Selling Fan Art is NOT ILLEGAL - A Rant by a Fan Artist who is also a Law Student
If you see posts on tumblr going around claiming that fan art sales are illegal, such as this one by eleanorappreciates, please check your facts before believing them. This claim is quite inaccurate to anyone with legal training. This is probably a surprise to my followers who believe I’m a full-time artist, but I’m actually a 4th year law student.
Here’s the thing: In all my 4 years of study (with a focus in copyright law, no less), I have never been able to come to the conclusion that fan art sales are illegal. The legality of fan art is, in fact, a grey area.
My take is that fan art sale is more likely to be considered LEGAL than not. Evidence shows that fan art sale is often (but not always) mutually beneficial for both creator and fans. (This is also the conclusion I’ve reached based on personal observation, having been both a fan artist and copyright law enthusiast for some time.) The technicalities of this area of law are VERY COMPLEX and would take a whole final year thesis’ worth of space, so I’ll spare you. Just know that substantially creative fan art comes under the ‘fair use’ exception adopted by most respectable common law jurisdictions (if not, the ‘quotation’ exception of civil law jurisdictions which is basically the same thing), and it is generally ALLOWED. Do note that your work has to be sufficiently transformative - you have to add some sort of interpretive (commentary, satire, parody…etc) or artistic value to it in order to have your own copyright over your fan art. A direct copy in the style too close to the original may break your case because it isn’t different enough to be considered a fair derivative use. Different jurisdictions have different requirements of ‘difference’, and Asian jurisdictions tend to be more relaxed, surprisingly. In short, be as creative as you can and don’t copy the style of the original. It’ll make copyright owners less inclined to consider legal action, and your work will be better received.
Why is transformative fan art probably legal? Ever heard that the dwarf standing on the shoulders of the giant can see further than the giant himself? Most original creators today were fan artists once, and they understand how important it is to be allowed to learn and profit from the creativity of people before them. Best innovations are always built upon the artist genius of earlier works, and fan-art creation is a critical phase in the emotional and financial journey of many of the most successful artists in the world today. Fan art also directs profit back to its original market (that of the creator), and most legislators and copyright-holders embrace this whole-heartedly. How else do you think anime/game conventions and fan artists are able to survive so well to this day? The combination of legal uncertainty in the sphere of fanart, plus the greater likelihood that it will be protected by transformative use exceptions, plus the willingness of most copyright owners to forgo suing make selling fan art safe for a vast majority of artists. Therefore, make high-quality, thoughtful fan art and you’ll be fine in the eyes of the law and doing a huge publicity favour for the original creator. It’s a wonderful way to thank them for making your life better with their amazing stories, and they’ll be more than glad to have inspired you.
HOWEVER, if the original creator doesn’t want you to sell fanart for specific reasons, it’s another matter. Note that while they might not be able to take successful legal action against you, we should still respect their wishes as a matter of basic human decency. Not everything is a battle of legal rights - we shouldn’t wait for the law to force us to be considerate, supportive people. There are many factors influencing the sale of original works, and sometimes, it just happens that fan art will not fit well into the equation, causing the author to suffer instead. E.g, If Undertale creator Toby Fox suffers actual losses from fanart sales (and has clearly said so), stop selling Undertale fanart as a sign of support and appreciation for his hard work. This is not because selling fanart is illegal, but because you’re considerate of other people’s livelihoods. It doesn’t matter if they’re a big corporation, or an indie artist. If they don’t want you selling stuff with their characters, just don’t. (Note that selling and creating fan art are different matters) Respect their creative work and create something else. And by all means, continue to sell fanart only from other stories/productions that will be loved and encouraged by their creators.
So artists, you aren’t doing yourselves a favour by being ignorant of copyright law and spreading non-factual claims. Read up on this fascinating gem that is copyright law, learn everything you can and form your own well-reasoned conclusions. Don’t simply believe everything you see, no matter how well-intentioned or passionately written.
Thanks for sticking with me and happy transformative fan-art creating/selling!
