Fan art and Copyright

Tutorial / 04 November 2020

The issue of copyright as it applies to fan art is convoluted and purposely confusing, to discourage budding artists from creating a situation that could compromise their financial future.

There are a lot of different sides to the issue: artistic freedom, moral philosophies, intellectual property protection rights, and more.

I’m going to use my limited space, time and audience to lay out the details of the legalities of fan art and hopefully dispel some myths.

Please note that this info is for general purposes and you should consult a legal professional in your area for more specifics about how copyright as it applies to fan art may effect you.

Is fan art legal?

Yes. There are those who will argue not, usually based on moral or financial interests. The truth is that, in any major civilized country, there is no law restricting what artists can create as it applies to copyright or intellectual properties. You are allowed to make art of your favorite characters. No question.

If I make fan art of a recognizable property, is the property owner granted copyright?

No. If you live in any civilized nation, laws may vary slightly, but the core of the law is that a citizen owns the copyright of any art that they create, the moment that they create it, regardless of content, unless that work was produced under contract for a client on a work-for-hire basis. This means that unless someone else hired you to produce the art specifically for commercial purposes outlined in a contract, you own the copyright to your artwork. Most countries offer additional protection with official copyright registration available for a fee, which will strengthen your case if you have to take someone to court for stealing your work, but the necessity of this will vary from country to country.

I can make fan art, but I can’t sell it, right?

Wrong. In most modern civilized countries, you are allowed to print and sell a limited number of copies of a recognizable character. The usual allowable threshold is 1000 copies or less. For example, if you create a wicked Superman pin-up, you are perfectly within you legal right to print and sell 700 prints of that art without compensating DC Comics. In most regions, if you want to sell more than 1000 copies you are required to approach the rights holder of the character and request permission, which usually includes negotiating a deal with them before printing that includes a sales percentage going to the owner of the character as a royalty. Keep in mind, it’s best to just keep your print runs less than 1000. If you sell out make a new print or a variation that clearly differentiates it. I keep all my print runs of merch and art under 1000. Remember, if you intend to sell more than 1000, it is always best to contact the character owner first and come to an agreement in writing, otherwise the character owner can ask a court to force you to release your sales records. If the character owner can prove that you sold more than 1000 copies, a court can level fines for damages, legal costs and a percentage of your sales to the character owner.

Keep in mind that big companies will use and abuse this system to their advantage. A great example from recent history was that Marvel had no problem with the original creators of Ghost Rider selling art and prints at conventions. When those creators told Marvel that they thought that they deserved some royalties for the Ghost Rider movies, Marvel instead sued them into oblivion for daring to make a living by selling art of a character that they created. Marvel was totally within their right to do this, as all of their talent must work under work-for-hire agreements, making Marvel the legal owner of Ghost Rider.

What could be changed?

There are a lot of varied opinions about how to improve this system, but I personally feel there needs to be even less restriction and more freedom for the artist. Prior to the modern copyright enactments of the early 1900s, when an artist created a piece that featured a famous person, scene or character, there was no question who owned it. Copyright laid with the artist and unless the piece was commissioned by a patron, the physical art was property of the artist until sold. A business could hire an artist to produce work for specific reprint or publishing, which usually consisted of a split of sales or a verbal agreement with the artist. It was possible to hire an artist on a work-for-hire basis, but this was generally reserved for specific logos and branding for business.

I’d like to see all restrictions lifted on the artist, allowing them to sell as many prints of their art as they want, regardless of content.

The entire subject has been made murky by modern business. Legal teams for big corporate property holders will argue that the visual representation, imagery and shape of their characters is a recognizable aspect of their business branding and is a Trademark in and of itself, and that your work devalues their property based on confusion with their own legitimate Trademarked products. Essentially the argument is that selling prints of your Batman fan art is the equivalent of selling prints or other product featuring the Starbucks logo.

Though this is the argument that entertainment giants will often lean on to win cases against individual artists, who rarely have the money to fight these giant companies in court, I think this argument should be turned on its head, in favour of the artist.

If pointed ears, a cape, cowl, and bat emblem make a piece undeniably recognized as Batman, or if a circle with two smaller circles on top and a pointed nose is undeniably Mickey Mouse, I would say that the character has become engrained in the culture. Any registered Trademarks should be declared void, and the characters should be considered to have entered the public domain. 

This is where corporate lawyers would clamour about unfairness, but the truth is that public systems and institutions are supposed to look out for the interests of the public first and are not obligated to protect the profitability and assets of a private business. Bottom line. Unfortunately, the system in North America has become so corrupted by money and special interests, getting those systems to change their perspective in favour of the public and artists is an uphill battle.

Some online merchandise and art posting websites have gone as far is to ban fan art, a position that I hope to see reverse, not just in my lifetime, but sooner rather than later. Fan art is a part of the culture and it is art. I feel that it should be treated with the same rights and protections given to any piece if art, without any restriction or differentiation.

Well, that’s all for today.

Here’s some art:

Thanks for reading,