Art and Copyright – The Legality of Fan Art
Have you ever wandered through a convention or fan event and spotted fan art for sale? Perhaps you paused and thought, “Wait a second, doesn’t Nintendo own that property?” This curiosity leads many to ponder the legality of fan art. Is it illegal? What rights do you have when purchasing such art? In this blog post, we will dissect the complexities of copyright, fair use, and the nuances surrounding fan art.
If you thought that only big companies, selling thousands of products and making huge profits are the only ones who will get themselves into trouble, you are sadly mistaken. New AI tools and the rise of ruthless, digital “heavies for Hire” mean that even the smallest artist will be hunted down and harassed to within an inch of their sanity. I fully stand by any artist who wants to protect their work, but there are ways and means of doing this in an “amicable” manner. There is a huge difference between protecting your business and hiring digital debt collectors to “send the boys round”.
What Qualifies for Copyright?
At its heart, copyright is a type of intellectual property that’s different from things like trademarks, patents, and trade secrets. It covers original works that are captured in some kind of physical form. This means that ideas by themselves can’t be copyrighted; they need to be recorded somehow, like in music, paintings, sculptures, or even dance performances. However, ideas, genres, or styles aren’t covered by copyright. For something to be eligible for copyright, it just needs to show some originality and creativity, which isn’t a high bar to clear.
Copyright kicks in automatically when a work is created, so you don’t have to register it to have rights. That said, registering your work can be beneficial, such as giving you the ability to take legal action if someone infringes on your rights. Generally, copyright lasts for 70 years after the creator’s death or 95 years for commercial works. The aim of copyright is to encourage the creation of new works by giving creators exclusive rights to what they’ve made.
Public Domain
Since the early Mickey Mouse characters entered the public domain, there has been a surge in creative expression. This shift has inspired various projects, including The Mickey Mouse horror video game series that creatively reimagines these iconic characters in new and unexpected ways.
The release of these characters from copyright restrictions has allowed artists and developers to explore fresh narratives and concepts, pushing the boundaries of traditional storytelling.
Approach Disney with Caution
Although the 1928 depiction of Mickey Mouse is now in the public domain, you cannot freely use the image of Mickey Mouse as a whole. This is because Disney still holds copyright on later versions and trademarks on the character. Trademarks protect the character’s brand identity, preventing others from using it in ways that could confuse consumers or harm the Disney brand.
Therefore, while you can use the specific 1928 version, you must avoid infringing on trademark rights or using any elements from versions still under copyright.
Rights of Copyright Owners
As a copyright owner, you hold several important rights. You can reproduce your work, share it with others, perform it in public, and even create new works based on it. This means you can control how your creation is used by others, which is a great way to protect your efforts and ideas.
However, there are some exceptions to these rights. One of them is known as the “first sale doctrine.” This rule allows someone who has legally bought a copy of your work to sell it or lend it to someone else without breaking copyright laws. For example, if someone buys a book you wrote, they can sell that specific copy or lend it to a friend, and this wouldn’t count as unauthorised distribution.
These rules help balance the rights of creators with the needs of the public, ensuring that creators can benefit from their work while allowing for reasonable use by others.
Understanding Fair Use
Fair use is a critical concept in copyright law, allowing individuals to use copyrighted material without permission for specific purposes, such as criticism, news reporting, teaching, or research. However, fair use is not a blanket protection and is assessed on a case-by-case basis, considering four main factors:
- Purpose and Character of Use: Is the use commercial or educational? Is it transformative?
- Nature of the Copyrighted Work: Is the original work creative or factual?
- Amount and Substantiality: How much of the original work is used?
- Effect on the Market: Does the new work compete with the original?
Notably, the most significant factor is the effect on the market for the original work. If the new work competes with the original, it is less likely to be considered fair use.
Common Misconceptions About Fan Art
Many artists mistakenly claim their works fall under fair use, but this is often not the case. For instance, if an artist creates a piece that closely resembles a copyrighted character, they are likely infringing copyright, even if they believe their work is transformative. The reality is that most fan art does not qualify as fair use, especially when it sells in a competitive market.
When discussing fan art, it’s essential to consider specific scenarios to illustrate copyright infringement:
- Exact Copies: If an artist sells a poster that directly copies an image from Nintendo, that is a clear violation of copyright.
- Bootleg Products: If you unknowingly buy an illegally created item, you are generally not liable for copyright infringement, as possession alone does not violate copyright law.
Licensing Copyrighted Content
When you’re an artist using images from the internet, it’s important to stay on the right side of copyright laws. Copyright protects things like photos, paintings, and digital images, so understanding how to use them legally is key.
First off, make sure you have the right licences. Royalty-free licences let you use an image multiple times for a one-time fee, while rights-managed licences have specific conditions like how long you can use it or where. Creative Commons licences vary: some let you use images freely, while others have restrictions like non-commercial use.
Where to Find Copyright Free Images
To keep things simple and safe, buy images from trusted sites like Shutterstock, Getty Images, or Adobe Stock. I have a paid membership to the fabulous Depostphotos to ensure I stay safe here on the blog. Always read the terms of any licence you get to make sure you’re following the rules.
If you’re using images for inspiration, consider public domain ones since they’re free to use without copyright concerns. Check sites like Wikimedia Commons or Flickr for images with clear usage rights. If you’re changing an image a lot, it might become a new work, but that’s a tricky area legally. It’s always a good idea to ask the original creator for permission, especially if your new work is similar to theirs.
Another option is to use images just as inspiration and create something totally new. Keep records of where you found images and any permissions or licences you have. By following these steps, you can enjoy creating while staying clear of copyright issues.
Our Current Predicament
Despite the legalities, why do so many artists continue to sell fan art at conventions without facing legal action? Major corporations like Nintendo may not have the resources to pursue every individual selling fan art. Often, they target the most significant offenders, allowing smaller creators to operate under the radar. Furthermore, companies may tolerate fan art because it serves as free promotion for their brands. . . . or this is how it USED to work.
We are now living in the age of AI. The rise of photo recognition by AI, has spawned a whole new level of shady, litigious “debt collection” companies, or “heavies for hire”, who will show up in your inbox with threats of legal action and demands for immediate payments of exorbitant fees, often starting at £1000 and rising the longer you ignore them.
This means that you no longer have to be a huge company, printing mass print runs or drop shipping from China and making millions, no these thugs for hire will find even the smallest artist, who paints a single painting using a pic they saw on Pinterest for inspiration.
We will be taking a closer look at this issue, right here on the blog, once we know more about the process. The fabulously talented artist Stephen Gent Art is currently on the radar of one such company, Imagerights.com over in America. They have not however contacted the artist directly, but gone after myself, the Founder of the Silk Purse Guild, who could not paint a portrait of the legendary David Bowie if you put a gun to my head! Despite clear terms and conditions covering the use of my website, this UK based company are holding me personally responsible, which is incredibly stressful and damaging to my mental health.
So keep an eye out on the blog, as I will be documenting the entire sorry tale as it unfolds, to hopefully help other creative and artist avoid the incredible stress that comes from the bully tactics they fire into your inbox.
If you have every received any communications from ImageRights.com, this article by the Florida based legal legend Darren Heitner makes an incredibly interesting read.
Navigating Fan Art Legally
In summary, while fan art is a vibrant part of fandom culture, it often exists in a grey area of copyright law. Most fan art likely constitutes copyright infringement unless it meets the stringent criteria for fair use.
Despite this, many artists continue to create and sell fan art due to the leniency of copyright enforcement by major corporations. This is a mistake, and I encourage every artist out there to do some research and stay safe online.
Final Thoughts
As a creator or consumer, understanding the complexities of copyright law is crucial. If you’re considering selling fan art, it’s wise to consult a legal professional for guidance tailored to your specific situation. Remember, while the art world thrives on creativity and expression, respecting copyright laws ensures the sustainability of the artistic community.
Feel free to share your thoughts or experiences related to fan art and copyright in the comments below!
It is a scary old world out there. Sorry to hear you have been subjected to this at no fault of your own. X