Advice: Fanart

[purpule.livejournal.com]

A question/advice query for you all
I'm sure this is an age-old argument, but I'd like to bring it up again because I always appreciate advice and information on what I do.

The topic being Selling Fanart.

People do it all the time, at conventions, online - they draw characters from computer games and shows, often in their own style, and sell them on for money.


Now, my question is, is this practise legal?
In my own set of commission rules, I say that I cannot draw copyrighted characters (though, that should probably be "trademarked characters"), but truth be told I would actually love to sometimes.

Is it a question of legality, or is it one of ethics?

Comments

Mod Request~

[sigilgoat.livejournal.com]

If you could edit your entry to be titled something like "Advice:Fanart" or something to that extent, that would be great!

Thank you for asking this question, I hope to hear some good discussion!

Re: Mod Request~

[purpule.livejournal.com]

Done and done :D

[thornwolf.livejournal.com]

To be honest I've wondered about this for years myself. I went to comic con and there are a LOT of fan works being sold there. I suppose it depends on the company involved. Most won't pursue it since it doesn't directly affect their sales. However, Disney, for example, jealously guards their characters (even so much as sending cease and desist notices to nurseries who paint their characters on wall murals) whereas Hasbro seems to encourage fan works. As they're not directly conflicting with items they sell, I assume this is why some companies don't mind much. It would be different if you were mass producing, say, My Little Pony merchandise that directly conflicts with items Hasbro themselves sells offering it as "official" anything rather than fan works.

[shukivengeance.livejournal.com]

It is indeed an infringement of copyright and there are conventions which have banned the sale of fan art. Basically, the problem lies with the artist making a profit off the intellectual property which does not belong to them.

Action being taken on this isn't limited to anime either. DC comics and Disney among others are well known to send cease and desist letters.

Privately, it's very difficult to enforce this though. An artist could take all the fan art commissions in the world and if they weren't publicly posted nobody would know. I imagine this is why anime cons have been targeted.

[otherscape.livejournal.com]

That's odd, because there are a lot of DC comics and Disney commissions over on DA, and a few artists who do commissions of DA characters don't seem to get any cease and desist orders. Did they just give up or something?

[breakspire.livejournal.com]

People are making tons of money off of My Little Pony fanart these days. It seems like the general consensus there is that Hasbaro doesn't mind it.

My ethical problem with fanart is that you're making money off of an already established popular thing. For example: there's been a ton of plushies on ebay recently of MLP characters, some of the well made ones of popular characters go for thousands of dollars. I imagine that if the same seller were to make the same quality plushie of a regular animal it wouldn't go for as much money.

There's already a massive fanbase of people who like MLP, so there's an instant customer base. You don't have to make some character up from scratch and build it's popularity up. That's been done for you. All you have to do is re-create the character design.

Don't get me wrong, there are some creative interpretations and brilliantly crafted fanart that I love. I would just feel uncomfortable doing it myself for a profit.

[mariechan.livejournal.com]

What if it's a fan pony, by the way? I'm just a bit curious.

As far as the auctions go I think it's different than someone directly asking you to make it for them. In that case I think they are more interested in buying your services if they went directly to you.

[hellebore.livejournal.com]

I personally don't feel comfortable doing it at all. I'd be pissed if someone made money off of my characters without my consent!

[anarchicq.livejournal.com]

THIS!
This this this so much this!
I actually have it in my TOS that I will NOT do fan art. I will do RPG and LARP characters though. Yes, I will draw your generation 8 Malkavian. Happily!

[kiriska.livejournal.com]

Technically it is illegal, but very few companies care to pursue it. (Disney is very infamous as being an exception and has been known to file lawsuits against day cares with Disney-themed murals painted.) As a result, it becomes mostly an ethical issue and a personal choice.

[aerospiritual.livejournal.com]

it really, really depends on the company/studio.

I know that Hasbro doesn't mind in the least, that people are creating and selling MLP fanart, and from what I have heard, even encourage it. but other studios, like Disney, would have a much different stance on it.

what would be really neat, is if there was a directory or something set up that listed the companies who don't mind people selling fan art and the ones that do.

[purpule.livejournal.com]

I have heard that Hasbro seems almost encouraging of MLP fanart - but I keep hearing that from second hand sources, so I don't know where the official line is on that. I would definitely love a list! If some companies really didn't mind, then I'd be all for it, but because it's technically illegal It's an area I'm afraid to get into.

[otherscape.livejournal.com]

It's technically illegal, but many creators/companies don't really care so long as you don't sell a massive amount of prints or merchandise. I think at anime conventions you can only sell a certain amount of fanart prints. Individual commissions they don't really care about either. Of course there are exceptions like Disney. I'm not sure about other companies such as Dreamworks or Pixar. I'd love to know what DC and Marvel's stance on this is. I heard a while ago that Marvel actually encourages this practice, though I can't remember where I heard this from.

It also depends on what site you're selling them out of. I know DA doesn't allow prints of trademarked characters to be sold, but I don't know about FA.

[onesteptwo.livejournal.com]

Disney owns Pixar ... I'd imagine Pixar characters are off limit now, too.

[amarafox.livejournal.com]

I do it all the time. So long as it isn't Porn or Pern or mass production and you're smart about it, it's technically illegal, but in many cases encouraged or, at the very least, ignored..

Also, the trademark applies to names and not to the character designs. The designs are copyrighted. You get in doodoo if you break the trademark.

IE: Drawing Yoda is OK. Putting 'Yoda' on it crosses a line.

I totally don't feel uncomfortable doing it and I find a lot of the anti-fanart crusaders (the ones that will, say, report a fan-art fursuit, a one of a kind things) to be a little too overzealous.

I've never been to a con that isn't a furry con that has banned fan art.

[purpule.livejournal.com]

I feel uncomfortable doing it only because I don't like the idea of stepping on anyone's toes. If some companies are cool with it or have an active ignoring it view, I think I'd be a lot more likely to do it.

[mariechan.livejournal.com]

IMO: I think more people prefer to commission their own characters rather than fan characters. Most commissions I saw with fan art involved fan characters which I think is an even more grey area because who else would this person go to to draw their chars? I actually haven't seen a lot of commissions of canon chars unless they are interacting with someone's fan character. So I dunno.

[taasla.livejournal.com]

It seems to be more common in furry to have OCs. I've yet to find an artist whom is willing to do my human OC interacting with a videogame char.

[fatkraken.livejournal.com]

Yes it is illegal

Is it immoral though?

Personally I won't do it (I've actually turned down significant amounts of work because of copyright).

I apply the Golden Rule: do unto others as you would have them do to you. I would not want anyone making money from a character of mine without asking (and receiving) permission first. It's basically as simple as that for me.

I know "corporate" characters are rather different from "creator owned" characters, but the rule still stands for me. Then of course there's the difficulty of drawing that line: many properties which are owned by a corporation still give the creatives a lot of control and a lot of personal input, especially with "Auteur" showrunners, the recent MLP being a good example.

This only applies to making money BTW. I've made lots of fan works as gifts and personal projects, but I will never make one with the intent of selling it to the general public.

[vellacraptor.livejournal.com]

It IS legal only if considered "parody" or "homage" so it can bypass copyright laws.

But it's only ever a problem when the company takes action against it. Most don't and I have yet to see one that has.

Well, that's not entirely true, I know Homestuck tells it's fans not to outright sell anything (trading and such is okay?), and they've stuck to it. :3

[obsidianwolfess.livejournal.com]

It's illegal, and I think it's terrible that people use popularity as grounds to say it's A-OK to sell fan art. Sorry, it's not. :\

[clockmagic.livejournal.com]

This.

[silvertales.livejournal.com]

It's both a legal and ethical issue.

Production of fanart for sale is copyright violation, period. There is no getting around that. I'm with obsidianwolfess in that I find using popularity to defend the sale of someone else's intellectual property without their permission NOT ok. It doesn't matter if you don't get slapped with cease and desist orders, you KNOW you're breaking the law.

Ethically? I'm always amused whenever I see fanartist suddenly up in arms over spotting their art used without permission. I'm sorry, but that just reeks of hypocrisy. So, it's ok for you to make money off some someone else's intellectual property without asking, but WOE BE UNTO the (insert epithet here) who dares do the same.

Don't get me wrong, theft is bad and wrong... but you can't be ok with using someone else's creative property and NOT be ok with someone else doing that same to you and NOT be a hypocrite.

[shukivengeance.livejournal.com]

Fully agree with this. "Everyone does it" or "*company name* doesn't seem to mind!" doesn't invalidate the law.

[foxxieangel.livejournal.com]

I've always been unsure about this since while technically illegal many professional manga illustrators start out with doujinshi. In regards to MLP it seems that for the moment Hasbro don't care but they haven't stated this so it's not something people should just assume. I think people are taking Lauren Fausts interest in the fandom as permission. While she created the current version of my little pony I would assume they are still copyrighted/trademarked to Hasbro.

[fatkraken.livejournal.com]

Doujin is a Japanese phenomenon, and Japan is an entirely different kettle of fish with regards to their attitude to copyright. Don't attempt to transplant any lessons from the Japanese system to the rest of the world, it doesn't work that way.

[fatkraken.livejournal.com]

"If questioned; I am charging money for the labour of painting, not charging for the use of whatever characters are being used in the painting."

This doesn't stand up. At ALL. It wouldn't stand up in court and it is not a reasonable moral get out clause for using someone elses design to make money without permission. I'm not gonna tell you to stop doing the pictures, Tto be perfectly honest I'm arguing the toss and it is actually relatively harmless, but don't kid yourself. Just draw the picture without making up little just so stories to feel better about it.

[aerotheacrobat.livejournal.com]

Technically it can fall under parody, which is legal. An artist's take on it will usually not be perfect on model nor will it be a pattern or image that a company is selling. Not to mention, the amount a fan artist makes will not be worth the court/lawyer cost for a company to even send cease and desists.

Ethically, that goes person to person. Drawing fanart or cosplaying/making cosplay pieces weather for yourself or profit is fine to me. Keeps a fandom going longer, really and isn't a majority of what people buy.

[neolucky.livejournal.com]

Welll...at most Anime cons, it IS the majority of what people buy. =\

[mariechan.livejournal.com]

I think I'm going to do another post about this.

Personally I never got a lot of commissions so there was only like one or two times I did fan art as a commission. They were things that I really wasn't that in to, but I needed the money for college and stuff. I guess I'm not really looking for sympathy, just saying that it was a job and I did it cause I don't get a lot of commissions and I could use the money.

That being aside how would you guys feel about other artists doing this, especially when someone asks them to draw this? What if the owners of the character are indifferent, or even encourage it? I'm just a bit curious, I do feel like there's a lot of grey areas, and perhaps it's better to make the judgment for what you would do in the situation rather than what other artists would do.

I guess it feels a little uncomfortable of the topic in general because I've come across those who were out to police other artists for doing this.

[frazzled-niya.livejournal.com]

Pretty much everyone else covered what I have known about fanart.

I think though do what ever you feel comfortable with if someone does approach you to draw Naruto or something and you don't want to do it tell the person no :)

[plastickaiju.livejournal.com]

If it is your original idea for an art piece done in your own style with a significant amount of your own... "flair" we'll say, it falls under fair use law as transformative or parody work. It really only becomes an issue when there's not enough of a difference to set it apart from the original work, and unless someone is making boat loads of cash off of the product or work they are selling, the owners of the copywritten characters won't bother.

[otherscape.livejournal.com]

This reminds me of another thing I wanted to ask. Say Randomwolf55 commissions me for his wolf sona but wants the Superman cape and symbol on him, even though his sona himself has nothing to do with Superman. Would that still count as copyright and/or trademark infringement?

[shukivengeance.livejournal.com]

That would fall under parody, I believe.

[sovy.livejournal.com]

"Now, my question is, is this practise legal?"

It depends if you can cover yourself with Fair Use or not.

"In my own set of commission rules, I say that I cannot draw copyrighted characters (though, that should probably be "trademarked characters")"

Fan art is a derivative work even on copyrighted characters because it is admitting that you drew the character that is owned by someone else. Otherwise it would just be art. What makes a trademarked character problematic is that your character only has to be confused for a trademarked character by the public before an injunction is lain down on your creation.

[razzek.livejournal.com]

As I understand it, drawing or writing any fan work, whether you sell it or not, is currently illegal. So, as far as I'm concerned, I'll do it until I get a cease and desist. I don't sell much fan art, but I'm not bothered by selling it at this point given the current laws.

[holydust.livejournal.com]

It actually depends on the studio (and in many cases, the location of that studio).

Japan has a flourishing doujinshi (fan-made comic) market, and thus, their rules on selling fan art tend to be a lot more fluid. In short, if it's fan art related to a Japanese work, odds are it's not illegal to sell it.

If it's an American work, odds are, it is, but on a case-by-case basis; Disney, Marvel, DC, absolutely illegal and you will eventually have to deal with trouble SOMEWHERE down the line. Hasbro and MLP; I'm not entirely sure. I'm sure Faust's camp probably has its own set of rules they'd like to abide, but Hasbro is probably firmly in the "don't do it" camp.

I tend to just avoid anything American because it's not worth the trouble.

Many people just go ahead and do it anyway, assuming the "everyone else does it" and the "there are too many of us for me to ever get caught" standard. It doesn't make it less illegal, it just means they don't care.

It's up to you to decide whether you want to risk the bother or not. I don't.

[ocelotish]

Without a doubt, it is illegal, but many corporations don't pursue it.

My personal line, at time of posting, is that I won't do prints or any sort of mass production of fanart (barring parody). This means no prints of Naruto or whoever. I also wouldn't use it to advertise myself particularly, but it would still be in my portfolio/gallery. What I might do is allow fanart for commission when asked. In that way, I'm not promoting myself using other people's characters, the commissioner asked for subject. I also would refuse to do major breaks of character dramatically - basically something the creator would disapprove of. This is about the same thing I'd do for a private characters too.

It's a bit of a grey area, which it always will be, unless completely banned or completely allowed, but I'll try to make it more palatable by not using other people's characters to advertise myself.

[dustmeat.livejournal.com]

Hear hear! I do not sell prints of say, Thrall or Jaina. But if someone wants to pay me for their Warcraft toon drawn all cute? Sure!