Episode 5: Should You Do Fan Art?

[Jake Parker]

Artwork by Tanner Garlick

We just dropped episode 5!

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!

You can listen to the episode and read the show notes here.

This thread is to discuss this topic. Tell us:

• your thoughts on fan art.
• any thing you learned from our thoughts on doing fan art.
• where you disagree with something we've said.
• what your main take away from this episode is.

[Miriam]

@Jake-Parker, @Will-Terry, & @Lee-White, thanks for another great discussion!

I used to think that copyright was created to protect the artists. It wasn't.
I agreed with the law (no one should copy, except maybe parody), then I was influenced by a couple things:

1. Will & Jake's YouTube videos that talk about derivative and transformative artwork &
2. CGP Grey's YouTube video "Copyright: Forever Less One Day".
   Today, (while I went looking for that video) I saw another one that made me question copyright law even more: "Early Copyright History" by Copy-Me.
   These videos talk about the history of copyright laws & who's behind them. The thing that these videos don't mention is the risk and cost that the distributers make to produce items--well, the second video sort of touched on this by mentioning that distributing & sharing work is easier now than it used to be.

I agree with how Jake described he'd feel if someone copied work and made a lot of money from it. It's great that they liked the IP enough to copy it, but it's bad for the original artist to not get any money or recognition from it.

So I think that I agree with doing fan art if it's just for fun, or it's a 4 or 5 on Will's "degrees of fanart" list & stays away from things on Kirawara's Fan Art Risk List. Or of course, if you have a license or permission. But I'm still not sure that I would try to sell fan art without permission & if I did, I would make sure to credit the copyright owner, and provide their info (e.g. name, website, etc.)

Also--Lee, you said you've never done fan art, but if I remember correctly, you said your Red Riding Hood painting was based on a friend's artwork. It was done with permission, and you've even credited him with the design, so--completely legal, but you could still say it's within the realm of fan art.

Here's a question, if you're ok with fan art--how do you feel about it if they copy your stuff, and turn it into something that you are strongly opposed to (e.g. morally, ethically, politically, etc.)?

[Teju Abiola]

Did you release this earlier than today? I'm pretty sure that I listened to this particular podcast last week. Anyhow, it was a good episode!

I think fan art is a really fun thing to do as a fan who really appreciates something. It's a way of honoring something you love. I have a lot of opinions about it. This will probably be a long post

I know of many artists who just do fan art and that's their entire career. Yes, many of them try changing it with a new style or point of view, but they rarely if ever make any personal work. Their following is purely based on their fan art, and therefore all their work is always reactionary to something someone else puts out and can get stale really fast. Your fans are not fans of your work, but of the IP that you are using. That's just a bummer to me.

However, I have a friend who did fanart sculptures and put them in her portfolio. She got approached by someone to make officially licensed work, got an internship working for a company who works on product for that IP, and is trying to get a license to sell certain pieces. But her fanart was very different than what is typically seen and filled a place that was currently empty in the market, and showed skills that those people were looking for. Disney and other companies have licensing divisions that just work on product for their parks and stores or certain brands etc that is basically making fan art for a job. I've heard first hand that they like seeing their licensed characters in portfolios. But that's done for fun and to get a job with those companies, and not to sell as your own.

I'm not a fan, no pun intended, of selling something with someone else's intellectual property. It seems skeevy to me to essentially rip off someone else's idea. It doesn't matter to me whether it's a big corporation or a small indie creator. If you really are a fan of something, isn't it better to support it with your own money so they can continue creating what you love? It seems sort of hypocritical to me that as artists we can talk about copyright law and protecting our work till the cows come home, but when it comes to a big corporation's ideas or an IP we like, it's open season. I want my work to be protected, so I should treat other people's work with that same respect.

I think people should make work based on what inspires them. I don't think fanart is bad at all. I think it's great when you love something a lot to express it. I love fanart actually. I wish there was more of it for things I like.

I wish people would take more creative risks when they do it as an exercise to stretch themselves. It's similar to a master copy to me. Do it, learn, have fun with it, but you'd never sell it as your own. I think it's a great way to expand your brand; a great example of this is Loish (she made a lot of fanart mixed with personal work early on and still does fanart on occasion, but now people follow her for her own content). But I don't think it's right or legal to sell it as your own without permission. Sure there is a lot of gray area, but I wouldn't bother.

I do wish there was a lot more fanart of music and books and poetry and food and things that people love but don't have a visual language assigned to them. Those always seem more fascinating to me.

TL;DR: In my opinion, making fan art is not the problem, and can have benefits. It's a great way to express your love for something. It's a great way to keep inspired and a great way to learn. However, it can be used as a crutch to gain followers, attention, and ideas, and when done too much it isn't the best for building a sustainable flexible innovative career. It is also not the best idea to sell it, for legal reasons and for the reason that it's better to be financially secure in your own projects rather than someone else's IP, unless you are working for them.

But that's just my long verbose opinion

[A Former User]

Incidentally, seeing this podcast pop up this morning gave me the motivation to finish a piece of Breath of the Wild fan art I've been polishing up for the past week or so (posted below). As far as fan art goes, I'm all for it. I look at it often and rather than just liking it for the characters themselves, it's often acted as an introduction which lead me to an artist's original work.

I also think fan art can serve an interesting role in extending the lore of a particular character or world. Especially in stories where there's a lot left unsaid. It doesn't matter if its official, people like to use their imaginations to consider all of the various what ifs.

Should artists be able to sell their fan art? Well, I have pieces from several artists on my wall and I think it'd be a real shame to be limited to official artwork only. Nintendo has never released anything like my Metroid and Star Fox woodblock prints from Jed Henry just as one example. I also have several wonderful pieces from Nimasprout (Nicole Gustaffason) and Kevin Hong. If Corey Godbey ever did a Zelda piece, I'd be all over that too. In short, I'd much rather see that kind of creative culture flourish than a rigid, often corporately controlled one.

And now for my recently finished Breath of the Wild fan art (click on it for a sharper version)...

[braden H]

Loved the episode and I'm glad that the whole thing is as murky to professionals with their own successful IP as it is to everyone else. Well, murky in one way and clear cut in another (illegal? Yes. Immoral? Sometimes...?)

Though from what I've seen at conventions sometimes it's less litigiously murky fanart and simply bootlegged product. SHAMELESSLY bootlegged product. On copier paper. Anyhoo...

The last two years I've started tabling at conventions 5-6 times a year. It's meant to be fun, and a way to meet other artists. However, when I first started I didn't want to LOSE money buying a table (which I'd heard happens to a lot of people just starting out) and so I followed a friend's advice and sold some prints of fanart. I sold a few posters, but I made easily double that on commissions.

Over the next few conventions I gradually phased out prints entirely and JUST sold commissions. I suppose what I'm doing is still selling fanart at times since people ask me to draw iconic characters (Batman, Wolverine, etc) but I'm selling originals instead of mass-producing posters.

I must admit I'm glad I didn't fall into the creative pit-trap of designing fanart for the sole purpose of selling it. Though a good source of money to some it's something I find kinda draining. Fanart for the sake of being a fan and wanting to express fandom is one thing, but fanart for marketability's sake isn't something I'll do anymore.

TL;DR: I used to try and sell some fanart. Made more money doing on the spot commissions. So no more fanart. Feel like I dodged a creative bullet.

[Lee White]

@miriam good points! to speak to your point about the piece I did based on my friends illustration, here's what I think:

being influenced by a piece of art and doing "fan art" is a bit different, although I see the point you were making. influence might be subject matter, color palette, composition, etc. but it's not "fan art" per se. To make something "fan art" it's implied there is an original concept that you are using that someone else came up with. For instance, if I did a batman inspired piece, that is fan art. In the case with my friend, the subject matter was little red riding hood, which is in the public domain and is more of a general classic story. In other words, there is no intellectual property breach in my piece. So I didn't really do "fan art" to get to my image as much as I did a piece based on how he handled story staging. The difference is subtle, but important.

Like I said, I see your point though, so each person needs to figure out what that means for them. : )

[Sarah LuAnn]

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 :-).

[JDawg]

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.

[Pamela Fraley]

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?

[Kevin Longueil]

@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

[Pamela Fraley]

@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.

[Sarah LuAnn]

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.

[Pamela Fraley]

@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.

[Teju Abiola]

@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

[davidhohn]

@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.

[Pamela Fraley]

@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.

[davidhohn]

@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!

[davidhohn]

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.

[Lee White]

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?

[Sarah LuAnn]

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