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Artwork by Tanner Garlick
Today we tackle the subject of fan art. We discuss what it is, what it isn't, whether or not you should do it, and the legality of it.
We definitely are of three minds on this one so get ready for some arguing!
Legal statement:
Will, Jake, and Lee are not lawyers and this is not legal advice. However, they have experience, thoughts and options on the topic of fan art.
If you are looking for real legal counsel, speak to a lawyer that specializes with Intellectual Property (IP).
What is fan art? [3:00]
Jake’s definition: Any drawing or illustration by a fan of a character or IP that is owned by another company or person.
What if someone did fan art and it become successful and gets traction on a social media platform i.e. Reddit?
Give credit where credit towards that artist or to whoever owns the IP.
In reality the fan art topic is more directed towards taking IPs that have great popularity already.
There are these massive IPs like Marvel, DC Comics, Doctor Who, Harry Potter, Lord of the Rings, etc. There are lots of people at conventions and online who are selling prints and merchandise using these IPs. So the question is, “should you do fan art of these IPs?” and “should you sell it?”
Fan art comes in 4 Categories: [10:50]
Derivative Work: something that you draw which is pretty much based on the character, your version of the character. The character in your style.
Parody: focused on the humor aspect, doing something funny with the character, needs
Plagiarism: creating a copy, or using actual artwork and reprinting it (reprint on paper or a t-shirt)
Transformative Work: take something that was created and transforming it into something new. i.e. A book review, a drawing of something that hasn't been visualized
What is the actual legality of it? Where is the line? [13:28]
Hard Line: if you don’t own the character, you need to be careful with the IP. It is illegal.
Grey Line: If the company or person who owns the character will care, prosecute, or send a cease and desist.
Jake’s thoughts [14:00]
If you have a piece of original art, that you created, on a physical piece of paper, you can sell it. That piece is a one-off the original.
However, prints and t-shirts become more grey area. You have created a derivative that the company hasn’t created. Ultimately, using another IP but if it became a parody in some way than it is in a “safer” zone i.e. SNL, parody, t-shirt or print.
If it has a strong point of view or a strong stylistic design, that couldn’t be mistaken for a licensed work then it’s a better situation to be in BUT best practice is to contact the copyright owner and ask for permission or to buy a license for the IP you want to use.
Sometimes larger companies are hard to get ahold of and request legal use of the IP. It is not in the companies economic interest to pursue legal action such as Jake Parker’s Iron Giant prints.
Jake Parker Iron Giant Print
It is hard to say what is going to happen if you do fan art. There are instances that artist received cease and desist and there are also instances where the owner of the IP likes the fan art and wants to purchase the IP for it.
Lee’s thoughts: [18:03]
It is very clear who owns the IP of certain art.
The grey line starts to work against you once dollars start to get involved- if you start to actually make money off of the art that could go against you. If you just gave away your art it wouldn't be an issue.
Lee clarifies Transformative art- There was a case where a photograph was used to created a sculpture (that was very close) and this case was not deemed illegal for the photography.
Fan art opens up problems and developing the mindset “I can grab what I want to”. Limits the artist and builds false notoriety and is illegal. The question is whether you will be prosecuted or not. And ultimately, if it’s not a parody it is illegal.
Another point to look at is: how much of the project or work is under a copyright? If you take out the copyright work, how much of your project is left over? Does the art still stand if the copied images are taken out.
Example: Jake's sketchbooks.
WIll’s thoughts: [22:58]
There are forms of fan art that art legal and it depends on the degree in which you recreate the IP. Some fan art is definitely not original and pure plagiarism but there are IPs that have been exaggerated and are protected under law.
Dominic Glover (started illegitimate and became legitimate)
Campbell v. Acuff-Rose Music, Inc.- Parody in a court of law recreating “Pretty woman walking down the street”. Campbell won because they were appealing to different audiences.
Wills 5 degrees of fanart [32:00] (From bad to good)
A pure copy
Copy reference but they change the style i.e. watercolor- Rendering has changed
Come up with New original pose, and in your own
Your own pose, style, and add a concept or something completely different i.e. Will creates known characters into children
Completely original pose, style, environment, and genre.
Every single thing has changed.
Why not create you own thing? [36:00]
Will- It’s rewarding aspect to recreated two ideas but there are pitfalls if not careful. Sometimes artist become reliant on fan art. Do it for the right reasons. You can ask- Do i do it for the love or doing it for financial gain?
Jed Henry is an example of creating “level 5” fanart. It is original and merges the IP and Henry’s style and vision.
Could someone young make fanart and avoid these pitfalls? [45:30]
Often times fan art is done for economical reasons and to gain tractions. However, young artists need to be mindful. Don’t lean on fanart. Doing fanart allows for great exposure but shouldn’t be that bulk of your work. Fanart can also be an interesting exercise as an artist to grow and learn.
Consider WIll’s 5 step evaluations. How much did you change it? Are you selling it? How close to the line are you? The closer you get to the line, the more you are going across the ethical and legal boundary.
Do the fanart to learn, get exposure and sometimes to get work but don’t let it be you main thing. Maybe for every fanart piece you do, do 5 original personal pieces. Don’t sell you soul to fan art.
Jake found another artist’s list that puts your fanart at risk [51:00]
Used original logo
Makes it tasteless, sexual, or slanderous
Little or no difference
Does not have a parody or influence of parody
If you sell a high number of prints or commission
If it caters to the same market as the copyright owner i.e. Marvel prints don’t exist
As an official (career) Marvel artist, you can sell prints and consider them official Marvel art prints. It helps to supplement those artists income. Other artist eat into this market- a thing to consider.
Another “pro” fan art point [55:00]
In the end, it’s still illegal, but it help keeps the popularity of the IP alive. Whether or not you get in trouble for it is entirely up to the IP owner.
LINKS
Jake Parker: mrjakeparker.com. Instagram: @jakeparker, Youtube: JakeParker44
Will Terry: willterry.com. Instagram: @willterryart, Youtube: WillTerryArt
Lee White: leewhiteillustration.com. Instagram: @leewhiteillo
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