Fun episode!
Personally, I feel pretty similarly to @Teju-Abiola . I did a lot of fanart as a teen, and still do it once in awhile, but I'm not really interested in selling my fanart work. I think its a great way to create work you enjoy and to connect with people who are into the same stuff you are, but I'd rather put my professional efforts into my own original content. Then again, I am not into any of the big IPs mentioned (Marvel, DC, Disney) and the stuff I'm into wouldn't sell more than a few prints ANYway. So, so, so.
I was wondering if Jed Henry was going to come up in this discussion, I'm glad he did. I knew him slightly, we took the same Writing for Children class from Rick Walton in school. If I remember, it wasn't just that his prints "weren't well recieved" as Will said, but that he hasn't been able to sell any prints in Japan, because their copyright laws don't recognize parody like the laws in the US--that as long as it is recognizable as someone elses IP and thats what gets the buyer interested in it, it is illegal. Of course this was awhile ago so I might be remembering the details wrong. Oh, and they aren't just "Vintage Posters", they are actually legit woodblock prints done the old school way. The guy who runs the studio who does them is quite the character and did a series of Youtube videos about it, I'm too lazy to look it up but someone should :-). He is sooo into woodblock printing and its fun to watch someone who loves their process so much :-).
Thank you for this episode on the podcast to discuss this topic.
I have a strange push and pull relationship with fanart.
For me currently now I produce fan art to showcase to IP holders what I can do with their IPs and present their work in new ways. It's almost like I'm pitching the possibilities and hoping for future collaborations.
However I do not monetize any of the work that I produce when it pertains to fan art. I believe once I do that all bets are off and it will harm me legally and possibly down the road financially.
For a previous job I use to work, we would design multiple illustrations to use as initial pitches for possible IP holders to show what we could do if we had the licence. Unfortunately management saw it differently and decided to just put all the design out their for sale online on marketplace sites. It was their belief it was parody and content that was just sitting there. I didn't agree with this, so we parted ways.
Just listened to this. Super interesting stuff.
I did have a question though. @Lee-White mentioned doing Little Red Riding Hood - which I've done. There are a wealth of those kind of recognizable stories that we could illustrate in a unique way, but I've had worries about that too. I've heard that the laws about story rights get dicey too. There's one in particular that I have a goal of fully illustrating. It's "public domain" and only been fully illustrated twice that I know of, but I was told recently that I still would have to contact the publishing house that had it last. Is this a fan art question? I don't even know. It all seems to exist somewhere on a very fuzzy line. But when it comes to illustrating those old "public domain" stories (or maybe a scene from a popular, but not public domain one, say Pride and Prejudice, or A Christmas Carol, Alice in Wonderland) are we talking about the same kind of legal swamp you have to try and wade through? Or is there a good resource for determining what's okay and what's not? Especially if I want to sell things?
@pamela-fraley Have you been to http://www.gutenberg.org? You can download any of the books that are there - they are public domain and you can use them however you like - there are a few simple rules i believe but these books really are public domain - here is the link to A Christmas Carol - http://www.gutenberg.org/ebooks/30368
@kevin-longueil Thanks Kevin! This is exactly the kind of thing I was looking for! I'll look up my other project and see if its on there too. It's a secret, but I actually really want to come out with an illustrated version of it with the original, unabridged text. Its a big undertaking, and I want to be legit about it.
In the US, anything published before 1923 is public domain, so all the books you mentioned qualify.
Slightly off topic, but if you want to listen to any of these public domain books while working, many of them are available on Librivox.org, the goal of which is to make all public domain texts available as audio files. The readers are all volunteers (including myself, years ago) so there is a definite range of skill and quality, still, it’s a free resource, and I made it through many a classic while drawing.
Back to fan art. 
@sarah-luann Yea, I think where it gets dicey is when I decided to put out my own illustrated version for sale. There's sometimes a difference between public access and selling rights. Which makes it a bit like fan art I think... maybe. I don't know. I might just have to contact a lawyer. I think my cousin works for HarperCollins I might see if she has any ideas too. Sorry to derail the conversation.
@sarah-luann @Kevin-Longueil @Pamela-Fraley Another great website for public domain, fairy tales, and classics is Lit2Go (http://etc.usf.edu/lit2go/) It also has audiobooks/tracks that accompany each written chapter and a pretty nice interface. It has a lot of what most would consider children's literature 
@pamela-fraley I'll qualify this by saying I'm not a Intellectual Property (IP) attorney and when in doubt it is always better to consult one (be sure to check out The Volunteer Lawyers for the Arts https://vlaa.org as this is the kind of basic question they would likely answer for free)
Okay, that said, public domain is wonderfully straight forward. Any IP (text, art, music, video etc) in the public domain is available for anyone to use. Once an IP is in the public domain it cannot be removed from the public domain. So if your text in question was published in 1922 or earlier you are good to go. You can publish and sell an illustrated version with no problems. Thing is someone else can also illustrate their own version and sell it. Now keep in mind that while the original text is in the public domain, your accompanying illustrations are not. Those are copyrighted to you for your life plus 70 years.
One of the things to keep an eye out for is thinking that because the original (for example) Wizard of Oz text is in the public domain that ALL versions of the Wizard of Oz are in the public domain. They aren't. If anyone has made significant changes to the text since 1923 those derivatives are copyrighted to the people who made the changes. The Judy Garland movie would be an example of this ( so DO NOT give Dorothy red shoes!)
Your issue really isn't a adjacent to the fan art topic. Fan art is fundamentally a copyright infringement, while public domain is very specifically not.
@davidhohn yea, I feel like I might have totally derailed the conversation.
But you know... drawing things that don’t technically belong to you... i guess it kinda relates. It’s definitely something I’ve been trying to get a handle on for a while. Thank you though! What you said makes a lot of sense. It’s actually super helpful.
@pamela-fraley I hope my comment didn't come off as a criticism! I really just wanted to clarify that you were in the clear copyright wise. Because here's the thing, the copyright to a text is completely separate from the copyright to an illustration of that very same text. This is why when I illustrate a book, the text is copyrighted in the name of the author while the illustrations are copyrighted in the name of the illustrator. My visual depictions of the author's written text do belong to me.
So I can take pretty much any copyrighted story I want and, based solely off any written description by the author, create my interpretation of a character or scene and it would be perfectly legal. I could take my new illustration and reproduce it, sell it whatever. Because I would own the copyright to my visual interpretation of the written text.
(I'll put a caveat in here for characters that have been trademarked. Trademark is a separate aspect of intellectual property protection that utilizes a different standard for infringement. For example Harry Potter has been trademarked by Warner Brothers. Rule of thumb: avoid trademarked characters)
What I can't do with my lovely new illustration is to pair it with (any amount of) the copyrighted text and sell it (or even give it away free) as that would be an unlicensed reproduction of the text. Any reproduction of the text itself is controlled solely by the author.
Now I've derailed the conversation! But I'd say it's a worthwhile tangent. A clear understanding of the concept of copyright will make the decision to step into (or avoid) the grey fog of fan art a more informed one.
BTW, I was reading your initial question to @Lee-White. I'm sorry to step on his inevitable answer but I can tell you that all the books you listed are currently in public domain. So illustrate away!
As the discussion continues I think there are some important concepts to keep in mind.
For the sake of keeping things a simple as possible let's define "fan art" the way Will, Jake and Lee did in the podcast -- visual depictions (artwork) of characters that you didn't create AND that someone currently holds the copyright to.
That kind of fan art (as described above) is a copyright infringement. Plain and simple. No question. No debate. If you are a safe, conservative artist who doesn't want to ever get sued or get a take down notice or even looked at askance by an IP creator just don't do fan art. Easy right?
But WAIT! -- before anyone starts freaking out, like all things copyright it's never quite so simple.
In practice I agree with pretty much everything Will, Jake and Lee discussed in the podcast. I just think clarifying the concepts is important.
When dealing with copyright infringements it's important to understand the difference between a basic "infringement" and an "actionable infringement". This was discussed in the podcast but I'd like to place greater emphasis on it. To further differentiate the two let's call them a "technical infringement" and an "actionable infringement"
We all create "technical infringements" pretty regularly. You, me, pretty much every artist. If you've ever found an image on the internet and copied it to your desktop, made a photocopy, scanned a page from a book on your home scanner etc you've "technically infringed" on someones copyright to that original text or image. But you've never been sued right? Of course not. Big part of that is because no one ever knows you've got that copy sitting on your desktop, but another aspect is that the infringement is so small that the copyright holder has determined it would be a waste of resources to follow up. Or, as was mentioned in the podcast, the copyright holder determines it's actually in their best interest to allow the infringements as a way of keeping the IP in the public consciousness. But make no mistake these small "technical infringements" are still exactly that -- infringements.
An "actionable infringement" is pretty much just like it sounds. An infringement that rises to the level that the copyright holder determines it is in their best interest to take action. Usually this is a simple take down notice, or a cease and desist. If ignored it can rise to some more serious legal action with a lawsuit and financial penalties being the most serious.
Keep in mind that there is no clear delineation between the two. What is simply a "technical infringement" for one copyright holder might be an "actionable infringement" for another. And visa versa.
Finally there is the "Fair Use Defense". Again, it is important to understand that ALL work that falls under the "Fair Use Defense" is fundamentally an infringement. The thing is that Congress has determined that some infringements are actually in the public's interest and have therefore carved out exemptions to copyright protections for these uses. "Fair Use" is a defense that an infringer can claim when the copyright holder tries to exert copyright protection over their IP.
For my new comic, I'm taking all the Justice League characters and putting them in the Star Wars universe. But I'm changing all the names to be from the Harry Potter books. That's ok right?
SVS Faculty Instructor
www.leewhiteillustration.com
Since we're already wandering from the topic, and Fair Use was brought up, I give you...
A Fair(y) Use Tale:
https://www.youtube.com/watch?v=CJn_jC4FNDo
@sarah-luann Holy Moly! I think they showed this to us in middle school to try and explain fair use and copyright in my computer class!
Its been around for awhile
@lee-white It may not be ok, but I want to read it!! Ha!
@sarah-luann This is clever (and a clear use of the Fair Use Defense) but wow, that was hard to watch! And I'd argue we aren't wandering from the topic. The subject of the Fair Use Defense was brought up many times during the podcast. In fact my impression was that it is what Will uses to defend his fundamental infringement of his "Little" characters (book and prints).
And to be clear, that last is not an indictment of Will or the "Little" characters. I am a huge fan of the Fair Use Defense. I believe it is vital to our culture. We need to be able to comment on pop culture and media giants. Fair use allows us to do that. But there is no question the Little's are an infringement. Merely that they may well be a defensible one.
@lee-white Ironically, with that level of mashup you could well be in the clear from a copyright standpoint -- but completely screwed from a trademark POV! (especially now that there is the precedent of Sony collaborating Marvel/Disney with the Spiderman IP)
Hard to watch, because it was maybe trying a little too hard make a point. This one is a bit clearer: https://www.youtube.com/watch?v=SiEXgpp37No
@sarah-luann @Kevin-Longueil @Pamela-Fraley Another great website for public domain, fairy tales, and classics is Lit2Go (http://etc.usf.edu/lit2go/) It also has audiobooks/tracks that accompany each written chapter and a pretty nice interface. It has a lot of what most would consider children's literature
