re you an artist who enjoys recreating the characters, maybe you have even considered selling your art? But is it legal to sell fan art? To gain more of an understanding of selling fan art, we will be taking a look at a few key terms and definitions to see if it is worth your while to learn how to sell fan art legally.
Table of Contents
- 1 Disclaimer
- 2 What Is Fan Art?
- 3 How to Sell Fan Art Legally
- 4 How to Handle a Letter of Cease-and-Desist
- 5 Frequently Asked Questions
We must stress that this is only an opinion piece and cannot be taken as legal advice. If you are looking into selling fan art, you should seek advice from a registered and professional attorney who specializes in Copyright law.
What Is Fan Art?
First, let us deal with fan art and what it means. Fan art is any fictional character or art that is based on someone else’s idea. So, for example, let us take Micky Mouse. Any artist who creates their own work that contains Mickey Mouse in any way is fan art. Fan art has been created for many years and some creators even encourage their followers to make and share their artwork.
However, when it comes to copyrighted characters, things might start becoming problematic.
Fan art by Wolf Chung of the movie, Ralph Breaks the Internet; wolf chung, CC0, via Wikimedia Commons
Fan art can be any medium, meaning it can be a physical or a digital product. The artwork usually features characters or scenery not created by the person selling the artwork. Fan art can include art like drawings, but also includes books or short stories, any merchandise featuring copyrighted characters, or games and movies.
Fan art can also be a reworked image by another artist.
Selling Fan Art
Many followers have started selling fan art to make money. This can take on various forms, for example, creating character-based T-shirts or selling decorative works of art. However, is it legal to sell fan art in this way? If you consider copyright law, then most of these ways are mostly illegal.
Only the original creator can use any of the characters and nobody else is allowed unless been given permission or you pay royalties.
However, many are still selling fan art without permission and get away with it as they do not get too widespread with their work. Just because others attempt this, does not mean you should also try doing it. There are proper methods you can use to sell your fan art. Creators may even consider a lawsuit even if you do not sell the fan art. This means if what you are doing is affecting their sales, they can take action. For example, if you are giving away fan art or posting online on a large scale, this could be affecting their sales.
Selling fan art within the United States is not strictly illegal as it is not a criminal offense. However, the copyright law is there to protect artists and they can exercise their rights by suing anybody who infringes on their work. This means the artist who created an original work can take offenders to federal civil court.
If they are successful and win the case, you will be liable to make some kind of reparation, which means you will have to pay some kind of fee to them, and this excludes the lawyer and court fees that you will also be liable for.
However, if they lose their case or never make a case in the first place, nothing is done. So, you might think you can get away with it, but if you get caught, the federal lawsuits can get very complicated and expensive. Before you go into a lawsuit, you will probably receive a letter or an email to cease and desist from an attorney. If you do, the best option would be to do as the letter asks.
So, the best option would be to avoid selling fan art, but if you do, try to get permission first. Even if the artists or copyright holders do not seem to be all that interested in charging anybody, as they have good reasons to tolerate some of the fan art, and some may even encourage it. However, you still cannot do whatever you want. There are many ways you can cross a line, and then you can find yourself in legal and financial trouble.
The copyright holders could also easily change their minds at any time, so it is always best to stick to the rules.
What Does “Copyright” Mean?
So, what are copyrighted characters? All art can be placed into two categories under the main heading of intellectual property. These two categories are copyright and trademarks. So, what is copyright law? The law is there to provide exclusive rights to help artists to make and sell their work, as well as to display or perform works publicly.
This includes artistic, literary as well as recorded works, and includes things like dancing, tutorials, and photographs.
These rights are not just for one country but are international rights and are automatic, which means you do not have to apply for them. This means nobody else has these rights and if they infringe on these rights, they can be taken to court. If you do get permission, the artist also has control over how you use the art. For example, you can only use it for personal use, or you can use the art for commercial use.
Copyright law does have a time limit and normally expires 70 years after an artist has died.
For example, music that was composed before 1924 is regarded as part of the public domain. So, while the artist lives, or during the time after, you are limited in what you can do with the fan art. Also, the 70 years can be increased in some cases. For example, the original version of Mickey Mouse will no longer be under copyright after 2024. However, newer versions of the character will remain under copyright law.
What Is a Trademark?
Next is your trademark, which is also a type of intellectual property. This can be a design, sign, phrase, name, word, slogan, or product, which is directly associated with your brand or company. Technically, any logo or brand name that identifies a certain service provider is known as a service mark.
Trademarks can be owned by a single person or can belong to a business organization.
You can find trademarks on labels, on products, on vouchers or packaging, or they can even be displayed in a building. All of these are legally recognized as intellectual property. To make sure you can operate freely and do not run the risk of somebody else taking your idea, it is best to register a trademark.
However, if your trademark is unregistered, you are still somewhat covered by common law. This does not offer you the same amount of protection as when registering a trademark, as it can be difficult to prove. You will need to prove that customers identify with your trademark, and you need to prove that anybody else using your trademark is harming your business.
A trademark makes sure that your brand stays with you, so others cannot pass themselves off as your brand.
So, where does a trademark fit into artwork? People may accidentally use a trademark by including certain words or even a logo in the art or the descriptions or titles for their art. For example, you cannot use a coke logo anywhere in your art, even if it is just in the background somewhere.
Bigger companies even have what is known as bot crawlers on the internet. These bots search the internet for specific keywords, and if you use something specific to their phrases or words that are trademarked, the company can insist you take down the artwork. So, if you do get a request from a person or company to take down any copyrighted characters or trademarks, it is advisable to take them down. What goes into fighting the issue is not worth all the time and money.
How to Sell Fan Art Legally
The only approach to legally selling fan art is to obtain permission from the original artist. Some may use the Fair Use Doctrine as justification for the infringement. Fair use is found in section 107 of copyright law that allows a person to reproduce work, for private use, teaching, or research, as much as reasonably required, without getting permission from the owner. This might be valid for some; however, it can become a complex and unpredictable path.
The bottom line is you can get into trouble for distributing and selling fan art and it is best to simply follow the rules.
Getting Permission for Selling Fan Art
To do this, you have to create a letter or email that will convince the copyright holder to allow you to distribute or sell their art. Most likely, if you are successful, you will also need to pay a licensing fee. This fee can be quite high depending on how popular the copyrighted characters are. So, if you are not willing to pay up thousands of dollars for the fee, writing a letter might be pointless.
Even if you write a letter, many of the larger companies already have a set reply to all these kinds of requests, and it is usually no.
However, if you still want to go ahead with writing a letter, you should first do some research. Identify the owner or organization, then have a look at their website and contact details. Find out if they are willing to charge a license fee, and how much they are charging. If it is an organization, you should look for the best person to contact. You may have to phone or contact a few people until you reach the correct contact person.
Once you have everything you need, you can then start writing your letter. This should be a formal letter where you clarify who you are and what your intentions are. Inform them what works you want to sell and where and how you want to sell them. Make sure your contact details are included, and you may also want to add in some samples of your work. You can also add your website and relevant information. You can send a printed letter or an email, or to increase your chances, try sending both.
Once the letter has been sent, you need to wait for a response, you cannot proceed before you have written permission to go ahead with what you want to do.
Larger companies are more likely to give a negative response, but it is not impossible. Smaller companies and individuals are the ones that you stand a better chance with. If you do get a no from a copyright holder, the only real course of action would be to not go ahead with anything, do not sell the fan art. If you do, it means you are blatantly infringing on their copyright, which can become a more serious offense.
Some artists still sell fan art successfully in small numbers, so they tend to avoid being noticed.
Selling Fan Art Through a Service Provider
Can you sell fan art via a third party? Fan art has grown over the years, and some have come forward to make it more legitimate. Some programs have begun to operate, which makes sure all parties benefit. So, if you have received a negative response letter, there is another avenue you can try.
The copyright holder might be in partnership with a website that lets you legally sell fan art.
Each website delivers a special program, where they form partnerships with copyright holders. These websites are then allowed to sell the fan art and take a percentage from the sale which then goes towards royalties to the copyright holder. Below are examples of these types of website services.
The Redbubble site is popular and has many brands and is always adding more. All you have to do is to join the program and then agree to its terms and conditions. However, each brand does have its terms and conditions and you will need to use specific tags on the product page. By using the correct tags, it will be reviewed by the proper people.
You can only start selling the artwork once it has been approved.
The Teepublic site is another company that offers related services, but this time, you use your art to make T-shirts. Teepublic has been taken over by Redbubble, so most of the brands you find there, you can also be found on Teepublic.
The DesignByHumans site is the third website that offers the same service of selling fan art, but it is separate from Redbubble. However, you also create T-shirts, and you are paid a commission on the sales you make. The designs must again be approved before they are added to the website.
Approval can take anything from two to four weeks.
Other Methods for Selling Fan Art Legally
There are a few more ideas you can use to try and sell your fan art. Although, these methods are not very practical. One of the methods is to wait for 70 years or longer after the copyright holder has been deceased. This could work if you know the copyright expires soon from a holder that has been dead for many years already. The final option is to move to a region where the copyright law does not apply.
It is said that only three regions that have no copyright laws, are San Marino, Eritrea, and Turkmenistan.
How to Handle a Letter of Cease-and-Desist
When you are making money from fan art and the copyright holder finds out about it, they will send a cease-and-desist letter, which you should read thoroughly and take seriously. The letter will most likely be sent from an attorney and usually uses quite intimidating language. If you glance at the bottom of the letter, you are likely to find a list of what they want from you.
They may even have included an alternative like paying a licensing fee. This could be something to think about if you can afford it.
Your reaction to the letter should be an immediate response. Inform them that you will immediately stop selling the fan art. This should be all you need to do unless they are seeking money from what you have already sold. You can also be direct with them if you think that your artwork is not in violation. However, you might want to get an opinion of an attorney first before you do this.
You can also try negotiating the use of the artwork and gain the copyright holder’s permission. You might also settle on an agreement for a licensing fee. Some copyright holders value fan art and might be willing to allow you to use the fan art on condition. If you cannot afford licensing fee, it could be the end of the negotiations and the end of the road for you. Many of the larger copyright holders will not negotiate unless it involves a lot of money, and they already have contracts with other larger companies.
When it comes to infringement, in many cases, it is more than simply black or white, there are also many gray areas.
If this is the case, and nobody is sure, then it needs to be decided by a court of law. There might be claims of “Fair Use” or other loopholes. If you do land up that you are getting sued, you will need to get yourself an attorney. These types of cases are taken to federal court and will cost a lot of money, whether you win or lose. So, it is best not to land up in this position.
Selling fan art comes down to this, if you are selling and making a profit without getting permission from the copyright holder, you can be sued for infringement. An ideal solution is to sell fan art on a website that already has all the legal agreements in place. Otherwise, you should pursue creating completely original work with no strings attached.
Frequently Asked Questions
Is It Legal to Sell Fan Art?
There is an easy question you can answer to find out. Do you own the artwork? If yes, then you have all the legal rights to sell, but if not, you are infringing on another person’s work and should not be selling anything without permission.
How Can You Sell Fan Art Legally?
How to sell fan art legally can become quite complex. However, it is best to get permission from the copyright holder. You can also use certain websites to sell your fan art, these websites offer a service where they already have all the legal requirements covered.
Is It Okay to Create Posts for Fan Art?
When it comes to social media, it is generally okay to post fan art as long as you do not earn anything from it. However, using copyrighted characters or trademarked words or phrases in the descriptions can be seen as an infringement. The issue can be quite controversial in many cases.
Can You Sell Fan Art on a Platform Like Etsy?
It is not legal to sell fan art on any platform if you do not have permission. However, Etsy cannot be held liable for any infringement by a user. The copyright holder must make a complaint before a listing will be removed. Ultimately, Etsy does not have to do anything about infringing listings. If there are too many complaints, Etsy can remove the user from the platform.
Why Do Some Sellers Get Away with Infringing?
Not all companies mind you using fan art as it helps to get more exposure for the brand. Some copyright holders do not follow up every time, as it can be time-consuming. You might also be selling only small amounts and being careful, so the copyright holders cannot find you. So, you might be okay, but you are still violating the infringement law.