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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
Add a Comment:
 
:iconthenorthremembers3:
TheNorthRemembers3 Featured By Owner Oct 15, 2015
i hate Copyright laws. im an artist, i do both original pieces and some fan art. Ive had too many friends tell me, "oh you need to sell your art". but how exactly am i going to do that when everyone says you cant sell the fan art , when some of it might be considered transformative.  i dont recreate a scene for example, i come up with something original. you would be surprised at some of the art i come up with. 
Reply
:iconnicthewerecatqueen:
NictheWerecatqueen Featured By Owner Oct 12, 2015  Hobbyist Writer
Can we submit screenshots as long as they are in scraps
Reply
:iconmondoart:
MondoArt Featured By Owner Aug 27, 2015  Hobbyist General Artist
- How do you feel when creating a piece of fan art or fan fiction around your favorite character or story?  
I loved it, if its a character I love or admire I would do my best to show respect by drawing as accurately as I can

- Is fan art a pathway in your evolution as an artist?
Absolutely! by first learning how to draw from certain artist and certain characters I love, my skills grew and helps me develop my own style.
Reply
:iconusername-91:
Username-91 Featured By Owner Aug 10, 2015  Professional Digital Artist
I think making a trouble of how fanart is illegal is nothing but a waste of time. I haven't heard yet that a fan art creator got sued for making a fanart. Only fool would do that who believe that fan art = offense. Not fanart = a compliment. A respect for a hard work that artist(s) put in.
Reply
:iconpiepmatzz:
piepmatzz Featured By Owner Sep 2, 2015  Professional Filmographer
Fanart isn´t illegal!! You can post it, show it what ever you want. BUT making money with Fanart that´s illegal!
Reply
:iconusername-91:
Username-91 Featured By Owner Sep 2, 2015  Professional Digital Artist
About selling yes, about posting no, but unfortunately, some people think different.
Reply
:iconsonicgirl018:
sonicgirl018 Featured By Owner Jan 24, 2016  Hobbyist Traditional Artist
im confused are u saying selling fan art is illegal right?
Reply
:iconusername-91:
Username-91 Featured By Owner Jan 25, 2016  Professional Digital Artist
Selling it, yes, creating for a support, no.
Reply
:iconsonicgirl018:
sonicgirl018 Featured By Owner Jan 25, 2016  Hobbyist Traditional Artist
okay so if i post it just for fun and for the love of it im safe? kays
Reply
:iconyuukixakira:
yuukiXakira Featured By Owner Jul 20, 2015  Hobbyist Digital Artist
i still dont understand it completly.
for example naruto is a manga and also an anime.
what will be acceptable and not ?
for example if i draw scenes from the serie and post them here for free am i allowed to still do this ?
and if for example i make bases or original characters of naruto and ask money of them is this still allowed ?
Reply
:iconpiepmatzz:
piepmatzz Featured By Owner Sep 2, 2015  Professional Filmographer
You can draw fanart. You can even copy scenes, but then you have to "quote" the original refrences and tag that with "exercise" or something like that.
But If you want to sell your fanart, earn money with it: that´s illegal. v.v

chrisoatley.com/fan-art/
Reply
:iconyuukixakira:
yuukiXakira Featured By Owner Sep 3, 2015  Hobbyist Digital Artist
so for example if there i would where to draw an character from naruto with a original own created naruto character from someonelse and he or she pays me for it i am working illegal then since naruto still is in the picture and should not be drawed for money ?
trough how about fanmades then if someone made a fan character and i dont know that does that mean its illegal too
Reply
:iconpiepmatzz:
piepmatzz Featured By Owner Sep 5, 2015  Professional Filmographer
If Naruto is still in the picture and you want money for that: illegal!
If this Artwork is a Fanart and you only want to post/show it: legal. (but there are a very few artist, who don´t even want Fanarts or Fanfictions)
But you have to mention, which copyrights this Character belongs to. For example "Fanart of Naruto, ©Masashi Kishimoto."
If you don´t know the name of the Artist (or even don´t know the name of the Character) you can write something like:
"All characters belong to their rightful owners."
But if you draw an OC, who "could" take place in Naruto and want money for this (because it´s an comission or you want to sell it), that would be okay (I guess).
Sometimes you have to chose the right words. You can´t say "This is my OC from Naruto.". Say something like "This Character is inspired by the manga Naruto"
or "A character design which could take place in a Naruto Manga".
But this could also be a legal limbo. And often you have to do research.

[For example: Disney starts to produce the new animation movie "xy". They need someone to design a charater. This character should be tall, very loud, and blah blah blahhhhh.
So there is this character designer, who draw this character. Disney doesn´t like the first version, so there will be different versions or maybe small changes. Finally the character is
perfect and Disney wants to use this character and do what ever they want to do with it. BUT this drawn character belongs to the character artist, if there isn´t any contract, which
buy the copyrights or say that all what you draw for Disney (even the not used versions) belongs to Disney.
So if you design a character, based on this or that written character sheet the drawing belongs to you! (If there isn´t any contract)

But the copyright laws, dependent on the particular country. For example: In the USA you can buy all the copyrights, but in Germany the creator never loses his/her copyright (there
could be exclusiv-contracts or even temporary-contracts but you can´t sell the copyrights completely).]

"...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."
>> www.plagiarismtoday.com/2010/0…
Check out this link and especially the "Staying Safe" part.

I hope I could help you.
(I´m not a lawyer. No responsibility is accepted for the accuracy of this information.)

Llama Emoji-22 (Waving) [V1] 
Reply
:iconserinne:
Serinne Featured By Owner Edited Jul 18, 2015  Hobbyist General Artist
Thanks for all these informations.
I personally consider that fanart is a good way to make a work live a long time, for example works that ended years or decades ago. It can attract new readers/viewers/fans that could possibly buy the original art.
I'm currently writing fanfictions and if I couldn't do it, I would not forget the original works but at least put them aside after some time. One can only read (in the case of a book) a work so many time before feeling bored. Fanworks keep untertained and maintain the enthusiasm for a work.
So I consider fanart a really good thing.
BUT !!! I DRAW THE LINE TO NON-COMMERCIAL USES !!!
While sustaining the interest for a work is good, making money on it is not. This is offensive to the autor. I would be extremely angry if fanart was completely forbiden because some people don't respect the autors.
As an artist, I permit people to do fanart of my works if they refer to me, do not usurp my identity as the creator and if they do not try to sell it.
Reply
: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.
Reply
:iconsonicgirl018:
sonicgirl018 Featured By Owner Jan 19, 2016  Hobbyist Traditional Artist
Im sick and tired of u! when u think about almost all stories in the world are copyrighted. like half of the disney movies are based on other things like how most of the lion king is based of hamlet or how the little mermiad is based off a book not made from disney!! some people could consider that infringement pal. so why dont u shut up and keep you're thoughts to your self 
Reply
:iconusername-91:
Username-91 Featured By Owner Aug 10, 2015  Professional Digital Artist
Then have fun saying that to over 10 million fans of anime, 2 million fans of Sonic The Hedgehog and 1.5 million fans of Walt Disney TV shows. You'll need it.
Reply
:iconken-masters:
Ken-Masters Featured By Owner Oct 8, 2015
I can say that downloading music is illegal and everybody knows it. Same with fanart. Just because everybody does it doesn't make it legal.
Reply
:iconusername-91:
Username-91 Featured By Owner Oct 8, 2015  Professional Digital Artist
Fanart is legal as long as it's not made for commercial purposes. Do a research of fanart dedicated to Disney or any popular movie, you will find tons of it.
Reply
:iconken-masters:
Ken-Masters Featured By Owner Oct 8, 2015
fanart is ilegal whatever the reason. I'm an expert in copyright laws and can tell you that. 
Reply
:iconkashimusprime:
KashimusPrime Featured By Owner Oct 8, 2015  Hobbyist Digital Artist
Excuse me but Fan art is, in a sense illegal. Companies allow it because it's free advertisement for their works. If it were illegal I and hundreds of other fan artists would have been slapped with a C&D and a summons to court for copyright and trademark infringement years ago. 
Reply
:iconusername-91:
Username-91 Featured By Owner Edited Oct 8, 2015  Professional Digital Artist
Fanart is legal. No, you aren't an expert for copyrights. KashimusPrime is making tons of fanart and she have a bigger experience than you do.
Reply
:iconkashimusprime:
KashimusPrime Featured By Owner Oct 8, 2015  Hobbyist Digital Artist
www.youtube.com/watch?v=P5QXpb…

You need to listen to this about art theft being illegal. 
Reply
:iconusername-91:
Username-91 Featured By Owner Oct 8, 2015  Professional Digital Artist
Read it. Incredible what they did.
Reply
(2 Replies)
:iconken-masters:
Ken-Masters Featured By Owner Oct 8, 2015
read my last 2 comments. Just because everybody does it doesn't make it legal. Period.
Reply
:iconusername-91:
Username-91 Featured By Owner Edited Oct 8, 2015  Professional Digital Artist
You can bitch about as much as you want, but fanart is legal. Get it through your head. It falls under fair use category.

United States

The legal status of derivative fan made art in America may be tricky due to the vagaries of the United States Copyright Act. Generally, the right to reproduce and display pieces of artwork is controlled by the original author or artist under 17 U.S.C. § 106. Fan art using settings and characters from a previously created work could be considered a derivative work, which would place control of the copyright with the owner of that original work. Display and distribution of fan art that would be considered a derivative work would be unlawful.

However, American copyright law allows for the production, display and distribution of derivative works if they fall under a fair use exemption, 17 U.S.C. § 107. A court would look at all relevant facts and circumstances to determine whether a particular use qualifies as fair use; a multi-pronged rubric for this decision involves evaluating the amount and substantiality of the original appropriated, the transformative nature of the derivative work, whether the derivative work was done for educational or non-commercial use, and the economic effect that the derivative work imposes on the copyright holder's ability to make and exploit their own derivative works. None of these factors is alone dispositive.

American courts also typically grant broad protection to parody, and some fan art may fall into this category. This has not explicitly been adjudicated with respect to fan art, however. Moreover, while parody is typically afforded protection under § 107, a court must engage in a fact-intensive, case-specific inquiry for each work.

Reply
:iconken-masters:
Ken-Masters Featured By Owner Oct 8, 2015
that's just an opinion of some loser not the law itself. There is nothing vague about the law. If you kill someone you are a murderer and go to jail unless you have a good lawyer and he/she gets you out.

Same with copyright. If you get caught you go to jail unless you have a good lawyer. 

You can bitch all what you want but fan art don't fall under fair use. Fair use is for other uses. As fair use is only if you borrow a small amount of the copyrighted work (30% or less). In fanart you are borrowing everything. From the colors, the clothes, the looks, the eyes, the expressions, etc...

much more than 30%. You can fool yourself as "my style" but try to prove that "style" exists in a court of law... 
Reply
(2 Replies)
:iconronerk:
Ronerk Featured By Owner Sep 15, 2015  Student Traditional Artist
lol rofl lmao
Reply
:iconusername-91:
Username-91 Featured By Owner Sep 16, 2015  Professional Digital Artist
:roll: I swear kids these days.
Reply
:iconstudiocgs:
STUDIOCGS Featured By Owner Feb 4, 2015  Professional General Artist
Thanks for sharing. This was a great watch.
Reply
:iconpennydox:
pennydox 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?
Reply
:iconken-masters:
Ken-Masters Featured By Owner Mar 1, 2015
illegal
Reply
:iconusername-91:
Username-91 Featured By Owner Aug 10, 2015  Professional Digital Artist
Read a comment better kid. She said, "Commissions" not "fanart".
Reply
:iconken-masters:
Ken-Masters Featured By Owner Oct 8, 2015
I read it. Commission or not still illegal it is.
Reply
:iconsonicgirl018:
sonicgirl018 Featured By Owner Jan 19, 2016  Hobbyist Traditional Artist
your acting like an a$$ my aunt called her layer about fan art ans uch and her lawyer said it was fine as long as u dont sell it
Reply
:iconusername-91:
Username-91 Featured By Owner Oct 8, 2015  Professional Digital Artist
Fanart for commercial purposes yes. Making it support someone, no.
Reply
:iconken-masters:
Ken-Masters Featured By Owner Oct 8, 2015
btw I'm 30 years old... da member for at least 7 years... kid.
Reply
:iconusername-91:
Username-91 Featured By Owner Oct 8, 2015  Professional Digital Artist
You don't act like you're 30. I'm 24, so control yourself.
Reply
:iconken-masters:
Ken-Masters Featured By Owner Oct 8, 2015
dude the guy in the interview is saying. It is only OK for personal use. Personal use means for myself and to show it to some of my family members and friends. Internet is NOT personal use which makes it ILLEGAL.

I am way above that guy in terms of copyrighted knowledge. I've worked in copyright firms and sent to jail hundreds of counterfeiting artists but if you don't want to believe me at least read again the interview and believe the guy.
Reply
:iconusername-91:
Username-91 Featured By Owner Oct 9, 2015  Professional Digital Artist
Then have fun suing millions of us here on deviantART. You didn't sue anyone, you have a sick complex because you cannot create a good fanart. 
Reply
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