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Should You Do Fanart?
Description
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.
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 scu