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.

Want to Republish this Article? Request Free Permission Here. It's Free.


  1. 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. Excellent post! In the Stephen Colbert fandom, fan art is actively encouraged, and fan created content is actually promoted on the official 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. 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. 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.

    • 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. 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. 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.

  11. 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.

    • 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”.

      • 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.

    • FrankieAddiego says:
      January 20, 2012 at 12:45 pm

      I personally feel that fan art inherently makes a “comment” which is that you’re a fan of so-and-so…

      Unfortuneatly that is not the legal requirement for commentary or critique because the Comment is about YOU and not the thing itself.

  12. 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.

    • So, MLP and trademarked terms are why I found this article, so I appreciate your comment.

      Hasbro currently has a live trademark application out for the term “cutie mark” – their 3rd attempt in almost 30 years. The first was cancelled, and the 2nd abandoned, both at the point the current one is sitting at in the process.

      So, if someone was a gigantic fan of the show, and wanted to name their blog a title that included the term in a way that indicates they’re a fan (rather than attempting sound affiliated, for instance, or claim the term for another use), and the blog is an active business in the sense that the author is paid to write posts about products and services, but the main purpose of the blog is a personal family lifestyle story – and MLP only figures into the content in general terms anyone’s allowed to write about (like, “Hey, got my kid a Twighlight Sparkle plushy for her birthday #woot” or “here are my unsponsored thoughts on why MLP is an awesome resource for teaching kids positive character traits”), AND they do NOT sell anything containing their logo which contains the term in question —- are they in danger?? Or are they just a really nerdy superfan for whom “cutie mark” means something personal?

  13. 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.

  14. 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.

  15. 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

  16. 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?

  17. 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 for more details.

  18. 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?

  19. I read a lot of interesting content here. Probably you spend a lot of time writing,
    i know how to save you a lot of time, there is an online tool that creates readable, google
    friendly posts in minutes, just type in google – laranitas free content source

  20. The functions that you can see in this copy basically do not do anything.
    Not to mention that laptops with com port have powerful processors and
    they prdovide pretty much everything a desktop computer
    caan offer. Graphic designers can have Photoshop setup a certain way to optimize their use of
    the software.

  21. I was wondering what your take on the following would be; At anime expo in los angeles every year around the first weekend in july, there is a massive amount of people who set up shop in the “artists alley” and sell their fan art basically. At least, I don’t see how it could be called anything else. The use of characters, phrases, and images is amazing and very interesting, but I would think it would be close to impossible to sell them and for the convention to allow so much of it. Would you mind explaining?

      • A creator doesn’t even have to attend to blacklist their stuff from the artist alley all they have to do is send their request to the heads of the convention.

        It’s in their right to do so

    • In general, even when a creator objects to for-profit fan products in general, they will turn a blind eye to in-person sales, including selling to large numbers of people at conventions. Open an online store for your stuff, on the other hand, and they’ll come down on you like a ton of bricks.

    • It can depend on how adamant the creator is, I’ve been to a few conventions and have read their sites and some things they will not even allow to be sold due to copyright infringement. Most times at the creator’s will.

  22. I need help.

    My friend and I have been working on a small business where we produce and sell fan creations and I want to find a way to do this legally how can I? I would like to ensure you that we have sold nothing and made nothing yet but we would really like to make things relating to fandoms and sell them at conventions. I see many people doing it and I am wondering how I can. Once again I want to do this legally.

  23. Does material uploaded to sites such as have any sort of copyright? Like if someone was to take the story from a fanfiction and eliminate the elements of the original movie/book/tv show, do you as the fanfiction’s author have any legal recourse or entitlement to “your parts” of the story?

  24. Does a “cookbook” based on what characters would eat, fall under the heading of fanfiction? In this case, all recipes would be original, but character names and descriptions would be referenced.

  25. I’ve seen one author who takes donations through a pledge I believe it was called in which he or she offers a printed and signed copy of their fanfic work is that illegal or no?

    • The fact that it’s a fanfiction makes it illegal to begin with, the addition of profits gained from it or by donation just increases the odds of legal action being taken against this author. If they get caught their wallet is going to hurt because copyright infringement can cost a person thousands, it’s a serious offense.

  26. I write AU works for (currently) the Hobbit, Sherlock (BBC), and Black Butler fandoms. The AUs are generally very detailed and very different from the originals. I draw fan art for my fanfiction and sometimes post them as chapters in my works and I’m about to start a Tumblr feed for my AO3 account, in which many of the works will be posted. I discovered that sometimes the fanart of other artists are lifted and then sold by those who took them as original works.
    How do I prevent this from happening to me? Can I copyright my works?

    • I think the point of the article has basically said that any fan creations from original works are technically illegal this includes using characters from original works. You can’t copyright something that’s already copyrighted. About the only thing you can do to protect yourself is create your own work using your own original characters that have their own look and personalities.

      Fan artist and Fanfiction authors bottom line are breaking the law. The creator could probably go after someone for stealing a fanart with their characters but they could also go after you too if they wanted. I don’t think you can technically do anything to protect yourself other then what I previously mentioned.

      Copyrighting something that is the embodiment copyright infringement doesn’t make a whole lot of sense considering creators are simply tolerating it because it’s in their better interest to (it possibly drives up their sales).

  27. The reality is, unless you’re a photographer, or someone that works in media (and even then), the average Joe doesn’t know anything about copyright, and basically do things based on personal opinion/reason without investigating. Copyright can get so damn complicated, it’s insane. I manage two blogs; and I find myself taking longer and longer to post something, because I am constantly thinking of copyrights when I use someone else image for criticism. While I respect copyright and try to be responsible; copyright has became such an issue, that it makes bloggers hesitate to write anything or use any photos in fear of getting in trouble. I really think that more copyright holders should understand that the Internet has changed the way images are used, particularly when it comes to fan art. On the other hand, copyright infringement is like drugs; you can try to prevent it, but and the same time, you’re never going to stop it. Some people just don’t care, and others do.

  28. Speaking as an aspiring artist/illustrator, I’d much rather put the time, energy, and creativity into creating original characters & artwork rather than reinterpreting something which belongs to a large, faceless corporation. I enjoy a lot of the characters from Marvel, DC, and other publishers and will purchase trade paperbacks, animated movies, and even action figures of them. However, that’s as far as it goes. I’ve done some “four-color” illustrations of various Marvel and DC characters and I discovered that my dissatisfaction grew with each. The experience reinforced how much I missed creating my own characters and how much greater the sense of disconnect was between myself and someone else’s intellectual properties. I’d decided early on that I’m not going to post them because I don’t want to be haunted by the possibility of a “cease and desist” letter or infringement lawsuit. Besides, I want to be able to do with my own creations as I see fit, including selling prints of my own artwork.

    Personally, fan artists and authors should spend more time creating their own characters, worlds, and stories instead of shortchanging themselves in glorifying someone else’s intellectual properties. If you have the skills, use them to separate yourself from the pack.

  29. ya know of some creators allow fan art and fan fic and such then it it shold only be an infringement if the creators choose it to be. it’d be alot easier to understand

  30. Jonathan Bailey – “The answer is simple.” Um, no, no it’s not. And acting like your moral standpoint is he only “real” one is incredibly arrogant.
    Different countries and communities often have different stances on this and yes that includes profiting off of fanart, and there ca be a thriving market for fanartists (and IS) in many cases.
    The MLP community would be one recent example. But you only need to go to DeviantArt to see amateur artists sell their work and yes, that often includes fanart for various shows.
    The “moral higher ground” isn’t self-evident at all either as artists also put their skill and time, and unique talents and spin into their work, making it at least in part only their own. If fans have a want for such works, copyright holder are often wise to allow it as long as they do not have a directly competing product (and often even when they do, as long as the fanartist isn’t overly viible; see custom made toys for example, which cost a lot but aren’t likely to compete with mass produced official toys).

    “Make your own brand” is about the most ignorant thing one can say and shows that one has not thought about or experienced the matter of fanart very much.