fair Use and the factors involved in deciding whether something has been Fair Use at the following link Chapter 1 – Circular 92 | U.S. Copyright Office.

As a brief overview though, these are the main factors that a court of law must look at to determine whether or not there has been Fair Use of a copyrighted piece of work in the creation of fan art:

  • Was it created for profit or not?
  • What is the nature of the copyrighted work?
  • How much of the copyrighted work was used in fan art?
  • Does this impact the copyrighted work negatively?

You’ll notice that the first point, both in this article and on the U.S. Copyright Office link provided, refers to profit.

That’s because even if all of the other factors are determined to be acceptable in law, the sale of fan art is not legally covered by Fair Use, and therefore fan art creators will not likely win their case against copyright holders if they are legally challenged in a court of law.

Fair Use is a legal defense, but in terms of the sale of fan art, it is likely not a particularly valid one.

Fan art commissions

Fan art commissions are the sale of fan art to an individual who has requested a particular fan art piece to be created by a fan art creator.

The keyword there is the sale.

Because you’ve guessed it, fan art commissions are illegal without the proper permission from the copyright holder, and it all links back to the selling of the fan art.

You simply cannot sell fan art without the permission of the copyright holder, and that is always what it will boil down to.

Now, if your friend asked you to create a fan art piece for them to hang in their bedroom, but they weren’t going to pay you for it, that would be legal, and you wouldn’t need to seek any special permissions.

Ways people are selling fan art today

Now remember, just because people are doing it doesn’t mean that it’s legal. Below is a list of places where fan art is being sold, but the responsibility is on you to make sure they are doing it legally.

Remember, the original copyright holder must give permission, or they must receive some financial benefit from the sale of the fan art themselves, or else it’s probably illegal.

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Conclusion

Fan art is incredibly popular, and rightly so. Fan artists are talented, but if you’re a fan artist who wishes to sell their fan art, then you need to make sure you are on the right side of the law.

Copyright holders can and will seek legal action against fan art creators who are selling their work.

In the first instance, seek direct permission from the copyright holders. 

But, if you plan to use one of the websites listed above, make sure you do your research to ensure that they have the proper permission to sell fan art too.

After all, it’s always better to be safe than sorry!

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