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techgnotic — Fan Art Law
Published: 2012-09-11 01:58:01 +0000 UTC; Views: 235973; Favourites: 1581; Downloads: 0
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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.
Video by: toddgrossman & scottpagano 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? 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?
Interview withJosh Wattles
2 QuestionsFOR DEVIANTS ABOUT FAN ART:
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Comments: 3475
After reading this article and the reply Josh Wattles gave to a user (more precisely Keriva) i feel much more relieved as i was thinking not to post anymore fanarts because they are technically illegal (you make a derivative work that is based on something created by another person without his/her permission) at least basing on the video linked in the journal and other sites i visited to gather info. Anyway i still prefer to contact companies of fandoms i am into to see how they see question (you can always find them and read their copyright policy) along with a specific legal advice to my lawyer because i want to have a wider and deeper understanding of the matter.
How do you feel when creating a piece of fan art or fan fiction around your favorite character or story?
I feel very refreshed in terms of energies and feelings and despite the feeling is almost the same i have when i create something original, i like to show my appreciation for the story/show/character etc. not to mention sometimes i like to play with ideas and personal concepts with the character him/her/itself but i always pay attention not to make the character out of character unless i want to make a parody or humourous piece but in this case i state explicitly in the description of fanart it's a parody or humourous work. Plus i see it a way to show this story that might be unknown to my watchers or people who know me. Recently i discovered a cool 80's dark fantasy work thanks to fanarts of a great Artist i watch here, so fanarts can be a powerful tool to spread knowledge and fun.
Is fan art a pathway in your evolution as an artist?
Yes and no. I explain myself better; yes because a fanart is also an artistic exercise that helps me to learn new styles (i.e. manga style) and fix artistic concepts in my mind. No because my main source of learning is from original works and inspirations i take from real world. I think a fanart can be a powerful and important pathway in an Artist evolution because just like you learn to ride a bicycle with the help of your parents you can learn basic concept of draw, style, proportions, colours, perspective from something made by another person. I think even creators of works we adore, made fanarts when they were kids or teens. It's a virtuous circle.
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I have a question, if you don't mind
"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?
To this question you answered "Technically, maybe."
But let me ask you, how can someone control what other people are doing? Let's say I draw a fanart, not for money, just for my own pleasure, and someone takes it (without my permission or even my knowledge) and starts selling it.
And there is no way for me to stop this from happening. Sure, I can try to talk with that person and convince her/him to stop selling but what if he/she doesn't listen to me?
So, why is this my fault? It's not me who's gaining money from this, it's not me who broke the rules and started selling, I just wanted to draw for my own entertainment with no thoughts of gaining money.
Would I be sued too along with the person who started selling against my will?
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I know it has been a while since this article was posted, but I still wanted to comment . it some one made Fan Art and he say Do not reprint my work without permission and Do not edit my works can he do it he do not own original work. and so can i copy the Fan Art he made and make it Different to is they ok and who own the copyright
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your question is old but just in case:
As far as I understand, you still own copyright to your work(to the execution), just not to the content (so you can't profit off it without permission from the content owner - which usually means license and royalties). Even I, when someone draws my character, can make it taken it down (by reporting) but they also can forbid me to post it(display) and successfully report me if I do it anyway and make it taken down.
There may be some differences but I don't think they would be drastic, the differences are more of the content owner's tollerance levels - like small creators like me are much more personal about their charatcers etc. and will more likely report misuse (as long as a court is not needed), while huge companies treat this as business and have other stuff to worry about, and they usually treat things as not worth it, unless it's about very large sums of money, much more than a few thousands (which ofc doesn't mean this tollerance should be abused the way it is all around!).
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I know it has been a while since this article was posted, but I still wanted to comment, so here I am... I've read this article and watched the video many times now (and done some other research on the topic, too), but this topic is still very confusing to me.
What confuses me the most about this, is what exactly is considered as "private use". Does posting fan art/ fanfiction to my Deviantart gallery count as "private use" or should I just keep my fan works stashed in my desk drawer/computer folder and not post them to Deviantart, where techically anyone can see them?
What about fan characters? Those are generally created by fans themselves, but they are often more or less based on of the fandom that they are a fan of. And, even if creating/posting fan characters on its own isn't considered illegal, is using the canon characters of the fandom in your work (for example, a part in a story where the fan character is having a conversation with a canon character) considered as illegal, since the fan here does not own the canon character or the series?
Also, another thing about the whole copyright law that puzzles me, is that how do I know which country's copyright law is to be followed? For example, I come from Finland, but since I am a huge fan of anime and manga, most of my fan works are about my favorite series/characters, which are protected by Japanese copyright law. But if I were to post my pictures to Deviantart, would that mean that the U.S copyright law would apply, since it is what the site works under?
I would never even want to make actual money with my fanworks, they are created simply because of my adoration towards whatever it is that I've made the artwork about. To me, creating fan art is simply a way to express my adoration towards the series, characters and its creator. Usually, I feel very happy about creating fan art and it has helped me to learn a lot about drawing and writing. The only thing about it that makes me sad is that since I don't want to find myself in any sort of trouble because of it, I don't post my fan art anywhere, even if there is a side of me that would like to share it with other fans of the series/characters.
Therefore, I post only my completely original work to my deviantart gallery. However, to educate myself, I'd still like to know what is legally okay and what is not when it comes to fan art.
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I'll try to give you an answer to each of your questions but please keep in mind that I cannot give you specific legal advice and if you have further questions or doubts about any particular application of these concepts to something you are doing or making, then you should really consult your own lawyer.
You wrote: "....what exactly is considered as "private use"......."
Posting to DeviantArt without placing the fan art into the print program or offering it for paid download is most likely a protected fair use. It is similar to placing a single copy on a gallery wall. But there are some assumptions built in to this statement. The most important assumption is that the fan work (the Second Work) is not just a pure copy of something distributed by the original IP owner (the First Work) and that the Second Work adds its own expression and statement. However, if the owner of the First Work files a DMCA takedown notice on DeviantArt, DeviantArt will very likely remove the work. If that happens you would have an opportunity to contest it with a counter-notice but before doing that you would really need legal advice. You can read about the DMCA process in our Copyright Policy: about.deviantart.com/policy/co…
You wrote: "What about fan characters? Those are generally created by fans themselves, but they are often more or less based on of the fandom that they are a fan of. And, even if creating/posting fan characters on its own isn't considered illegal, is using the canon characters of the fandom in your work (for example, a part in a story where the fan character is having a conversation with a canon character) considered as illegal, since the fan here does not own the canon character or the series?"
Creating new characters to interact with the cannon or bringing in characters from some other property is in effect producing a derivative work based on the First Work. The right to create a derivative work is an exclusive right of the copyright owner of the First Work. So, your activity would have to be considered a "fair use." If there is no commercial exploitation of the Second Work and if the context of its display clearly defines it as fan work and if the Second Work is essentially respectful and if the Second Work is a not a direct copy of the first work or of other third-party works and the the Second Work makes its own statement, the Second Work is likely to qualify as a fair use.
You wrote: ".....how do I know which country's copyright law is to be followed....." In your case for content posted on DA it would be Finland (assuming you also live there) and the United States. Both of these countries have international treaties under which their general copyright laws are very similar. The United States law would apply to DeviantArt's activities. Finish law would not apply to DeviantArt although DeviantArt might choose to respect its laws. Japan is also a member of the same international treaties and so the works of Japanese artists and companies are fully protected in both the United States and Finland.
You wrote: "Usually, I feel very happy about creating fan art and it has helped me to learn a lot about drawing and writing."
Please continue to express yourself in ways that feed your creative energy. Copyright laws are supposed to encourage authorship and creativity for the benefit of the society at large and it would be very sad if these laws stopped artists like you from doing the work that inspires you.
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Thank you so much for the explanation, I think I got it now
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Concerning "fan-art", I have done some oil pastel paintings of works that were created prior to 1920, like the one in the link below. I've heard that artwork like this doesn't infringe on any copyrights due to the signing of the "creative commons" law that was passed indicating that if such work was done prior to the 1920s, it was okay to copy it without any penalty's. Can anyone please provide any help concerning this? Please send me a note and let me know. Thanks!
Keith J.
kdj-imagery43.deviantart.com/a…
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uh I wanted to upload some of my stories (funfictions), but reading this I don't really know if I can do it.
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From what I've been reading here, as long as it doesn't directly copy the original work and you treat it respectfully, you are fine putting your fanfiction up. Especially if you cannot get paid for it.
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Nobody gets arrested for fanart unless they're a commercial company making/stealing lots of money, say 10K+, and piss off the wrong company. You wouldn't get sued for pirating Splatoon, but perhaps you would for an EA game; You might get sued for selling pictures of the Imp from Dungeon Keeper, but perhaps not for pictures of Pikachu from Pokemon. Don't do it out of spite for nicer companies or you'll get screwed. It's illegal like connecting to open wifi, but who gets arrested for it?
tl;dr you won't get arrested unless the company is greedy and it's small-scale fanart (low-income fanart selling, commissions, personal use, and anything else that's not just for commercial, high-income purposes), but just don't overdo it.
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sigh ever since i heard of copyright law's i haven't been able to draw fan art i mean i want to but i can't out of fear. I feel like the ideas are infront of me but i am chained up so i can''t and all i can do is cry. I wish i never heard about copyrights... I wish i could forget about them forever.. I could just draw them myself but what's the point.. \
:edit: yikes that was dramatic..
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So, I can't sell fan art, correct? But am I allowed to sell it in support and give the money to the creator/owner of what franchise I drew for after asking for permission?
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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.
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Can we submit screenshots as long as they are in scraps
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- 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.
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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.
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Fanart isn´t illegal!! You can post it, show it what ever you want. BUT making money with Fanart that´s illegal!
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About selling yes, about posting no, but unfortunately, some people think different.
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im confused are u saying selling fan art is illegal right?
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Selling it, yes, creating for a support, no.
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okay so if i post it just for fun and for the love of it im safe? kays
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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 ?
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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/
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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
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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.)
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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.
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this guy goes all around the way to a simple answer. fan art is illegal period.
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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
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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.
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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.
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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.
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fanart is ilegal whatever the reason. I'm an expert in copyright laws and can tell you that.
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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.
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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.
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www.youtube.com/watch?v=P5QXpb…
You need to listen to this about art theft being illegal.
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Read it. Incredible what they did.
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read the interview. The guys is telling is a bad idea to sell or publicly the fanart and you still believe it is a good idea.
You are acting like immature morons. The same as those guys smoking weed in your local square saying things like if I'm not caught it is not illegal.
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The only immature moron is you who don't know nothing about copyrights, you are bullshitting and recycling the same thing over and over. We wrote what we wrote, we said what we said. Don't you like it? It's your problem, not mine. I've done this discussion. You obviously came here claiming that you are someone and something when you are nobody and nothing! We tried to polite to you, but there is no use in having a discussion with you. I see that you're obviously just here to make accusations rather than looking for any real assistance so as I said, I'm ending the conversation.
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Makes me grateful that Hasbro and Disney are incredibly lax when it comes to fan art. Hell if I recall, several of today's Hasbro artists are found through incredible fan works. They even host contests to find a new face to join their comic family in their fan communities. Disney.. not sure if they do the same, haven't heard otherwise I'd be all over that faster than the Flash. I do know that their hired artists have stolen fan art from their fans and put it on merchandise, only for Disney to remove it and apologize on their behalf to their fans.
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Speaking with him there is no use. It's like I'm speaking with a brick wall. But yes, I'm glad too that Hasbro, Marwell, Disney etc. have nothing against us for making a fan art support of their hard work.
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Anyway, I blocked him. He's not worth my time. I tried to polite to him, but after he told me that I'm acting like a moron, I infinitely block him. And yet he claims to be 30 years old. How ironic really.
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How embarrassing for my generation.. christ all mighty..
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I cannot by believe my own eyes how he's trying to be so smart and edgy when he isn't. He went butthurt when I proved him a point about fanart. I gave him the reference from the fair use category and he claimed how that is an opinion of some loser, not the law.
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JFC.. And he dared claim I shouldn't derive the topic and should get lost. Excuse me but public forum. If you don't like it don't start a conversation in the public's viewing eye.
Try hard that's hardly trying if you ask me.
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I know right? If you want to share your shit privately, do that through notes so no one will see it.
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