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Fan Art Law

Mon Sep 10, 2012, 6:58 PM by techgnotic:icontechgnotic:







Fan Art Law


Mon Sep 10, 2012 by techgnotic












I

t seems there’s nothing quite as dear to the hearts of many of our deviants as their production of fan art, and at the same time, there is nothing so knotted with legal and ethical headaches. Imitation may be the sincerest form of flattery, but in the form of fan art it has also become one of the most frustratingly complicated. At some point, the sheer volume of fan art around a single property may become so large that the issue rises to another level of scrutiny by the creators of the original work.



With this dynamic in mind, we thought the following panel that Josh Wattles, our Advisor In Chief here at deviantART, and a mystery guest named Harold Smith, gave at Comic Con this year might be of immense help in understanding the ever evolving elements of fan art law.



Josh Wattles, makepictures is an expert on copyright law bringing perspective and experience to the issue from multiple creative industries. From art, film, music, and books, Josh has been directly involved in or advised on copyright issues for the biggest properties in the world. He is also a copyright professor teaching courses at at Loyola, Southwestern and the University of Southern California law schools in Los Angeles.











And for all of you Star Trek Fans out there, Josh was the first lawyer at Paramount Pictures to work with Gene Roddenberry on creating policy around the massive quantities of fan fiction submitted to Gene and to the studio some of which ended up as Star Trek stories published by Simon and Shuster.
















Interview withJosh Wattles







Should I worry about drawing or writing stories about characters from my favorite books, TV shows and movies?


makepictures:Not if it is a private activity.



Does whether I sell them or not make a difference?


makepictures:Yes. It’s not the best idea.







Can I copyright my own fan art which is based on already copyrighted material?


makepictures:It depends on how much of the original work you used and if the original work can be completely removed from the second work. When you file for a copyright you must disclose all pre-existing content that does not belong to you and you must have authority to use it. That’s a complicated question with fan art.









Different authors, artists and companies seem to have different attitudes about fan art, with some encouraging it and others forbidding it.  How can I find out which entities I might get in trouble with and who’s completely cool?


makepictures:You can’t unless you contact the owners yourself and ask. There are some situations that are ok because the owner is encouraging fan art, such as in contests.



Is there a list or index?


makepictures:No.






Am I responsible for other people circulating my fan art all over the Internet without my express approval or even my knowledge they’re doing it?


makepictures:Technically, maybe.



Are there websites I should familiarize myself with that explain how to stay “safe” within the bounds of “legal” fan art creation?


makepictures:
















2 QuestionsFOR DEVIANTS ABOUT FAN ART:






How do you feel when creating a piece of fan art or fan fiction around your favorite character or story?   







Is fan art a pathway in your evolution as an artist?










Josh Wattles, $makepictures is an expert on copyright law bringing perspective and experience to the issue from multiple creative industries. From art, film, music, and books, Josh has been directly involved in or advised on copyright issues for the biggest properties in the world. He is also a copyright professor teaching courses at at Loyola, Southwestern and the University of Southern California law schools in Los Angeles.

Highlighted Comments
[link] by *KrisCynical



Writers: $techgnotic
Designers: $marioluevanos
Panel Speaker: $makepictures
Video: *toddgrossman & `neither-field
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:iconmackey34:
mackey34 Featured By Owner Apr 2, 2015  New member
Hi, thanks for your great information! Well, it really seems so great. Jacksonville Divorce Attorney
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:iconken-masters:
Ken-Masters Featured By Owner Mar 1, 2015
this guy goes all around the way to a simple answer. fan art is illegal period.
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:iconstudiocgs:
STUDIOCGS Featured By Owner Feb 4, 2015  Professional General Artist
Thanks for sharing. This was a great watch.
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:iconpineapple-pocky:
pineapple-pocky Featured By Owner Jan 9, 2015  Professional General Artist
What about drawing commissions where the artist gets a very small profit, but the one who commissions it isn't going to resell it?
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:iconken-masters:
Ken-Masters Featured By Owner Mar 1, 2015
illegal
Reply
:iconpascua-tanya:
Pascua-Tanya Featured By Owner Edited Dec 15, 2014  Hobbyist Digital Artist
Good night makepictures. The theme of Fan Art is very confusing to me :(.

I have a big doubt about it: When the fan art is completely legal?. Since a few years ago I learned the true reality of the Fan Art and it was not pretty. I no longer have the same opinion as before and honestly the issue scares me. Since I was small I thought it did not matter if I drew my favorite character when I want. I thought that was normal, fully permitted without any charge. And now know that this belief is a lie....Now I know that the Fan Art is illegal o.O.

For me the Fan Art is a hobby and also a means to honor those characters that I like and their creators. My intention is not to make money with Fan Art or my original art, because I have no interest in doing business with my art. In my gallery not there Prints (only one but it's no big deal), for that reason. However, I am still concerned about the Fan Art and Copyright. Does Fan Art is only illegal when I want to get monetary benefit to him? Is it legal if I do just for fun and publish websites like deviantART or my personal blog?.

I really want to know if the Fan Art is legal in certain circumstances, if I will not have legal problems and if I can keep doing fan art without fear. I also have original characters (based on the style of a series but with design and own history, which if it is legal) and original art, but I love Fan Art and do not want to stop. But I do not want to believe that I'm doing something wrong just by do fan art.
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:iconmakepictures:
makepictures Featured By Owner Dec 16, 2014
I hope you watched the video about this on YouTube: youtu.be/xKBsTUjd910 It will calm your concerns considerably and provide you with good direction.  Making fan art and not selling it is considered to be a welcomed interaction with the subject of the fandom.  Companies that control major fan properties like Star Wars have come to realize that fan art is just the same as someone posting a personal review or writing a friend to recommend a movie or book.  Fan art starts to be an issue for these companies when it is sold (even if it is sold for charity) or when it damages the property.  Bad art, is OK, but art that shows bad things might not be.  Of course, copyright law and trademark is on the side of the property owner.  As a technical matter you need permission but on a practical level you don't - - in many cases.  Please watch the video.  It will help.
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:iconzarwhitetaker:
zarwhitetaker Featured By Owner Jul 5, 2014
It’s amazing to visit again n again coming to your blogs the superb effort is here.Special Lawyer
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:iconcupcakequeen16:
Cupcakequeen16 Featured By Owner May 9, 2014  Student Traditional Artist
I really need think twice about the art I'm submitting right now. I do not want to get into trouble.
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:iconthomassir857:
thomassir857 Featured By Owner May 2, 2014
It's been good to see your blog when I always look for such type of blogs. It’s great to discover the post here. criminal lawyer ny
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:iconnox-ious:
Nox-ious Featured By Owner Mar 18, 2014  Hobbyist Artist
Over all... as long as it doesn't involve money... it's okay , right?
and you credit everything to the original makers...
Reply
:icontxtoonguy1037:
TXToonGuy1037 Featured By Owner Mar 15, 2014  Student General Artist
 This is pretty helpful!! I can't stop coming to this page!!! :D (Big Grin) :D (Big Grin) :D (Big Grin) 
Reply
:iconzidneya:
Zidneya Featured By Owner Feb 28, 2014
How do you feel when creating a piece of fan art or fan fiction around your favorite character or story?   
Good because I show the world why,how, and what I like about that topic.

Is fan art a pathway in your evolution as an artist?
By learning to recreate and master the different types of drawing, animation, writing and perspective help any artist because they broaden their horizons.
Reply
:iconetsuko-hime:
Etsuko-Hime Featured By Owner Nov 12, 2013  Hobbyist Traditional Artist
i find it difficult to put words on my feelings for fan art :3 i love how i can spend days, weeks on 1 single drawing showing how mutch i love story and being able to draw the characters in my own setting! it is an amazing feeling and its just lovely to create art :D

i can't really answer this question, I'm only 21 my wiew on making fan art might change or i might end up drawing something else in the future, but i don't know that XD
Reply
:iconmrpryminista:
MrPryminista Featured By Owner Oct 6, 2013  Professional General Artist
Awesome! Thank you for putting this together! 

I recently did a piece of Predator fan art. You cant take a look at it here: crimsondaggers.com/forum/threa…

It is fan art, entirely non-commercial and I am not one of the original creators of the IP. However, it does emulate the original IP. I'd image I'm in the clear given that I've got 3 out of 4 parts correct.

I've also added the web address for my blog to the image. I am using an emulation of another creator's IP to promote myself as an artist.

Is that something I should be concerned about?
Reply
:iconsuikojay:
suikojay Featured By Owner Sep 23, 2013
I created some fan art of Sailor Moon, and if I wanted to upload them to the Internet so that others can view it, it sounds to me that it would be technically illegal?  And would it be illegal for me to use them as an avatar picture on a forum?

Thanks Josh!
Reply
:icondantesmilodon:
DanteSmilodon Featured By Owner Feb 19, 2014  Hobbyist Digital Artist
You should always search the web something like "does X franchise owner allow fan art?" 

From my knowledge, if you did a commission using copyrighted characters = wrong. However, it's even rarer to get sued for this than downloading and distributing thousands of songs.
Reply
:iconthereistoomuchbutter:
thereistoomuchbutter Featured By Owner Sep 3, 2013  Student General Artist
I understand the thinking behind being against already copyrighted characters/stories/tv programmes/franchises etc because these have all already been through the artistic process, a creator has already made all this up using their own vision. While there is NOTHING wrong with an artist then taking inspiration from that thing and making something new (I mean, no idea is really NEW right?) we shouldn't be able to make money from something that is blatantly recognisable as another thing that an artist has created-

But if the rules were not to copy/repeat something that was created by another artist and make profit from it we'd be all screwed...Romeo and Juliet (or a similar theme) would be copyrighted by old Shakey (although some might argue that it wasn't even his idea originally... was he the original fanfic writer?) and then we would all be restricted to such small lanes of creativity, which is crazy, we're a communal species, we bounce inspiration and ideas from each other, always retrying old methods and recreating old stories. (-I know you may accuse me of sailing down a slippery slope but basically I'm saying that ideas are free in the creative world - otherwise things like Twilight would never have happened (god forbid -.-))

But I can see that it's because these franchises don't want people making money from what is by law belonging to them (capital, property, money cha ching, the law is an ass etc etc etc).

But MY issue is with the laws regarding k-pop (/j-pop) fanart. Straightforward sketches and portraits I guess would be treated like any other celebrity. But there's quite a few of us now who are using k-idols' facial features/characters in a new setting we've created, essentially using them like a model. 

There's already been massive controversy over copyright because fanartists who aren't in South Korea (where most of the idols are most of the time) can only relying on a number of things as reference, one major source being fancams and fantaken photos, (spread through sites like tumblr) and there are many photographers who DON'T object to their images being used as reference as long as they are credited or linked to-they leave their credits on images (but then again, if you don't reference ONE specific photo, rather take a general impression from several sources you aren't effectually breaking the law, I guess?). And the other major source is through official mediums like music videos and fashion shoots, which I personally don't like to use because 
a) the image is not the best representation of them, having already gone through editing 
b) that's someone else's hard work; costume, lighting, directing etc etc has all gone into that, essentially it is someone's artwork and 
c) you're not doing anything NEW, just copying another image into another format (kinda like taking a photo of a painting and making it your own - something only conceptual artists would be allowed to do...)

I can understand that making money from someone else's "property" isn't cool...but isn't what we're (i.e. kpop-fanartists) doing very similar to every artist who's ever drawn something and sold it from people watching, without paid models? Or the fresh faced Victorian art students studying Michelangelo and Bernini and painting the Venus de Milo in their paintings? Or Andy Warhol and Marilyn Monroe's face? ????? Or is that different? idk

I mean, nothing is going to stop me being inspired by these people and using them as models (although if the law dictates I can't, I will just do it in private and not share it.) because it is almost always THEM and their personalities that drive any kind of concept I have.

Sorry this got so long D: ...I hate them blurred lines =.=
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:iconzomgmad:
zomgmad Featured By Owner Nov 2, 2014  Hobbyist
Romeo and Juliet (and all of Shakespeare's works) are in the public domain, as is the Venus de Milo.
Reply
:iconlarmax545:
larmax545 Featured By Owner Sep 28, 2014
Seems most litigation is created via law schools establishing arguments for commpensation in behalt of proposed clientel, it seems, however I do not know!  Best of luck!
Reply
:iconmakepictures:
makepictures Featured By Owner Sep 3, 2013
I'm a bit confused about what you make and what you do with what you make as part of your fan activity around these k-pop and j-pop idols.  If the your work is (i) not sold (particularly not sold as authorized in any way) and (ii) is only distributed to fan-based groups, then even though there are still legal issues the practical result is why would the management of the k-pop group want to stop you?  I assume if they asked you to stop anyway, you would stop as a show of respect to your idols.  The legal issues, since you describe your work as only using images as reference for faces, are principally ones related to the right of publicity.  The right to use someones face or likeness is usually protected only against commercial exploitation or a use that defames or injures the reputation of the subject.  To be clear, I cannot give you any specific legal advice and I wouldn't do so anyway with so few actual facts in front of me.  And the law is complicated and changes tremendously depending on where you are located.  As I said in the video, showing pure love as a fan should not be painful - - then again, love is painful at times.... haha.
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:iconjupmod:
JuPMod Featured By Owner Aug 19, 2013
I've recently gotten a deviant telling me that my buying of fandom/fan art commissions (meaning I pay artists to draw a fan art for me) is against dA rules and copyrights. Yet I've been buying fan art commissions for years here on dA, and if this is the case, why does the administration allow artists to draw fandom/fan art commissions? I and the artists are not making any money off these commissions, for they are fan art, meant for fun. I see no artists selling prints of these commissions either. 

So what's the deal? Are artists allow to do fan art commissions or not?
Reply
:icondrakeyuuhi:
drakeyuuhi Featured By Owner Aug 19, 2013
I wonder why this site allows people to pay others to draw fan-art like Naruto when this video telling me this site doesn't allow it at all.
Reply
:iconmakepictures:
makepictures Featured By Owner Aug 19, 2013
DeviantART will not sell prints of fan art because of a "potential" that the sale would be an infringement of rights and NOT because it "is" and infringement.  In some circumstances the fan art could be a "fair use" or otherwise permissible as explained in the video.
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:icondrakeyuuhi:
drakeyuuhi Featured By Owner Aug 19, 2013
Thanks for the reply just wondering that because I been seeing people paying outside this site to artwork of anime then posting it on the site saying they paid for it and things.
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:iconmuiroflanternwaste:
MuirOfLanternWaste Featured By Owner Aug 16, 2013
Um... I'm not an artist (never will be one, unfortunately), but I love fan art (and fanfiction) because it enables me to share something I love with other people in an even more personal way. If you buy a copy of a novel, say Lord of the Rings, you can see a world that someone else created. But when you create fan art and fanfiction, that world becomes a place you can enter. It becomes even more real. And you can share your love of the fandom with other fans, which is one of the best experiences I've had on deviantArt. It's like an MMORPG, but with infinite possibilities!
And if we're counting writing as a form of art, fanfiction definitely helps me write better. Writing fanfiction about characters that I don't usually create on my own challenges me to step outside my comfort zone. For example, I usually write from the perspective of middle school/high school girls. When I write fanfiction, sometimes I have to write from the perspective of a queen, or a teacher, or a father, which is very hard for me. So I'm forced to at least try to understand what it's like to be a completely different person, and I think that helps me add variety to my writing. 
Fan art is the whole reason I'm on deviantArt! 
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:iconacientlover1:
acientlover1 Featured By Owner Jul 18, 2013  Professional Traditional Artist
Hello Mr. Wattles.  I just watched your video on Fan Art Law.  I'm a member of Deviantart and I love the characters of Thor and the Avengers.  But, I'm confused.  You said that Marvel owns the rights, yet Marvel and Stan Lee aren't the original creators of these characters.  What would happen if all the Scandinavian countries, the land where these characters originally came from, come forward and scream infringement?  I do pictures of Thor and Loki, and other things, and I try not to copy from the owners, but I do look at them to get other ideas.  I love you Mr. Wattles.  Thank you for being such a wonderful talented, and I must say, a man with a sense of humor.  You're a jack of all trades, and I'm glad I got to hear you.  
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:iconmakepictures:
makepictures Featured By Owner Jul 24, 2013
Many commercial comic, animation, film and TV properties are based on folk tales and folk legends.  Artists are free to go back to the original source (as long as, to be safe, its been around as a folk tale since at least the 1800's).  But copyright does protect a new way of showing the character, particularly visually.
Reply
:icondl109emd:
dl109emd Featured By Owner Jul 18, 2013  Hobbyist Traditional Artist
Wow -- watching the video was quite an education and it was nice to hear someone with authority speak on it in depth.  I am a self-creator of a comic book series going back some years and have a large body of work regarding it posted here on DA; out of the more-than-a-thousand postings, there are about twenty that are fan art of other's published works.  Done out of pure love, not a penny taken in return, all with notes crediting ownership to the owners and disavowing any formal affiliation with them intended or implied by the creation of the drawings ... and I am right now within a hair's breadth of pulling all twenty off, RIGHT NOW.  Love may be one thing, but love don't feed the bulldog if somebody targets you.

As to the other discussion going on here -- original works being ignored while "mediocre" examples of fan art gets uber-wide viewing -- I really don't care if a page of "EnergyGirl" gets only fifty views while a "Supergirl" or "Powergirl" fan piece gets three million.  I DO care if somebody rips off my ideas and gets nasty about it, or portrays my work or characters in a way that I feel is uncomplimentary to the nature of who the character has been portrayed to be (by me).  Having fifty million people look at a fan drawing of "My Little Pony" does not (for me) dilute or diminish the fifty who found "EnergyGirl" and liked it.  Yes, it would be nice if one of those fifty million had looked at "EG" instead, but the fact that they were attracted to an already-established character rather than the "super-schoolmarm" is no refletion on her nor on myself -- these people did not consciously reject my work in order to look at the other.

Well, that's my two cents worth.
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:iconmakepictures:
makepictures Featured By Owner Jul 24, 2013
Well said.  You might enjoy Brian Kesinger's short video on fan art available within this Journal: fav.me/d6748e3
Reply
:iconzoehana:
ZoeHana Featured By Owner Jul 18, 2013  Student Filmographer
I create fan art because I love the artist/author, the characters, and the story.  I also create it to challenge myself as an artist.  I know from my past art classes that studying a master is the way to become a master artist myself.  I know the creator of Astro Boy and father to modern anime and manga spent time drawing and studying both Disney characters and Japanese traditional art to develop himself as the artist he became.  Because of that we now have what now known as Anime and Manga.  When I create Fan Art I love to post to Deviant Art to show those watching me my talent.  Though I work hard to create my own original art and characters as well so I can show my creativity too.  Though if I was applying to work for a corporation that owns a certain character, I would show my ability to draw in their style as well as the ability to draw their character.  Most Mangaka (Manga Artists) encourage future mangaka to draw work from already existing characters and even work underneath a master or established artists.  Chance to improve and get your name out as well.  Though it is important to know the laws and follow them.  There is a reason why they are there and we should respect them.
Reply
:iconmakepictures:
makepictures Featured By Owner Jul 24, 2013
Others agree with you and, as you say, there is a great tradition for artists learning from others.  youtu.be/rdbLkc_xC7I
Reply
:iconoblivionkeeper23:
Oblivionkeeper23 Featured By Owner Jul 18, 2013  Hobbyist Digital Artist
From what I understand, It's legal unless either 
1)The original creator says, publicly, that fan art, fanfiction, etc. Is not acceptable. Most people don't do that, instead they embrace it, flattered by so many fans.
2) you're making profit out of it. That's a big NoNo.
Reply
:iconmakepictures:
makepictures Featured By Owner Jul 24, 2013
You #1 is not correct.  It would be more accurate to say: "The original creator says, publicly, that fan art, fanfiction, etc. Is acceptable."
Reply
:icontintin4life:
TinTin4life Featured By Owner Jul 18, 2013  Hobbyist Digital Artist
I love writing but I'm usually stumped :iconmegustaplz:
Reply
:iconrowmansailor:
RowmanSailor Featured By Owner Jul 18, 2013
I feel that I am living a fantasy that isn't just my own.  Another person's idea is firmly nested in my head and on the piece, with only my tapestries for company.  It isn't mine, so the piece is a bastardization/perversion of thoughts that cannot compare to the quality of a separate, "original" ideas that are my own.

Pathway of evolution?  Nope.  Too many things to put on a page or canvas or screen to spend time spinning wheels in another's accomplishments.
Reply
:iconfireninjastar:
Fireninjastar Featured By Owner Jul 18, 2013  Hobbyist Traditional Artist
All art is inspired by someone or something. So tha makes this argument just the tiniet bit confusing.
Reply
:iconyoyobuddy:
YoYobuddy Featured By Owner Jul 12, 2013  Hobbyist Digital Artist
:iconmegustaplz: is how i feel writing fanfiction :iconrage-guy-plz: is how i feel drawing cause it's hard, but i want to keep going
Reply
:iconhopeless-alchemist:
Hopeless-Alchemist Featured By Owner May 24, 2013  Hobbyist General Artist
Fan art has given me a chance to practice my abilities as an artist and I'm starting to get better at drawing my own original characters. I'm also a fan fiction writer and it's given me a new perspective on how male characters think (I'm a girl, so writing from a guy's perspective often times doesn't seem believable). My guy characters now sound more like guys then what a girl thinks a guy would sound like. I think that fan art can be used as a means of training yourself.
Reply
:iconmich2mars:
mich2mars Featured By Owner Mar 17, 2013
what about a guy who's using a drawing of mine without my permission (an original halo fanart) pretending he made it. What can i do, because it's mine but there is no copyrights on it?
Reply
:iconmich2mars:
mich2mars Featured By Owner Mar 17, 2013
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