Fan art can be a real trigger topic for some people and it seems blatantly confusing for most. I want to talk briefly about it.
When you find someone contesting their right to distribute and/or sell fan art, it usually comes from a place of ignorance, naiveness, idealism, or nonchalance about copyright law.
When I confront someone about it, the response is almost always combative and I think there's a reason for that. No one likes to be confronted about doing something wrong, especially if they don't think they are doing anything wrong.
Before I give you the simple explanation of everything you need to know about fan art, I want to make one thing clear; I don't have a problem with fan art. There's nothing inherently wrong with fan art. However, that notion seems to be warped and manipulated by either a lack of concern or a lack of knowledge for copyright law. So, it's time to set the record straight.
For your own personal pleasure or artistic development, creating fan art is legal. Actually, it's down right awesome! You get to explore your favorite characters and stories and teach yourself what it takes to bring those things to life. That's something hugely rewarding from the perspective of entertaining yourself, but also as a tool for maintaining your passion and enthusiasm for art as you improve your skills.
However, creating and then distributing fan art without a license is illegal. Also, selling fan art without a license is illegal. Please notice there are two separate statements there. Distributing fan art and selling fan art are two separate issues, though it's very hard to sell fan art you aren't distributing. For those feeling unsure right now, to "distribute" just simply means to share. When you post to deviantART, or Facebook, or to the public in any fashion, you're distributing fan art.
Still, the culture surrounding fan art creates a lot of confusion. Most companies will not give you rights to sell and distribute fan art. However, many artists rarely receive legal action for distributing fan art, and often won't receive legal action for selling. This has spurred a misconception that companies don't care, or worse, that they encourage it. Worse yet, it's led some people to believe it's legal.
These ideas are mostly false. I say "mostly", because some companies absolutely encourage fan art, and some of the best companies will even invest in giving you a channel to share your fan art! I suppose some companies certainly don't care, but I haven't noticed which ones. These misconceptions don't stem from the legality of fan art, but from the risk associated with a company defending their IP. If you're only distributing fan art, you're not safe from litigation, but it's challenging for a company to justify the cost of taking you to court when you haven't earned money they can claim in damages. It's just not cost effective. Sadly, there's often this stigma of "the big bad corporation" squashing the "little guy". So naturally, public relations also becomes a factor. People who don't understand copyright and the value of protecting an IP will often lash out a company who chooses to do so.
That doesn't mean there's no validity to those negative feelings. Some artists feel it's a way to show their love for a brand or character. Some artists will claim it provides a greater service to the company through "free advertising", challenging the companies right to decide for itself how it's IP should be promoted. While others have strong feelings about what freedom of speech and expression means to them. Everyone has a right to how they feel, but those feelings don't make the distribution or sale of unlicensed fan art legal.
Unfortunately, there's this tiny little beast with the reputation of a legendary monster. This beast is Fair Use. Most people have a poor understanding of the limitations on certain laws, limitations like fair use. Fair use is often mistakenly brought to the defense of fan art, but it is without fail done without acknowledging the intent of fair use, and without fail, done without considering all factors of fair use as united factors.
While the terms of fair use are fairly clear, a small number of blundered court cases have also created contention around it's intent. One such contention comes from a single case discussing the transformative nature of the work, a word and principle not found in copyright law. It's important to understand that transforming a piece as legally defined in derivative work is an *exclusive* right of the copyright holder.
This post is not about the merits, morality, or ethics of unlicensed fan art. I can share another post about where I stand on that. It is about the legality of unlicensed fan art. Regardless of how you feel about unlicensed fan art, distributing and/or selling it is, unequivocally, copyright infringement. It is illegal.
Digital Arts Instructor