Fan art is considered a derivative work of art produced by a third party from an inspiration from original copyrighted material. It protects the creator’s works from being used without expressed written permission. In doing so they preserve the idea and uphold the integrity that the creator wants to save.
In regards to fan art, the law is clear: an individual cannot sell fan art of copyrighted material if they do not have written permission from the copyright holder. In addition, it does bar any entity from using the original character or item’s image or likeness without the same permissions. However, there are many instances where people are not prosecuted for creating or publishing their fan art.
What is Fair Use and How Does It Affect Copyrighted Material?
So how are artists able to produce their fan art legally? Fair Use is similar to the first Amendment in the United States Constitution, but applies to copyrighted work. An individual is allowed to create fan art and is protected by Fair Use if certain terms apply. For example, by using a copyrighted material in a televised or distributed discussion, Fair Use would be applicable here. By providing and using the particular piece of material in their own format, it is protected by Fair Use because it is considered a commentary on the original piece. Fair Use will protect secondary artists and their work if it is used as a commentary piece or parody. A simple example for a parody would be where an individual takes a song and uses the tune however changes the words to create a form of satire against the original piece.
Copyright holders may still try to legally send a cease-and-desist letter, however their case may be difficult to prove as Fair Use provides protections if the fan material follows under certain guidelines.
Some tips to Avoid a Copyright Infringement:
- Know the policy. Most creators of popularly known and mimicked work have made statements regarding their ideas and feelings on the issue. If you submit your work to a board or community, know what their rules and guidelines are.
- Make it your work. Clearly show and publicize the fact that the fan art is indeed fan art, and make it in your personal style. If the art is too close the creator’s, it could create a legal dilemma. If there are any inquiries into possible infringement, the more questionably related the fan art is to the original work itself will most likely be the deciding factor in whether it would be considered an illegal infringement or not.
- Do not sell your work as a commercial product. In attempting to do so, you may be liable for infringing on a trademark or copyright and have risk having legal action taken against you.
- Respect the copyright holders. If the creator or an individual speaking on their behalf makes a request regarding your work, it would be wise to consider their case and comply if it is deemed reasonable.
Should there be any question on whether a personal work of fan art could cause any legal actions, or for more clarification, seek out a qualified intellectual property lawyer for any assistance or advice you may need.