This article covers what fan art is, how to sell fan art legally and in which situations you shouldn’t sell fan art, and what you should know about intellectual property and copyright law (this article covers notes from the U.S. copyright law).
This article provides only information found online and should not be taken as legal advice of any kind. Always research the copyright law effective in your country.
- Selling fan art (derivative work) is illegal.
- You can legally sell fan art if you have the copyright holder’s permission to do so.
- Original art is something that does not have noticeable elements from known preexisting works.
- Fan art (also known as derivative work) is a work based upon one or more preexisting works.
Table of Contents
What Is Fan Art?
Fan art refers to art created by fans of a particular fictional work, such as a movie, TV show, comic book, video game, or book series.
Fan art can take many forms, including drawings, paintings, digital art, sculptures, and more, and is often shared online through social media platforms or fan websites.
Fan art can range from amateur to professional quality and is typically created as a way for fans to express their love and appreciation for the source material, as well as to connect with other fans who share their interests.
However, it’s important to note that fan art is typically created without permission from the original creators or copyright holders of the source material and may be subject to legal restrictions.
What is a derivative (fan art) work according to U.S. copyright law
From the U.S. Copyright Law: Chapter 11: Subject Matter and Scope of Copyright
“A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a “derivative work”.“
Derivative works are subject to copyright laws, and the original copyright holder has the exclusive right to create or authorize derivative works based on their original work.
How to Legally Sell Fan Art?
Selling fan art is an illegal activity, but there are ways to go around this. Here are some of the ways you can take to sell fan art legally:
Create original fan art
Instead of creating fan art that directly copies copyrighted material, create original artwork that is inspired by or references the source material. This way, you are not infringing on the copyright of the original creator.
You can contact the copyright holder and request permission to use their intellectual property for your fan art. This is often a long and difficult process, and the copyright holder may require you to pay a licensing fee or enter into a formal agreement.
Use a licensing service
Some companies, such as Redbubble, Teepublic, Design by Humans, or Society6, offer licensing services allowing artists to sell fan art legally. These services typically take care of obtaining the necessary licenses and pay the original copyright holder a percentage of the sales.
Sell your fan art at conventions or art shows
Selling fan art in person at conventions or art shows may be more permissible as long as you are not mass-producing and selling copyrighted material. However, even though you would be selling fan art in low quantities, it’s still considered illegal.
However, it seems like big brands like Toei Animation, Disney, etc., is somewhat turning their head away from conventions where artists tend to sell fan art.
Copyright Law, Trademark, and Fair Use
Copyright Law and Fan Art
The original creator of the artwork holds the copyright to the artwork. With those rights, the copyright holder can authorize any of the following:
- to reproduce the copyrighted work in copies or phonorecords.
- to prepare derivative works based upon the copyrighted work.
- to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending.
- in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly.
- in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly.
You can read more about U.S. Copyright law from the government’s official website. To sum it all up, the case is very clear that you cannot sell fan art legally if you don’t have the copyright holder’s written (or gained through some other means) approval.
Trademark and Fan Art
According to the U.S. trademark law:
“United States trademark law is mainly governed by the Lanham Act. “Common law” trademark rights are acquired automatically when a business uses a name or logo in commerce and are enforceable in state courts. Marks registered with the U.S. Patent and Trademark Office are given a higher degree of protection in federal courts than unregistered marks—both registered and unregistered trademarks are granted some degree of federal protection under the Lanham Act 43(a).“
This means that it’s illegal to use a trademarked logo or name within your fan art. For example, if you were to put Nike’s logo into your artwork, you could be sued for trademark infringement.
When you think about series and movies, you might notice that not many logos or business names are visible in them.
You can find more information on the USPTO’s official website.
Fair Use and Fan Art
According to U.S. Copyright law, Chapter 1, section 107:
In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.
- the nature of the copyrighted work.
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole.
- the effect of the use upon the potential market for or value of the copyrighted work.
In a nutshell, if you sell fan art, it’s illegal as it does not fall under fair use.
The Difference Between Original 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 (based on preexisting work) that might be inspired by characters, settings, or something else about the original piece of fiction.
Original art, however, is usually created for an original purpose without including elements of known preexisting work.
That being said, you could probably argue that all art is fan art – because the original creators of art must have been inspired by something.
Is Doing Fan Art Commissions Legal?
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.
Now, if your friend asked you to create a fan art piece for them to hang in their bedroom, but they wouldn’t pay you for it, that would be legal, and you wouldn’t need to seek any special permissions.