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FAN ART, COPYRIGHT LAWS?

Art | Comics


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Dec 2015
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Dec 2015

May 2017
j772935
Dec '15
1


well I just found this website today through a google search that led me to a
thread here talking about the artist Sakimichan. The thread was made back in
August or something so I didn't want to revive it. If you don't know Sakimichan,
she's a digital artist who makes like 99% fanart and sells it at conventions,
sells print/posters on online stores, gumroad, and through patreon (where she's
currently making thousands). There was a discussion over the legal issues and
how she could get into trouble with companies like disney, DC etc. people
mentioned that the reason she hasn't is probably because she has a license. I
tried googling about it and came up with nothing really useful, so I thought I'd
just go back to this site and ask about it here, cause I'm planning on going on
my first convention, where I have a mix of original stuff and fanart. I also
plan to sell leftovers online. Would I really need some kind of license for
that, and if so how exactly do I go about getting it?

The last time sakimichan was at a convention, it was NYCC just a few months ago,
and from pictures other people took of here, it looked like her entire display
was 100% fanart. Does it just depend on the convention or what?

idk how to add images in this thing, but you can see a picture of her and her
display here. Since it was a comic con she had mostly comic book characters and
some anime.



12132826_1626437257615790_1723045563_n.jpg640x640 116 KB



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elixiadragmire
Dec '15


as far as I know, selling artwork that isn't your own IP is technically an
infringement of copyright law. It maybe your own artwork but its not your
intellectual property.

She could have an agreement to use their IP (aka a licence) meaning she's paid
upfront to use their IP or is paying royalties for the use of the IP. But in
general fanart gets sold at comic cons all over the place and thou its
'technically' illegal its still done. Its the community enjoying something as a
community. Perphaps most companies dont step in because a) its not causing a
massive dent in their global profit and too costly to pursue (even to pursue
Sakimichan) and b) provides free promotion of their products and builds the
fandom that will purchase from them in future.

2 Likes


Raven_C
Dec '15


Yeah, all fanart is technically illegal. Most big companies don't step in
because they consider it as "homages" (and promotion as is already mentioned),
but if they choose to come after you for selling copyrighted work, they have the
right to do so. But most of the time, they never do.

1 Like


SpavVy
Dec '15
2


Eh, I'm against selling fanart...I know some people are okay with it but
personally I'd be royally pissed off if someone had been making money off of my
intellectual property.

I know it's the community enjoying the work and so on... but she's literally
making a living off of this.
Most people don't seem to get caught but what if someone who was doing the same
thing as Sakimichan wanted to work for let's say Disney as an example, and
Disney looks up that artist and they find out this artist has been selling
Disney fan art under their noses?

4 Likes


YamamotoRyuunosuke
Dec '15


As an author and artist who gets little to no profit at all for my work, I would
be really, AND I MEAN REALLY, angry to see someone making money out my
characters or creations.

Now, even as illegal as it is, if I'm an artist who earns an stupidly huge
amount of money out of my own work. I wouldn't really mind a group of
enthusiastic fans making some cash from fanart (of course, there's a limit as
well).

What I really find outrageous is that I've seen licenced stores at comic cons
selling fanart without permission from the owner of the IP or the artist who did
the fanart. This artist might by any chance get sued for selling fanart when
he/she isn't even aware of it.

2 Replies
1 Like


heterodont
Dec '15


There are some conventions that do put in place either 50/50 rule (where half of
your stuff is original and the other half can be fandom related things and what
not - stuff of IPs that arent yours) or some that purely do strictly
original-only tables.

While it is illegal to sell fanart bc you're profiting off an IP that doesn't
belong to you, many companies don't bother to follow up with cease & desists
because it's not on a mass scale thus not impacting their profit badly. I don't
really think its because they find it as a 'homage' or free advertisement - imo
all they care about is money. They can afford to advertise if they want to be
advertised. The only big company that I'm aware of that 'hunts' down fanart is
Disney, apparently they sometimes have undercover scouts go into AA's and slap
out C&Ds to people selling disney merch - but then again that's just from what
I've heard through the grape vine.

2 Replies
2 Likes


Kaykeactual fraggle
Dec '15


From personal experience, I've sold fanart prints and stickers at cons (and some
online) and never run into an issue. I do know some people who got a cease and
desist notice from DC for selling a fanart book, but I think it was because it
was like an actual comic book using DC characters and not just a print. Even
then, they just got a phone call saying they couldn't sell it anymore or they'd
take legal action.

1 Like


Jewe11s
Dec '15


I personally think that a greater issue would be if Sakimichan was selling art
based on smaller fandoms. Webcomics, youtube stars and animators (etc) serve to
loose a lot more from people selling fan art of their work.

As we are on Tapastic, I think most of us here can agree that every dollar
counts for us smaller guys and if someone else is being attributed to something
we created and/or is gaining profit from our hard work... it can be devastating.
(As @YamamotoRyuunosuke mentioned.)

In general it's safer to avoid fan art...
But because people go with what they know and like, it's more profitable to be
risky.




KreativeConfusion
Dec '15


most big companies don't really care unless there's a large issue of profits
going on. even with the money she makes, it's nowhere near the amount the large
companies that own the characters she draws makes. so they most likely don't
care since it would be too costly to bother.

technically its illegal, but its one of those rules everyone knows exists but no
one really follows through with it.

1 Like


elixiadragmire
Dec '15
heterodont


DC, Marvel & Disney, don't care for the homage. But Rebecca Sugar and people of
similar ilk like it. You tend to notice that baby boomer creators do care
whereas gen x, y & z creators not so much.

1 Like


heterodont
Dec '15


DC, Marvel, & Disney are all huge corporations and not really a single person,
so I don't really think it's fitting to call them baby boomer creators as if
they're a singular being? I get what you mean though.

However, that's understandable! I forget about people such as Rebecca Sugar who
like seeing/don't mind fanart being sold! I'd bet that people like Stan Lee
aren't too bothered by people selling fanart, if we're talking about strictly
the creators here and not publishers.

1 Reply



shazzbaa
Dec '15


Here's most of the perspectives I've seen:

Some people work very hard to make sure all their fanart is technically legal
under fair use. I'm not very familiar with the relevant laws, but I had friends
who were -- they could tell you 'these prints count as parody, those prints
change enough of the outfit to count as x% of the original design being changed
and thus not being an infringement,' etc. etc.

Some people feel that selling fanart is okay because big companies can afford to
take the hit. Some people feel it's okay because they are not hurting individual
artists10. Some people don't care if it's illegal- you can get away with it, and
it's a lot harder to make money in Artist Alley if you don't.

It becomes more complicated, too, when you're dealing with anime and manga since
in Japan, there's more of an expected culture of fanart, so you run into a weird
thing where it's technically illegal in America, so the creators COULD crack
down and order you to stop, but the Japanese creators of those works would be
unlikely to see a problem with it.

Since it's not super risky, it's mostly an ethical decision. Personally, I
decided not to sell fanart, but I just think that whatever choice you make, it
should be a choice that you thought about, and if you decide to sell fanart, you
need to consider who it is you're impacting every time you make a piece of
fanart -- selling Undertale fanart hurts the creator a lot more than selling
Pokemon fanart.

(As an aside, since I was surprised to learn this: unique commissions of
copyrighted characters are actually fine! It's the legal equivalent of a band
covering a song at a concert)


heterodont:

> The only big company that I'm aware of that 'hunts' down fanart is Disney,
> apparently they sometimes have undercover scouts go into AA's and slap out
> C&Ds to people selling disney merch

I REEAAALLY dislike a lot of what Disney's done to copyright laws, but I'll
defend them on this -- my understanding is, they do this kind of thing because
if they don't defend their copyright, it can be contested legally, and Disney
would lose the ability to defend their copyright against the infringers they
actually care about stopping. So they have to be pretty heartless about it
because if they don't, they'll get taken advantage of.
It's really easy to say, as a smaller creator, "hey, I would be fine with
fanart!" but fanwork can open up a lot of legal loopholes, and more visible
creators and companies have to be careful about the precedents they set in order
to protect themselves. :/

1 Reply
3 Likes


elixiadragmire
Dec '15
1
heterodont


heterodont:

> DC, Marvel, & Disney are all huge corporations and not really a single person,
> so I don't really think it's fitting to call them baby boomer creators as if
> they're a singular being? I get what you mean though.

Yeah, I say baby boomers primarily because those running the show now and
calling the shots are boomers! Thou of course these companies are far old that
even.

The copyright world is a mess (primarily because of Disney, source below) wheres
is hard to understand it like we've discussed, some creator don't mind sold fan
art but most publishers dislike it! But with Gen Y & Z I have a little faith
things MIGHT get better.

youtube.com/watch?v=SiEXgpp37No
1 Like


AffectedMind
Dec '15


There's a ton of people selling fanarts and none really cares. It pisses me off
when someone is making a living out of fanarts like Sakimichan, that's why I
hate and love her. Her art is great, she's very talented and I adore her art,
but 50 000 dollars a month? I mean making profit of something that isn't yours
really bothers me... Once I saw a guy making living off of fanarts just because
the characters had huge boobs and butts... As an indy creator it's a bit
discouraging... Maybe because I think fanarts are easier way, tho I know they
require a lot of work to make too. And NSFW content that is more likely to
gather audience too... Argh! Dx

But to answer your question, I think you will be fine, there's so many people
selling fanarts during conventions. I think in most of this type of events there
isn't really much room for original art... I was on 3 cons so far and only once
saw a girl just sitting on her table, drawing and selling her original art.

4 Likes


Doubtcent
Dec '15


There is a fine line of ripping an IP off or making something under fair use. If
you take a page of something directly and claim it as yours, then it falls under
a lot of illegalities (for a lack of a better term). But, fair use is simple. If
it is your art, meaning you drew it yourself and you own the original copy, then
it is fine whatever you make, as long as you're not ripping someone off page for
page.
If you make fanart or fanfics with reliable characters that are already
established, it can be considered as parody, meaning you are basically
critiquing with your own style or with your own story.
The artist at the con isn't doing anything wrong because she made those pieces
herself or has permission to distribute art for the someone who owns those
pieces. If those weren't her's and she didn't have permission, then there would
be trouble.
Sadly, companies out there like to take down anything that can be put under fair
use just because they don't want their precious creation being looked at in a
bad light, or just so that they can hold the monopoly on their IPs. Which isn't
bad, but it puts their creations under a bad light anyways.
So if for some reason someone wants to make fan art or something based on my
creations, (say if I still do this for another ten years) then I'll permit it.
But if they directly take pages and say they own them, that is copyright
infringement... at least at the moment.
That law could still change and the private sector version of the copyright law
(that if you own the original IP then it is yours) could turn into a public one
where everything you make has to be copyrighted down to the letter.

2 Replies



elixiadragmire
Dec '15


vincentprendick:

> There is a fine line of ripping an IP off or making something under fair use.
> If you take a page of something directly and claim it as yours, then it falls
> under a lot of illegalities (for a lack of a better term). But, fair use is
> simple. If it is your art, meaning you drew it yourself and you own the
> original copy, then it is fine whatever you make, as long as you're not
> ripping someone off page for page.If you make fanart or fanfics with reliable
> characters that are already established, it can be considered as parody,
> meaning you are basically critiquing with your own style or with your own
> story.The artist at the con isn't doing anything wrong because she made those
> pieces herself or has permission to distribute art for the someone who owns
> those pieces. If those weren't her's and she didn't have permission, then
> there would be trouble.

thats mainly for non-profit use of another IP. As soon as you stick a price tag
on it, BOOM! Your infringing.

1 Reply
1 Like


shazzbaa
Dec '15
Doubtcent


vincentprendick:

> But, fair use is simple. If it is your art, meaning you drew it yourself and
> you own the original copy, then it is fine whatever you make, as long as
> you're not ripping someone off page for page.


elixiadragmire:

> thats mainly for non-profit use of another IP. As soon as you stick a price
> tag on it, BOOM! Your infringing.

The truth is in-between these two. "Fair Use4" is something that exists in the
US, but it's not that broad -- Fair Use and Parody cover specific uses of IP,
not any fan-created thing. If you're selling a cool picture of Pikachu you drew,
that is in no way commenting on or critiquing or spoofing the original
franchise, so it's not Fair Use, and it's an infringement. But if MAD Magazine
puts out an issue with Pikachu on the cover, they're probably using it to
comment on or poke fun at the Pokemon franchise, so they can claim parody, and
can legally sell that magazine.

5 Likes


somvi
Dec '15


shazzbaa:

> It becomes more complicated, too, when you're dealing with anime and manga
> since in Japan, there's more of an expected culture of fanart

This was true up until recent years... Japanese conventions were normally packed
with artists selling fan based comics (Doujinshi) but there's been some changes
to the copyright law in Japan which makes it even more restrictive. I remember
reading that in some cases, a Japanese fan artist can be sued by a parent
company without them having to check with the original creator. This kind of
resembles what Disney does to protect their interests in the US, even against a
daycare14. No chill.

So in 2015, we're seeing these ugly US copyright laws heading overseas1. I'm no
lawyer but this could potentially mean a shit storm for fan artists copping
manga characters at conventions. Looking at it objectively, it's all about money
in the end as nobody would give a shit if these things were selling for pennies
at some flea market.

One day we'll figure out a way to copyright the blank space on a page so it's
gonna be pretty awesome seeing nothing but bootlegs like Nicki Maus and Bragon
Doll T. I don't know about you guys but every time Disney buys another company
(RIP LucasFilm, Marvel) I feel a little uncomfortable.




fighterxaos
Dec '15
YamamotoRyuunosuke


I'm with you. I'm basically not mad if people make money off my IP but I'd be
mad if they made more money than me off it. XD

Those stores sound real shady to me, that sounds real messed up.




Raven_C
Dec '15
1
YamamotoRyuunosuke


YamamotoRyuunosuke:

> Now, even as illegal as it is, if I'm an artist who earns an stupidly huge
> amount of money out of my own work. I wouldn't really mind a group of
> enthusiastic fans making some cash from fanart (of course, there's a limit as
> well).

Yeah I get you and agree. And um...as someone who has made money of off fanart
(of a big video game franchise) and as someone who enjoys and has bought fanart,
it doesn't really bother me when ppl sell stuff like prints, stickers, zines,
etc of a certain piece of work AS LONG as it doesn't really affect the creators
themselves (i.e. big companies). Now if it's an indie creator (Toby Fox of
Undertale, for example) that's when it really affects them and I completely
respect their wishes to not have people sell fanart of their work because, you
know, I'm an indie creator myself.









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