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Earlier today I saw a tweet going around that had thousands of retweets. It was a photo of some Star Wars fan art.
Now, here’s the thing: it wasn’t just a photo of their art, it was a photo of their art promoting prints that they were selling.
I have a lot more to share on the topic of fan art, but let me get the most important piece out of the way: it is 100% illegal to sell fan art.
You cannot sell derivative artworks made of copyrighted characters, and the only exception is if you have written permission from the copyright holder.
For some reason, people think it’s ok because they see tweets like this going around with thousands of retweets of someone’s Star Wars fan art where they are promoting their posters for sale.
That’s not legal, but it’s easy to think it’s legal when you see a lot of other people doing it. That’s confirmation bias.
You only see the people who are getting away with selling derivative artwork, you don’t see all the people who are getting taken down.
Every day, Disney, and previously Lucasfilm, is sending DCMAs or Cease and Desists telling people to take down their artwork.
If you’re profiting off of that, you’re opening yourself up to legal problems. You could possibly be sued, not just sent a Cease and Desist.
The Myths of Creating Fan Art
The first myth is thinking that something’s ok because you see other people doing it, but that just means they’re getting away with it. You have to look at the laws.
The laws say you are not allowed to profit off of someone’s copyrighted characters.
Myth number two is thinking that as long as you’re not profiting off of creating copyrighted characters or creating derivative works from copyrighted characters then you’re ok.
You cannot be sure that creating fan art of copyrighted characters is legal as long as you’re not profiting from it.
The only way you can be sure is if you have written permission from the copyright holder.
They can still go after you if you are creating derivative works from copyrighted characters. Now, you may be thinking, “I thought that it was ok to recreate work. I thought fan art was totally legal.”
What you may be confusing this with is something called Fair Use. Fair Use allows you to make commentary or parody on a piece. News stations can show images or clips of copyrighted material without infringing on that copyright because it’s under Fair Use. They are making commentary on something.
An example of Fair Use when it comes to recordings, either video or audio, is if you play a song on your podcast. You can play a clip of that song and talk over it, talk about it, and share your thoughts on it.
What you cannot do, without paying royalties, is simply take a copyrighted song and play it as the intro to your show or play it as entertainment during an intermission of your show.
The Value of Licensing
When you’re using copyrighted material, whether that’s a song, a video, a character, or anything else that’s copyrighted, you are deriving value from that. Value is being created by that copyrighted material, and that’s why you have licensing.
In 2013, Disney made $41 billion dollars with licensing. The reason they can do that is because they’ve invested so much.
They’ve invested millions upon millions of dollars into creating and marketing these characters.
The reason your fan art gets so much attention is because you’re drawing characters that Disney has invested in people loving.
It isn’t because of the line quality or the colors that you use, it’s because Disney has marketed that. They pay Harrison Ford $23 million dollars to be in a movie and that’s the reason your Harrison Ford fan art is getting so much appreciation.
People love this character because Disney, Star Wars, and Lucasfilm have made great movies (at least most of them, we won’t talk about the first three episodes).
They’re investing tons! They’re creating value and the way that they’re able to get compensated for that value and significant investment is through licensing.
If you have a plain lunchbox that’s just metal, no kid is going to want that, but if you put R2-D2 or BB-8 on top of that lunchbox, the kid is going to want to buy it. That is the power of licensing.
The lunchbox manufacturer pays Disney for the license rights to be able to use characters on their lunch box. Disney is getting royalties for it because they created the value. That’s why people are even interested.
Notice that I’ve said “Star Wars”, “Disney”, “R2-D2”, and “BB-8″—those are copyrighted names of Disney. The reason I can say them in this video is because it’s under Fair Use. This video is commentary on things like licensing, trademarks, and copyrights.
Learn the Laws
Let’s say you’re an artist, you create a comic, and you invest in making this character a bunch of people love.
You’ve written comics over and over, every single week, every single day even, for years upon years upon years. You’ve bought pens, you’ve spent your time, you’ve invested in making books, and shipping them out.
How would you like it if other people started making derivative works of your character that you’ve invested your life into and started selling those derivative works?
They are profiting off value that you created and put into the world. The reason this doesn’t work is because they’re basically syphoning the value and investment you’ve made.
The way this is able to work legally is through licensing. They would only be able to do that if they asked you, received written permission, and you got a commission or a royalty on every sale of their derivative work.
If you are a fan artist, you need to understand that the reason your work gets a bunch of attention when you create derivative works from these copyrighted characters is because people love those copyrighted characters.
Why do they love them? It’s because the owners of the copyright have invested so much in their story. They’ve invested a ton in marketing.
You don’t want to be naive here. Your feelings, emotions, and sense of community you have with other fan artists do not matter.
It is 100% illegal to create fan art and sell it. Period. Unless it is Fair Use or commentary, you cannot do it.
Don’t go off of what other people are doing. Don’t be naive about this or you’re going to get in very treacherous territory by doing this.
You need to learn what copyright infringement is. You need to understand that selling fan art, whether you can get away with it at a trade show, on your website, or without getting a Cease and Desist, is not a good idea.
I’m saying all of this because I know a lot of people are naive about copyright infringement and the legalities of selling fan art. I don’t expect to change your mind if you’re making a living off of this.
There are a lot of people who make a living off of fan art and they have a lot of emotions and their careers tied up into it.
You Can Be Original
When I was doing research on this, I saw lot of people commenting, “If it wasn’t for fan art, I could have never gotten my start as an artist. I could have never become a professional.” That is a defeatist attitude to have.
You absolutely can become a professional artist without stealing someone else’s intellectual property or infringing on their copyright by using the characters they’ve created.
Yes, it’s hard. I know you’re thinking, “If I create my own characters people aren’t going to like them as much as they like these other characters that are copyrighted.”
Of course! Because someone worked hard to instill meaning into those characters. You’re just piggybacking off of that illegally. That’s just something you need to understand as an artist.
It is hard to be an artist, but you absolutely can do it. Don’t make excuses for this. My hope is that if you didn’t know the legalities of this stuff, you now understand that selling fan art is not legal.
You cannot profit from fan art. You cannot profit from infringing on someone else’s copyright. When in doubt, get written permission from the copyright holder.
Now, I know this may come as a shock to many of you. Maybe you just Googled or YouTube searched “Can I sell fan art?” you found this video, and this guy seems like he’s just ruining your party. He’s raining on your parade by saying, “You can’t do this. You can’t do that.”
I’m not here to ruin your party or rain on your parade, I want to help you. I was naive before, and many people are.
What’s worse than getting your bubble burst right now is investing your life into making a living on fan art then getting a Cease and Desist.
That’s what I don’t want for you. I hope, if anything, this is the very starting point of you doing a lot more research on the legalities of fan art and using your creative mind for something else.
I know you’re creative. You’re not just tracing existing artwork, but you’re creating derivatives. You’re instilling your own story into something. You’re breathing life into it.
You have a creative spirit. You can create your own things and I just hope that you take that and you turn it into something great. I hope you make something new of your own.