If you’ve ever been to an Artist’s Alley at a comic convention, the thought, “Can this be legal?” has surely jumped into your head.
Easily half the artists exhibiting at any mainstream Comic Con or Anime Show make and sell fan art. And by “fan art” I mean merchandise featuring characters the artist does not own: prints, buttons, tee shirts, key chains, hats, tote bags—I even saw Captain American mittens at the last show I attended.
And if you count the amount of artists who offer one-of-a-kind, original commission sketches of copyrighted characters, the percentage shoots way higher.
Surely Marvel owns the right to Captain America, we think, even if that sweet girl sitting at the booth was the one to knit the mittens.
But the question is: Does Marvel really care?
When it comes to fan art: What is legal, and what is not?
There is a lot of myth that clouds the truth of fan art in regards to what you can and cannot be sued for.
Perhaps you’ve heard some of the following myths:
- One-of-a-kind, original drawings and paintings are legal.
- Since everyone does it, copyright holders must not care.
- If I only sell fan art at conventions, and not online or in stores, it is okay.
- If I’m not making a profit from my fan art, it is legal to draw someone else’s characters.
Some Anime Shows have begun limiting the amount of fan art you can bring: either only a certain percentage of the kinds of items you sell can be fan art (i.e. only 30% of your prints can feature copyrighted characters) or, they’ve limited the amount of an item featuring fan art that you can sell (i.e. you can only bring 10 copies of any print featuring copyrighted characters.)
One show I exhibited at had such a strict “No Fan Art” policy that convention staff members actually policed the alley throughout the show. I was scolded for having a (not for sale) image of Harley Quinn on my commission sign as an example!
Fan art and copyright infringement might seem complicated, but really it isn’t:
Do you own the character in question?
- Yes? Do what you please!
- No? You have no legal right to profit from work featuring characters without permission from copyright holder.
- No? You have almost no rights to create such works not for a profit, either.
This video is a real world, straight-shootin’ explanation of copyright law given at San Diego Comic Con earlier this year. Josh Wattles is the advisor in chief to deviantART and is a funny lawyer (imagine that) who describes the nature of fandom candidly—both its benefits to the copyright holder and the problems.
If you currently (or plan to) sell fan art at a show, online, or as one-of-a-kind original commissions, you must watch this video.
If you currently (or plan to) make fan art without intent to sell, just for the love of the fandom, you must watch this video.
And then, proceed with caution.
I know people personally who have been told to stop selling items by one of the “Big Two.” I even have personal experience in the matter in regards to treading too close to the line—in a parody that didn’t even use trademarked characters.
So watch this video and be informed. “I didn’t know it wasn’t legal” does not stand up in court.
Links mentioned in the video: