Commissions of Fan Art (and other inquires)

[otherscape.livejournal.com]

Hello! First time poster here. :)

I was thinking of starting commissions soon and I have a few questions concerning copyright. I've looked through the tags and although I saw hints of this subject, I don't believe it's been fully discussed.

My first question is concerning commissions of fan art. I know selling prints of fan art has been discussed many times here, but I'm strictly talking about someone commissioning an image featuring a copyrighted character and using it for strictly non-commercial reasons, and the artist who drew the commission doesn't sell prints of that picture. I've heard two views on this. 1) The artist is breaking the law because they drew the image of a copyrighted character for money. And, 2) even though what the artist drew had a copyrighted character on it, the image itself is still original and belongs to the artist. Needless to say, I'm confused. I've done some research on this, but all I really get is opinion pieces and articles concerning the selling of fanart, which is not what I'm looking for. Or is selling fanart technically the same as a commission of someone's character, since both times the artist receives money?

This leads into my second question: does the artist own the rights to the image or does the commissioner, especially when the commission involves the commissioner's characters? Some artist's TOS's state that they own the copyright to the image even though the commissioner owns the physical image. Does this still hold true (if it ever did) if the commission depicts characters that don't belong to either the artist or the commissioner?

I'd love to hear opinions on this as well as good links concerning these subjects. I know a lot of what I'm asking is probably obvious, but I just want to be super sure about this subject before I write my TOS or conduct business practices.

Thank you.

Comments

[eewitsanne.livejournal.com]

I'm not entirely sure, but I think the general consensus it that it is indeed illegal, but it's highly improbable that the company is going to sue you because you made a quick $15 drawing someone's Pokemon or something. I think selling prints of fanart is illegal as well, but again, I doubt the original company cares *that* much? And as for who owns the rights, I'd say that if you draw the commissioned fanart, then treat it like a regular commission. I think it's pretty much up to your discretion; yes, it's probably not legal, but no, I don't think you'll get in trouble.

That was probably a really useless comment, sorry xD

[magickitsune.livejournal.com]

I'm pretty sure fanart is one of those "gray areas". Where it's technically illegal, but no one is going to stop you as long as you aren't making large sums of money.

Maybe it depends on the fandom. I've noticed some anime conventions ban fanart in the artist alley. But at others you can openly sell prints and commissions of fanart and everyone just whistles innocently, even with people who work with the companies who produce the anime attending the con.

So as long as it's not your main source of income, I say go for it.

As for your art with other people's characters? The image itself is still yours, and the commissioner can't do things like sell copies of it unless they purchased the commercial rights for the art when they bought the commission from you, even if it's their character.

Myself, I don't sell copies of commissioned pieces either, since they're not my characters and I think it would be in bad taste. But I do include in my ToS that I can use the image in any of my art galleries or portfolios.

[otherscape.livejournal.com]

Thank you. :)

[kriscynical.livejournal.com]

But at others you can openly sell prints and commissions of fanart and everyone just whistles innocently, even with people who work with the companies who produce the anime attending the con.

I had that happen. I draw fanart in my free time between paying work and I go to two local cons a year with it for fun in the artist alley. Since I only do two cons a year I don't make exorbitant amounts of money off of it, only a little extra cash to invest back into my freelance business. One of the cons is sponsored by Funimation who is the American license holder for Fullmetal Alchemist. A couple reps were walking through the alley and one of them flipped through my print book, stopped on my Fullmetal stuff, motioned for his associate to come look, then both of them just smiled at me and said "Nice!" with a thumbs up before walking away. Every page in my print books has a price tag stuck to it so they knew full well that I was selling it, but they sincerely didn't care... they just thought the art was cool. I also once had a member of the production staff for My Neighbor Totoro who was a guest at a con stop and look at a Totoro print I have and he didn't care, either, just saying that it was a nice piece again with a smile.

Most American licensing companies of imported anime don't care that much unlike American origin companies like Disney. I think it stems from the fact that fanart is so lax in Japan what with doujinshi sales and such. A lot of those companies see fanart and doujinshi as free advertising vs. what they'd make via legal proceedings.

As for selling prints of commissions I have always asked the commissioner if they care, and that's only if I receive interest in the image while at conventions (I have a section in the back of my print book that is for commission examples). Every single client has said no, the picture is technically yours, go ahead. One just asked that I put a sticker with a "(c) Her Name" on the back of it which was easily done with printable mailing labels and even then she didn't care about getting a cut of the profits. Every client will be different, though.

[taasla.livejournal.com]

The first part, yes it is illegal to do fan commissions. Do people still do it? Yes. (Heck, I commission fan commissions... a lot.) Really, no one is going to stop you if you chose to do commissions of, say, Pokemon.

You own the rights to the image. No one can take your image and go and sell prints without your say so. IRRC it doesn't matter whose characters are depicted on the image.

[ariakitty.livejournal.com]

As far as I know, it's not technically legal but most companies really don't care that much. Unless they are Disney.

A few years ago Disney made a big stink at an anime convention (I am not sure which one, I'll try to look it up) and as a result I believe this convention banned the selling of fan art so they wouldn't get sued.
Also, a friend of mine had a webpage full of fan-art of a Disney cartoon, and a Disney rep contacted her with a cease and desist letter. :/

I have never heard of any other company doing that, though. So I guess my advice would be go for it, but be careful where Disney characters are concerned.

[razzek.livejournal.com]

It's worth noting that there is a big difference between "copyright" and "trademark". All of Disney's characters are trademarked, a status which means that Disney must defend their likenesses every time they catch someone using them without explicit permission from the company. A preschool in Florida used Disney characters on their wall murals and was forced to remove them because they did not have permission from Disney to use them. This wasn't something Disney did to be evil, mind, it's just that, if they did not defend their trademark they would lose it. Some companies have more power to defend their trademarks than others, too.

[ariakitty.livejournal.com]

I didn't think about that at all!

It doesn't exactly do anything for Disney's image, though. They just come off looking like a bully.

[razzek.livejournal.com]

Honestly, if there's one company who could care less about what the little people think, it's Disney. XD You should try working for them sometime. *shudder* As long as their overall big image is preserved, they're fine. Though I really don't think whoever had to deliver that cease and desist to the preschool enjoyed doing it.

[ariakitty.livejournal.com]

I have heard plenty of horror stories about working for Disney. All the people I know who have done animation work for Disney don't have anything good to say about them. DX

[eclairpuff.livejournal.com]

That sounds like Ohayocon to me. I'm not sure if Disney was the reason behind their "No Fan Art" policy, but artists in the AA are no longer allowed to sell copyrighted/trademarked characters. Pre-printed or commissioned.
It kind of sadly murdered their AA, since most con-goers are there to buy fanart and ... other unmentionable fanarty things. Most kids lack the love of having an OC and getting that doodled for them instead. :(

[otherscape.livejournal.com]

So avoid Disney characters like the plague. Gotcha.

I have to wonder what Disney thinks about all the fanart out there. DA alone would be a legal nightmare for them.

[razzek.livejournal.com]

To answer the second question first, the artist always has copyright on the image s/he has drawn. In the case of fan art commissions, the same is true: the artist still has the copyright on the image s/he has drawn.

The first question is a bit sticky. The laws concerning fan work are vague at best right now (as far as I've heard). Most companies really don't care if artists make money drawing their characters. The financial resources required to take those people to court are often far more than the artist is making. The way I've always looked at it is: if I don't get a cease and desist letter, I'll keep doing it. There are always creative things that people want which the parent companies of certain franchises will never do. People who want those things will find a way to get them. Heck, a lot of people who work for big-name companies like Marvel sell fanart commissions at conventions outright and their companies just look the other way. As long as you aren't making thousands of dollars a month on fanart commissions, it doesn't seem to be an issue.

[otherscape.livejournal.com]

Okay. I doubt I'll make that much money anyway. Thank you. :)

[grygon.livejournal.com]

It is illegal, but no one has been made an example of otherwise half or more of the artists who go set up shop in artists alley at conventions would stop going since their fan material is most of their money making.

[taelifoe.livejournal.com]

Hmmm, this is definitely a more gray area, as magickitsune has already mentioned. I would offer a general caution about selling fan art, as I think it really depends on the copyright owner of the characters in question. Some people/companies don't mind so much about fan art circulating, but I have also seen someone get completely shut down for offering to draw free fan art of a book series. That might have been a rare case, but still, proceed with caution I'd say, as selling fan art can be kind of a gamble.

So far as who owns the rights to the image: As the artist, you own those rights, even if the person who's commissioned you owns the physical copy. Unless they've specifically purchased the image rights from you as well (and if it's fan art, I doubt you can really, truly get away with that) they do not own the rights to the artwork you have created. And if it IS fan art and the person/company who owns those characters hunts you down and starts a fuss, if push comes to shove, they can start a legal dispute if you've been making money off of artwork with their copyrighted material.

Most parties probably won't mind you selling fan art for something like $10-$15 a pop, but I still offer that caution. It might be the pessimist in me, but personally I would be concerned that if you're making enough money by doing certain fan art (we'll say something outrageous like $1000 collectively) then it might attract attention from the copyright owner.

This article on Wikipedia sums it up pretty nicely: http://en.wikipedia.org/wiki/Fan_art

[otherscape.livejournal.com]

It's probably good idea to do homework on the companies and how they perceive this issue. Just to be safe, I'll probably reject commissions of fan characters that would cost over a certain amount, or just avoid them entirely. Thank you for the advice.

[ocelotish]

One thing you may be able to do to protect yourself is to not offer say... pokemon keychains, but allow custom keychains even if someone wants a pokemon. It's still not 100% legal, but you'll be able to make a much better case for "They wanted my art that happened to be of a pokemon instead of waning pokemon art that happened to be mine." It also removes the possibility of claiming that you were using their characters for your own advertisement (which is a big part of it).

Also, it seems like most companies don't take much issue with fanart and if they do it's a "Cease and Desist" rather than a penalty. That being said, it is illegal.

[dinogrrl.livejournal.com]

I think your two points about fanart commissions are correct. Selling fanart of a copyrighted character that's neither copyrighted to you nor commissioned by the copyright holder is illegal. Will you get slammed with a lawsuit over doing copyrighted character commissions? Pretty unlikely. You just have to be aware that some companies are more protective of their property than others. Some don't care so much :p.

For your second question: the artist holds the rights to the image, unless transfer of those rights to the commissioner was specifically sorted out in the agreement, which usually includes an extra fee, sometimes a rather significant one. Yes, this still holds true even if the characters don't belong to the artist. The characters belong to the commissioner, the art belongs to the artist. The artist can do whatever they want with the art, but cannot use the character for new art unless given permission by the character's owner. The commissioner can use the character for whatever they want, but cannot reproduce the art.

[m-o-w.livejournal.com]

Those two answers are a bit inconsistent ...

Yes, the artist has the copyright of anything he produces, but that right can be dependant on others' rights. To what extent, depends on the strength of the claim. So selling prints of (fan)art of a copyrighted character that was commissioned by the copyright holder would have to be agreed upon.
But like tracing would not give an "artist" a strong claim to the resulting piece, an unoriginal character doesn't give the commissioner a strong claim to the content.

[dinogrrl.livejournal.com]

You're right, I didn't make myself clear. I was answering the second question in reference only to original non-copyrighted characters, as that's what I thought the question was referring to. Doing work of a copyrighted character obviously has different terms that go along with it.

[trimblecat.livejournal.com]

I think everyone's covered your first question pretty well, so I'll adress the second with a comparison!

If Picasso did a portrait of someone, it's still Picasso's painting right? ;) If you draw an image of someone elses character it's still completely your work and you own it.

[trentxandrew.livejournal.com]

I'm with trimblecat, the first question has been cleared very well. As for your second, thinking of it in terms of photography helps, too.

You go to a photographer for say, your wedding pictures. You own only the physical copies you purchased. The photographer still owns the images even if you are the subject matter. So you can't make copies or anything without their permission. Its the same with any media. The artist always holds the rights to the image.

[uozlulu.livejournal.com]

To be honest, I'd never take money for fanart because I respect the creators too much for that. However, if DA prints are anything to go by, people aren't cracking down. At least, not yet.

[kriscynical.livejournal.com]

I have done a few fanart commissions in the past for anime characters and haven't really worried about it. While it IS technically copyright infringement, most American licensing companies of Japanese imports aren't very strict about things like that in a convention artist alley setting not to mention just a single personal non-commercial use exchange like a commission. It's one of those gray areas that is generally accepted despite the technicalities of it.

I already said this to someone else in the comments of this entry, but I have had reps from American licensing companies openly not care about the sale of fanart at conventions. I do fanart on the side for fun between professional work and sell at two (three max) local cons a year in the artist alley for a little extra money for my freelance business. One of the cons is sponsored by Funimation (they own the American licences for Fullmetal Alchemist), and one year one of their reps was walking through the Alley and saw some of my Fullmetal stuff in my print book clearly labeled with a price tag. I thought he was going to say something about copyrights but instead he only motioned for his buddy to come look and then both of them just smiled at me and said "Nice!" with a thumbs up before moving on. I also had this happen with a member of the production staff of My Neighbor Totoro who was a guest at another con and saw a Totoro piece in my book. He didn't care about copyright; he just thought the picture was neat.

As for commission rights ownership, the only thing the commissioner owns is the intellectual property rights to their character, not the depiction of it in your piece. They absolutely do not own the piece of art that they commissioned from you as all rights to the image automatically remain with you unless they are otherwise negotiated through a contract with the client and are properly paid for. You absolutely own the copyright to any image you produce regardless of whose character it's of. The only way the client would be able to own the complete copyright to the image would be if they did a "buy out" of the image from you, which is typically 100-500% of the original purchase price of the piece.

For all questions about legalities and licensing and copyrights, I would recommend getting a copy of The Graphic Artist's Guild Handbook of Pricing and Ethical Guidelines (http://www.amazon.com/Graphic-Artists-Handbook-Pricing-Guidelines/dp/0932102158/ref=pd_sim_b_6). It has comprehensive explanations of everything business and legal pertaining to graphic artists and their clients and it also has form contracts in the back that are free to use. This thing is my professional Bible and it's extremely helpful.