support-all-artists:

keyade:

If you see posts on tumblr going around claiming that fan art sales are illegal, such as this one by eleanorappreciates, please check your facts before believing them. This claim is quite inaccurate to anyone with legal training. This is probably a surprise to my followers who believe I’m a full-time artist, but I’m actually a 4th year law student.  

Here’s the thing: In all my 4 years of study (with a focus in copyright law, no less), I have never been able to come to the conclusion that fan art sales are illegal. The legality of fan art is, in fact, a grey area.

My take is that fan art sale is more likely to be considered LEGAL than not. Evidence shows that fan art sale is often (but not always) mutually beneficial for both creator and fans. (This is also the conclusion I’ve reached based on personal observation, having been both a fan artist and copyright law enthusiast for some time.) The technicalities of this area of law are VERY COMPLEX and would take a whole final year thesis’ worth of space, so I’ll spare you. Just know that substantially creative fan art comes under the ‘fair use’ exception adopted by most respectable common law jurisdictions (if not, the ‘quotation’ exception of civil law jurisdictions which is basically the same thing), and it is generally ALLOWED. Do note that your work has to be sufficiently transformative – you have to add some sort of interpretive (commentary, satire, parody…etc) or artistic value to it in order to have your own copyright over your fan art. A direct copy in the style too close to the original may break your case because it isn’t different enough to be considered a fair derivative use. Different jurisdictions have different requirements of ‘difference’, and Asian jurisdictions tend to be more relaxed, surprisingly. In short, be as creative as you can and don’t copy the style of the original. It’ll make copyright owners less inclined to consider legal action, and your work will be better received. 

Why is transformative fan art probably legal? Ever heard that the dwarf standing on the shoulders of the giant can see further than the giant himself? Most original creators today were fan artists once, and they understand how important it is to be allowed to learn and profit from the creativity of people before them. Best innovations are always built upon the artist genius of earlier works, and fan-art creation is a critical phase in the emotional and financial journey of many of the most successful artists in the world today. Fan art also directs profit back to its original market (that of the creator), and most legislators and copyright-holders embrace this whole-heartedly. How else do you think anime/game conventions and fan artists are able to survive so well to this day? The combination of legal uncertainty in the sphere of fanart, plus the greater likelihood that it will be protected by transformative use exceptions, plus the willingness of most copyright owners to forgo suing make selling fan art safe for a vast majority of artists. Therefore, make high-quality, thoughtful fan art and you’ll be fine in the eyes of the law and doing a huge publicity favour for the original creator. It’s a wonderful way to thank them for making your life better with their amazing stories, and they’ll be more than glad to have inspired you. 

HOWEVER, if the original creator doesn’t want you to sell fanart for specific reasons, it’s another matter. Note that while they might not be able to take successful legal action against you, we should still respect their wishes as a matter of basic human decency. Not everything is a battle of legal rights – we shouldn’t wait for the law to force us to be considerate, supportive people. There are many factors influencing the sale of original works, and sometimes, it just happens that fan art will not fit well into the equation, causing the author to suffer instead. E.g, If Undertale creator Toby Fox suffers actual losses from fanart sales (and has clearly said so), stop selling Undertale fanart as a sign of support and appreciation for his hard work. This is not because selling fanart is illegal, but because you’re considerate of other people’s livelihoods. It doesn’t matter if they’re a big corporation, or an indie artist. If they don’t want you selling stuff with their characters, just don’t. (Note that selling and creating fan art are different matters) Respect their creative work and create something else. And by all means, continue to sell fanart only from other stories/productions that will be loved and encouraged by their creators. 

So artists, you aren’t doing yourselves a favour by being ignorant of copyright law and spreading non-factual claims. Read up on this fascinating gem that is copyright law, learn everything you can and form your own well-reasoned conclusions. Don’t simply believe everything you see, no matter how well-intentioned or passionately written. 

Thanks for sticking with me and happy transformative fan-art creating/selling!

This is good information about the grey areas of fanart. I hope this answers some of the questions I’ve received about the matter of selling fanart, especially for those who have messaged me asking about videos such as this one

Although it should go without saying, I just want to remind those who read this that the OP is talking about selling the fanart that one creates ONESELF. It is never okay to sell fanart made by someone else, because needless to say, you’re making a profit off of someone else’s work. If you are at a con or event and you recognize fanart that is sold by someone who is not the artist, then the best thing to do is to notify the artist.

This is a good rundown of the current state of copyright and fair use in the US (not in any other country, where copyright law can vary widely and fair use as a concept may or may not even exist).

But I think it casts a somewhat rosy glow over the situation.  Notably, the OP is kind of glossing over the importance of fair use as a legal gray area.  That means that no, it’s not illegal, necessarily.  But it’s also not legal, necessarily.

The way the law works in most places, you have your stuff that is obviously legal or illegal, which is laid out in (more or less) clear language in constitutions, bills, etc.  And then you have an awful lot of law that is controlled by legal precedent: that is, the weight of the many, many judgments that have been passed by the courts that came before you.  

In the last 10 years or so, courts have been increasingly favorable toward fair use and transformative works, and this has built up a growing body of precedent that is slowly swinging the pendulum in the favor of creative endeavor.  However, to say that most copyright holders support it is, I think, a gross exaggeration.

For one thing, copyright holder =/= creator.  Creators tend to understand about inspiration and creation, and so long as you’re not fucking up their ability to keep the lights on, they tend to be fairly supportive.  But copyright holders are often publishers, music labels, movie studios, etc. which sit on top of archives of huge copyright libraries that they have collected from the many creators who’ve signed on with them.  And because that intellectual property is basically their main financial asset, they continue to push back hard against the perceived danger of transformative works, especially through industry associations like the MPAA and MIAA. (Fuck them, btw.  They’re terrible.)

Thanks to all that legal precedent–for which we can thank those industry groups in a lot of cases, because they spent the entire decade of the 2000s suing the pants off all of us–and the horrible public image that behavior resulted in (seriously, fuck those guys), you’re FAR less likely to get sued or even threatened as a transformative artist than you once were, but it does still happen.  And individual artists, especially fan artists, are often not in a position where a lawsuit is an acceptable expense of time and money for them.  (Incidentally, if this does happen to you, look into groups like the Organization for Transformative Works or the Comic Book Legal Defense Fund, which can sometimes provide free legal assistance.)

It’s also true that the ins and outs of copyright law have little bearing on how individual websites run their shops.  Youtube is a business; it can set up its site content policies however it likes, within reason.  You might expect that these sites would aim to emulate or parallel copyright law, and they do, but 1: they span nations and sometimes have to compromise to meet the laws of different countries and 2: they’re big and obvious targets for industry groups to go after, and they sometimes buckle to the pressure of big money that those can bring to bear.

So, just because the law says you can sell your fanworks doesn’t mean Redbubble has to agree to carry them.  And just because various courts have said other people can sell their fanworks doesn’t mean that you are 100% definitely not going to be legally challenged on doing so.  Because fair use is a gray area, it means that the matter is open to a lot of interpretation and thus it tends to get settled before a judge when the question comes up.

But it’s an area that’s changing fast.  Right now, in the US the DMCA is under a lot of pressure.  It’s the act that dictates a lot of how intellectual property law functions in the Internet age, and it’s out of date.  Its failure to keep up with the functional changes in how intellectual property and physical property have blurred (e.g. do you own your e-books?) is creating a lot of tension. And then trade agreements like the TPP have clauses that would force new intellectual property standards on countries that sign up, in some cases superceding their own laws.  So who knows what the next year or three could bring?

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