Is it Legal to Create Fan Art?
Quick answer: While it is generally illegal to sell fan art, it may be OK to publish your fan art as long as you don’t make money from it.
Fan art, fan fiction, or any other creative work inspired by popular culture is a complex and controversial issue. Here are the basics of fan art law. This page is part of our Guide to Laws about Creative, Artistic, and Business Work and Content.
What is considered fan art?
“Fan art,” “fan fiction,” or “pop culture art” generally refers to creative work (drawings, paintings, movies, books, merchandise, etc) which is based on or uses characters from someone else’s work. Some examples include drawing a character or scene from the latest Star Wars movie, writing your own Harry Potter book, or printing a Black Panther character on a t shirt.
This includes directly copying and/or reproducing a preexisting work, or even making your own “version” of it.
Is fan art legal?
Most fan art work is probably not legally permitted, and most likely infringes on someone’s copyright. That said, much of the legality of fans’ work is up to the person or company who owns the original work (such as Disney). Some companies and individuals are more open to fan art in certain forms, while others are very strictly against it.
If the owner does not consent to a particular use of a work, fan art may be considered infringement of either the copyright and/or trademark of the original work that the art is based on. On the other hand, it may not be infringement if it is considered a “fair use” of the work.
What is considered fair use? The main issue is about profits (isn’t it always). If you are making money from fan art, whether you are selling it or otherwise benefiting financially, this is generally illegal. That said, even if you are making a profit, you may be able to get away with it if your work is considered a parody of the original work.
Even if you are not making money, if the fan art interferes with the ability of whoever owns that work (copyright owner) to make money off the work, this is also a problem. So, if your work can be seen as a substitute for the original work, such that your work makes it less likely that people will pay for the original work, this could also be infringement.
What about all those people making and selling fan art? How is that allowed?
There is a LOT of infringing going on out there with fan art, and the infringers may or may not know it. At some point the original copyright owner may send a cease and desist letter, or demand payment. Other copyright owners simply don’t bother with this, especially for fan art that generates little or no sales.
What if I create a completely new work inspired by another work?
If you create a work merely “inspired” by another work, or because you are a fan of a work, without directly referencing it, this is in a different legal category. Let’s say you love Star Wars, and you create a comic which is about people on different planets fighting against each other. You don’t use ‘Star Wars’ in the name, you don’t use any Star Wars character or planet names, and you don’t use a lightsaber. Legally speaking, this is very different from the fan art described above, and is probably NOT considered to be infringing on the other work.
On the other hand, if you were to simply put your own spin on a work, like drawing wacky versions of BB-8 or R2D2, this could be considered infringement.
Clearly there is a gray area between directly copying or taking from a preexisting work, and using the work as inspiration. The more closely your work resembles or references the other work, the more likely it is infringing on the original work.
Bottom line: creating fan art can be a risky proposition, especially if you are trying to make money on it.
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