The Messy World of Fan Art and Copyright

Very few copyright issues are as divisive or as headache-inducing as fan creations. Whether it is fan fiction for a popular fantasy series or fan art of a popular movie, these creations almost instantly walk into a copyright mess that can be enough to make even the boldest attorney cringe.

Yet, fan fiction and fan art both remain wildly popular and widely tolerated on the Web. There are large communities dedicated to, such as Harry Potter fan fiction, even after Rowling successfully sues another fan creation in court.

So, while an entire blog could be dedicated to the top of fan creations in copyright, we’re going to take a brief look at the issue and try to understand where we sit on the issue today.

What the Law Says

According to copyright law, copyright holders have the sole right to distribute derivative works based on an original creation. This includes sequels and any other work that includes copyrightable elements from the original creation.

As was confirmed in the recent “Catcher in the Rye” case, characters can be granted copyright protection as can many other non-expression elements of the original work. This is furthered that most fan creations are built upon plot elements and other copyrightable parts of the original material.

That being said, fair use may protect some fan creations from being an infringement, but that is handled on a case-by-case basis, looking at the facts of the actual work. However, most fan creations, by their very nature, don’t parody or criticize the source material, which would provide a great deal of protection, nor are they highly transformative, meaning that they are less likely to win in the even that such a suit takes place.

It is also worth noting that fan fiction and fan art can be a trademark violation as well, especially if it uses names and titles in a way that causes confusion as to whether they are official. Trademark disputes over fan creations are rare, but still possible.

Yet, despite a relatively strong legal position, lawsuits over fan fiction and fan art are extremely rare. This is especially odd considering that many of the rightsholders who are the most common target of fan creations are also among those most aggressive at stopping other infringement of their work.

So why has fan art thrived? The reason is actually fairly simple.

Speaking the Unspoken Rule

From a copyright holder viewpoint, fan fiction and art is usually not very harmful. Fans create works that are openly recognized to be non-canon to the story and are not replacements for the original.

In fact, some feel these fan communities actually serve a valuable service to copyright holders by providing a thriving site for fans to visit, keeping them entertained and engage between official releases. In short, since fan creations don’t take away sales of the original work, they are often seen as free promotion and a way to grow the brand without cost or effort.

The bigger issue, however, is the cost of going to war with fans. Being litigious with creators of fan art can be very costly, not just in terms of court costs, but in terms of backlash. No creator wants to sue their fans, especially when the fans aren’t earning revenue, and as such most creators will tolerate fan fiction and art under most circumstances.

Some even go as far as to create fan site kits, for the purpose of aiding the creation of fan Web sites. This includes Blizzard with World of Warcraft.

Fan fiction and fan art communities, in turn, usually have a set of rules that they follow to preserve their symbiotic relationship.

First, they agree to not profit from or sell copies of their creations. Though some of the communities run ads to cover hosting costs, most do not turn any profit and the individual authors never sell their works. Second, they always proclaim that their work is unofficial and has no connection with the creators. Finally, they respond to requests from the copyright holder to remove content and work with the creator as needed.

In short, the community works to ensure they don’t hurt the original creator’s ability to profit from the work and the creator tolerates what is technically a copyright infringement in many cases. Everyone seems to be happy though, on rare occasions, the system can break down.

Problems with the System

Though any unspoken and unsigned agreement can break down for a number of reasons, on matters of fan creations, there are typically two causes.

  1. Aggressive Creators: Some creators, such as Anne Rice, have been very aggressive about shutting down fan fiction sites.
  2. Fan Art/Fiction Creators Who Cross Lines: Also, some fan creators, either misunderstanding copyright law or feeling they have been given permission, cross the lines and either try to sell copies of the works they create or otherwise commercially exploit them. Some also try to claim the fan works to be original works, often by merely changing names around.

These are the cases that result in conflict between authors and fan fiction/art communities. The Harry Potter Lexicon case is an excellent example of a fan crossing one of the lines as the Lexicon had been a free site for many years, well-tolerated by Rowling, and it was only when a book was to be made for sale that the issue became a legal one.

Granted, not every fan artist who sells copies of works is pursued, Magic the Gathering, for example, seems to have many artists that sell fan art of the cards but Wizards of the Coast, the makers of the game, don’t seem to actively be pursuing (at least not that I’ve heard).

Still, that is the most common tipping point between when a fan creation goes from being a “tolerated infringement” to a legal matter.

That being said though, every creator has right to make the choice for themselves where they want the line drawn and to enforce that line as they see fit, an important thing to remember when dealing with fan fiction and fan art.

Staying Safe

If you’re interested in creating fan fiction or fan art, here are a few quick things I would say to do to make sure you don’t find yourself in a copyright or trademark conflict.

  1. Check the Rules: Look for the rules of whatever you’re a fan of. Fan art and fan fiction communities often have guidelines and some authors have made public statements on the issue. Do some research before creating and uploading.
  2. Make it Clearly Unofficial: Have clear statements on your site that your site and your work is not an official site and is just a fan creation. Though it may not help with an actual trademark or copyright dispute, it shows good faith and encourages rightsholders to work with you.
  3. Be Non-Commercial: This is an element of the unspoken rule, but try to be completely non-commercial with your works, no selling copies, no sponsorships, no advertisements.
  4. Be Careful with Domains: Be mindful that your domain can become a trademark issue if it leads others to think that you might be an official site. Make it clear with your domain that it is a fan creation.
  5. Comply with Requests: If the creator or an agent on their behalf makes a request of you, obey it. If it’s a polite request, complying helps avoid a less-than-polite request later and builds a good rapport. If it is a more stern one, it is even more important to comply.

By no means do these steps prevent fan fiction and fan art from being a technical infringement, but they may help your use of the content be considered a tolerated and even respected use of the source material.

Bottom Line

The key point to remember is this: Fan fiction and fan art are, usually, an infringement of the right of the copyright holder to prepare and license derivative works based on the original. This is almost without exception.

However, many copyright holders, for good reasons, tolerate fan art and even encourage it, but this should not be taken as carte blanche to do what you want with the source material. There are many lines that a fan artist can cross and wind up in legal trouble.

Your best bet is to study the rules for your community and obey them closely. If you do that, you should be fine but always remember that your creations only exist through the good graces of the copyright holder and they can change their mind at any point.

If you’re not comfortable with that, then you’re better off creating your own, wholly original work. Not only do you not have the threat of being shut down hanging over you, but you also have the right to exploit the works however you see fit.

32 Responses to The Messy World of Fan Art and Copyright

  1. faerywitch says:

    Thank you very much, Jon! I will use this article to link to when people talk about fan art. A lot of fan art artists (illustrators) do charge for their work because "They did put the craftmanship so they should be paid" and many times they argue that "They did put creativity into the work, so it is not illegal". What do you think about it?

  2. The answer is simple. While they did do a lot of hard work to make the fan art or fan fic, the original author did a great deal too with the original work its based off of. Without the original work, most fan creations wouldn't be nearly as valuable so they are building much of the value off of the work of others and that is never right.If you want to earn revenue from your hard creative work, build upon your own imagination and your own world. If you want to do fan art for fun, be my guest so long as its allowed by the creator.

  3. DB Ferguson says:

    Excellent post! In the Stephen Colbert fandom, fan art is actively encouraged, and fan created content is actually promoted on the official ColbertNation.com web site. While I've never talked to Viacom lawyers about my website and the fan content that we share, we have been told by numerous people that the network (not just the show) appreciates the effort of Colbert fans.

  4. This, to me, is a good example of fan art being done right. They probably don't have an official policy per se, but the presence of fan art on their core site is a strong tip of the hat (not a wag of the finger) to the fan creations and gives very strong approval. Compare this to makers of Archie Comics or Anne Rice, who have gone litigious on fan creations and you see the difference quickly.I may not agree with every move Viacom has made on the copyright front, but this one I approve of.

  5. Justinfh says:

    Great article. While we do need copyright laws, to me, this article is evidence that current copyright laws are too strict and they're about to get worse with the Anti-Counterfeiting Trade Agreement.

  6. Clay Butler says:

    I think these creators who shut down fan sites and derivative works are really short sighted. Fan art reinforces the original creative work. Would any fan buy a fan novel or fan painting of Harry Potter without first buying every piece of official merchandise available? Probably not.In fact you need to be a big fan of the original to enjoy the derivative work. Every piece of fan art extends the original's market reach and cultural durability. Fan art actually fuels sales and interest of the original authorized work. Rowling would actually make more money in the long run and ensure her creation's legacy by allowing fans to share and create derivative works. After our death our work and our legacy only lives on in the hearts and minds of others. Those that have the largest cultural reach can theoretically live forever. Creative works, and even individuals, who fail to to win the hearts and minds of other disappear from history.If these protective artists were smart, they would instead set up a licensing fee for derivative works by fans. Make a cut on every sale. Shutting down the source or punishing people who love you is idiotic.

    • Cory Murphy says:

      I completely agree with you. Except for the J.K. Rowling bit (I read the Lexicon article. I see why she sued.). I do not think tons of people here will have heard of it, but I am a huge fan of an animated TV show called ‘Bleach’ (not just a big fan. Absolutely obsessed). The only reason I even heard of it was because I looked at a lot of fanart, and noticed recurring characters. They looked cool, so I figured out where they were from, and watched the TV show on the internet. I bought a bunch of official merchandise, all of the published manga volumes, and all of the TV show I could find (about $150. Possibly more. A lot them were gifts). I honestly think of fanart as free advertising. So, GO ALL COPYRIGHT HOLDERS THAT ALLOW FANART! FANS LIKE YOU MORE, AND YOU GET FREE ADVERTSING! Non-aggressive copyright-holders are the smart copyright-holders.

  7. To be clear, Rowling DOES allow non-commercial fan creations without any incident, it is only commercial use she takes issue with and that is a fairly standard approach. Anne Rice, I think, would be a better example of your point, one I agree with definitely.

  8. Clay Butler says:

    Correct. I realized after the fact that I used the wrong example, though I still think she should license the commercial work (at least the good stuff). She could have an official fan merchandise program. Maybe it would be too hard to administer but I think it makes sense philosophically. Also fan work can be an improvement on the original, which often is not that original anyway. Did Anne Rice invent the concept of Vampires? Did Rowling invent the concepts of familiars, spells, sorcery, cloak of invisibility and flying brooms? There's nothing in Harry Potter that I didn't include in my worlds as a Dungeon Master when I was in high school (early 80's). All the major concept in her books are intimately familiar to anyone who was really into D&D. Maybe Gary Gygax should sue her ;)For me, Harry Potter itself is a derivative work of fan fiction. About the only thing Harry Potter is missing is a character sheet with some hit points and a twenty sided die.

  9. More enlightened publishers see fan fiction for what it is – the best possible form of marketing! It’s free, and it’s effectively an unsolicited referral. The highest form of referral in fact, after all, you don’t go to the effort of creating something based on an original work if you don’t love the original work. I’m just surprised more publishers don’t see it like this. It’s a huge win for all concerned.

  10. [...] Here’s an overview of fan art with some advice to help keep from getting bitten by a rabid author. [...]

  11. Nightsky711 says:

    Fan art is one of the things that keeps the original alive.

  12. silalilte says:

    Great advice indeed, thank you!

    But then what is a difference between fan art and illustration based on literature?

    Does it mean that only illustrations commissioned by copyright holders are illustrations itself while any other work, no matter how original becomes fan art? What about a sculpture, a poem, a song inspired by literature? I always thought fan art is artwork derivative from a visual form, visual media, while visual work inspired by a book, a poem, a song – non visual form – is something different, becomes illustration, original creation (no matter if done by a fan or not). As long as it is original, not referenced from official illustrations.

    I really like the idea of copyright holders licensing commercial fan works, some fan creations are really worth it. Especially when as others noticed many of these copyrighted works are derivative to other past works. In truth all of them are, only most of the sources are heritage of all humanity, so cannot be copyrighted.

  13. [...] it’s up in the air but in general corporations don’t tend to take on fan art.  so i’ve basically decided that i’m [...]

  14. [...] Amano Yoshitaka Q Image Ultimate from DDI Software OpenCart –Open Source Shopping Cart System Plagiarism Today article about Fan Art Richard Prince NY Times Article Richard Prince copyright suit Tekzilla Patrick’s Online [...]

  15. FrankieAddiego says:

    I personally feel that fan art inherently makes a “comment” which is that you’re a fan of so-and-so. If I draw a picture of Superman and post it on Deviant Art under the category of Fan Art, I feel I’m commenting on the character at-least as far as to say, “I am a fan.” That’s just my opinion. I do feel that artwork that denotes an anniversary for a character then it’s commenting on their longevity or influence.

    This year, San Diego Comic-Con will have artwork from both amateurs and professionals celebrating–among other things–the 100th anniversary of Tarzan & John Carter and the 50th anniversary of Spider-Man, the Incredible Hulk and others. I think it should be considered fair use if–whether an artist’s submission is used or not–they could put it on their DeviantArt page or website.

    Just my opinion.

    • JenLynn says:

      DeviantArt now bans people for creating “fan art” and even posting works of themselves so don’t use them for your example since they are now in on the “creative use doesn’t matter”.

      • Timothy says:

        Since when?? Half the pictures on the main page are fan art and even some of the moderator selected daily deviations are fan art. I’ve never seen or heard of DA banning or removing anyone over fan art. It’s only when you post other people’s work as your own do they get pissed and throw you out.

  16. Kit Lloyd says:

    Hasbro has got it right with My Little Pony: Friendship is Magic, a show which it never imagined would gain such a huge adult following. It has taken action in a few cases, such as one site that was offering free downloads of full episodes simultaneously being sold via iTunes – but it hasn’t touched non-commercial fan works.

    In fact, Hasbro has done something even more unusual – adopted a few fan creations, primarily names for characters who did not already have official names, into the show itself. The result has been strong support for Hasbro – even the removal of the download site mentioned above was greeted with overwhelming support from fans.

  17. Aaron Wood says:

    Recently, my company attempted to obtain a licence from Studio Gainax to publish an anthology of fanfiction based on their property, “Neon Genesis Evangelion”. We were shot down without any explanantion, though we offered than 50%royalties, projected to be worth upwards of $2 million dollars, which they would not have had to lift a finger to get.

    To me this just shows how hidebound and backwards most corporations really are. We would have given them final approval of all content, the best possible form of free advertising, and quite a bit of money as well. It just doesn’t make any sense to me.

    • Without knowing the full proposal you pitched, I have to say what you are sharing here does not make sense to me.

      1. If $2 Million is 50% royalties than you are claiming that your book would earn as much as 20% of the entire Evangelion franchise and sell (depending in price) over 400,000 copies. Unless you pitched a really impressive marketing plan no sensible corporation would touch this because these kinds of claims look highly unrealistic which nakes a bad impression.

      2. You say they wouldn’t have to lift a finger but that they would have final approval for all content. That is a contradiction which I don’t understand and leads to

      3. They are currently in the middle of a new movie series release (last movie scheduled to come out in 2013). No corporation is going to want to give permission for release of fan content which they have approved which will contradict their as yet unpublished story. Half the reason Lucas never made a third Stars Wars trilogy is that the authorized expanded universe was so pervasive that he could no longer tell his own story in his own universe. Someone else had already told a different one. If your book would be as successful as you say, Studio Gainax would be in the position of contradicting of needing to fight an established story (yours) to get acceptance of the canon story (theirs). They aren’t that stupid.

  18. [...] art isn’t your typical act of copyright infringement on the internet. I’d like to see it move from tolerated to more widely appreciated, especially [...]

  19. Ty says:

    At least half of the fandoms I’m involved in and attached to (And have also bought merchandise from) where introduced to me through fan works, be it art, fiction or plain word of mouth, I would never have found these stories (and given the creators a buck or two) if it hadn’t been for the fandom and so called ‘illegal activity’
    I can see certain cases calling for legal action but for the most part, fan artists, even the ones selling commercially, aren’t making a hell of a lot to merit intervention and in the process they’re distributing that fandom further, possibly introducing it to new fans.

  20. [...] Jonathan Bailey’s article, “The Messy World of Fan Art and Copyright,” which appears on PlagarismToday.com, he [...]

  21. [...] Jonathan Bailey’s article, “The Messy World of Fan Art and Copyright,” which appears on PlagarismToday.com, he [...]

  22. random says:

    there is this guy called orica maker on youtube selling merchandise with fanart picture, is that considered illegal , not to accuse him or anything but i am curious and just asking

  23. [...] fan fiction is better than the royalty most fan fiction authors normally earn, which is nothing. This is because of the bizarre copyright status of fan fiction, which is a technical infringement that’s widely tolerated by rightsholders when done [...]

  24. Lady D says:

    What about stoeln fanart cases? (let’s say it’s not illustration, but a photomanipulation)

    When a fanartist make something, this work gets stolen and posted somewhere else (facebook for example) without their knowledge/oermission or giving credit to the artist?

    Is there any way they can defend themselves from the “thief” since the “thief” claims it’s fanart and therefore the copyrights belong to the original creator (in this case creators or a tv show who actually encourages fafics and fanart in fandom, even play off of it in the show) and the fanartist has no say since they posted the work online (meaning it’s “free game” now)?

    Is there anything law-wise backing them up when demanding their fanart to be taken down?

  25. Citing the Harry Potter Lexicon case as an example of the problems of fanfic really isn’t right. The Harry Potter Lexicon was a nonfiction work, and those are generally considered all right. (How many “The Unofficial Guide” books to various popular pop cultural works have you seen at bookstores? Same thing.)

    The specific problem with the Lexicon was NOT that it was derivative in a fanfic sense, but that it copied-and-pasted far too much of the original Harry Potter content into itself—particularly the two Harry Potter Schoolbooks, from which it apparently incorporated a majority of the content. That’s not something that most fanfics do.

    See http://www.teleread.com/copy-right/harry-potter-lexicon/ for more details.

  26. Tronyc says:

    Anyone have any insight on Marvel’s standpoint on fan-made derivative works?
    I have some ideas for a series of character “mash-ups” I would like to illustrate and possibly even write either a fanfic for or, if I have the time, a couple short comics based on those characters (in the style of their What If? books). I do not plan to sell any of these works.
    While I’m at it I might as well ask about Nickelodeon’s standpoint as well. I read elsewhere on the internet that the creators of Avatar: The Last Airbender were supportive of fanfiction and fan art. I had a cool idea for a fanfic based on their setting. This would also not be for any sort of profit.
    Are there any cases of the respective copyright holders coming after derivative works of similar nature to what I describe?

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