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The Legality of Fan Art and US Law- Booklet by Tylon The Legality of Fan Art and US Law- Booklet by Tylon

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I had this in the process for awhile. There was a contest on here about what you, as a member of DA, would like to see improved. I remember one of this issues I had was I reported some users for selling fan art (which is illegal) and the staff didn't care, they basically said "well everyone does it". I felt highly offended at that remark and concept. So, I figured I would enter the contest with this as my backup- a booklet, raising awareness on how fan art is deemed illegal, and the US laws to back it up. Not only that, but to show the audience and artists of DA how US Law and copyright come into place, all in one.

Now I was worried that when posting this, some of my friends might feel offended because I have a lot of friends who do enjoy fan art, and this book isn't to offend or say fan art is bad, or put anybody and their work down, but rather to raise awareness and have this as a reference here on DA, for everybody to look at, see, and refer to.

This book is from a creative professionals outlook, from my experiences and research. I want to try and show high school students or individuals looking into art school or college what to do, and from experiences, what to not do.

To prevent the book from sounding so negative, I added a questionnaire at the end for users to comment if they agree, disagree, or are neutral to the topic. I wanted to involve the community somehow, the audience of DA. So I asked some of my watchers to participate, and am thankful for those who did. I am always open to suggestions and recommendations on this topic. Instead of aiming this towards the DA staff, I am working more towards the artists in this community.

Now for people who know me, I am not a fanartist. I would like to add a section FOR people who are fanartists, and their view on the subject, perhaps the subject through their eyes. A hobbyist which is more appropriate, to showcase if the creative professional has a point, the carelessness of corporations, etc. I might eventually post this later on my website.

So if there are any fan artists out there, who feel their personal rights are being threatened, or if any professionals out there had an issue with this topic, feel free to post your experiences, thoughts, feelings, etc. If you would like me to include your feedback in the book, please message me. I would be more than happy to talk with others interested in this topic. If you are NOT from the USA and would like to talk about the laws in your country regarding infringement and fan art, I would be more than happy to speak with you about that, and adding perhaps another section on foreign law.

Thank you all. Please be respectful and professional about this. It might not be every-bodies taste, but I do respect each and every-bodies opinions, whether it be for the topic or not, which I am stating not only here, but in the book ALONG with the inspiration to why I am posting this.

If you have any questions or see errors, please do say so. I didn't see any; I kept the user comments unedited so people could see how they feel through their eyes and words.


Again, thanks to those who participated: ~osmanassem , ~Adonis0 and ~DANgerous124 .
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:iconhiddenworlds:
HiddenWorlds Featured By Owner Feb 4, 2014  Hobbyist General Artist
I love this it really helps me prove to myself that this actually Is illegal like I thought...It's very accurate and to the point. I'm going to fav it so hopefully more people will see how it works.



• How do you feel about users profiting from fan art?
I feel like it's extremely risky for the seller and maybe even the buyer depending on the situation...Also if they profited a lot from the fanart..I can see how it could eventually get so bad that people that want to push laws like SOPA into action could use this as a reason in the US which would affect all us artists worldwide so that is why I am against making PROFITS with it..I have recently seen DISNEY ripped off by a game company that obviously would make multiple profits so that's why it's becoming more worrying to me..

Are you a fan artist? What is it about Fan art you enjoy?
I don't mind fan art made for fun to try out art styles, it seems a good way to practice understanding how style works as long as it's not done for profit...Maybe characters based off of shows could be ok too with heavy editing but still don't feel right doing it for profit..(Also it can make them the opposite of their original role which is very strange..) I don't mind pretty fanart that makes sense from pokemon mainly and this is because I actually really like and played red blue yellow silver gold crystal...x and y a lot and understand the characters and art and how it should be. It's not as fun if you don't get the show, movie or game it's based on and I would not do any if I didn't understand the characters/story either because it would be difficult to picture how they should look/be posed as well. Fan art that does not make sense can be pretty darned hilarious and make me laugh though so I think that may be part of the reason people draw it/look at it...Can see how others find it creepy/too strange though.

• If you dislike fan art, please state your reasoning.
I don't really dislike it but would say for those that want to make a portfolio that it can be a bad waste of time to make it instead of studies of real life and scenery (I HATE how a LOT of people here ignore backgrounds and scenery even myself included for the longest time  x.x I'd rather they take longer and not be sitting in air especially if the artist is making a comic...and I heard this is considered very important in portfolios lately or at least makes you look more professional..) So to sum it up I think it's a fun thing to doodle and mess around with on your own time but it's kinda like gaming or other not so productive habits if the people you want to hire you will not be impressed/hate it and morally wrong/risky to your reputation to SELL even if people want to buy it. I doubt they will punish people for drawing trademarked characters on their own time and then posting them because they probably remember doing the same thing when they started with art..But I guess they could potentially try to enforce it. *Imagines poor crying 10 year olds who can no longer post* =( SOPA at it's worse would sure be horrible and that's why I dislike fanart for PROFIT but not fanart in general..Adults should take responsibility by not doing it for profit in the first place cause it effects every potential artist in their country..


• How do you feel about staffing in communities such as DA who do 
nothing to protect against the selling of fan art and profits?
I think they feel like they cannot control the sheer volume of posts at all unless someone complains...So I can see how people desperate for money can find targeting big companies in other countries like Japan tempting (and the opposite I suppose? But a really bad idea with Disney's history lol) Cause they think people from the company are too busy working on their next project and don't come here and they are most likely right and even if they were here are unlikely to see it....Now someone popular here is more likely to have the art taken down for them. That just makes sense to deal with first...and apparently they don't have a great reputation for that either but I'm new and hopeful...Also I'd rather they take down porno type stuff (I know people post themselves nude as art though..) that is not supposed to be here than these people selling prints or sculptures like this even though it's worrying. Usually it's original pieces at least but I still feel like a few of these people will be found and charged eventually and don't want to be one of them. To summarize I don't think this is the staff's job and something will happen eventually anyways...Cease and desists have happened at least but not enough and think a small fine would be more effective like $50 when found...*Runs away and hides for saying that..* Done. XD



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:icontylon:
Tylon Featured By Owner Feb 5, 2014  Professional Artist
Thank you very much for your well thought out comment! It's great to hear what/how other users feel as each person has their own experience with fanart and portfolio building. I do plan on revising this and adding more as a section on educational use as a lot of colleges often offer rebranding projects and due to the nature of the work- it often is acceptable when in that particular setting. If you have any ideas- feel free to let me know! I would love to do something like a "how to present yourself and your work online".

I understand the topic is very controversial and can hit home for a lot of people; but it's really a serious, serious thing in the real world if you are choosing to make art a career. I know I get written permission and signatures if I am dealing with work I did not personally create; and even at my actual full time job- we take licenses seriously as something as simple as showing even a similar looking character (it might not even look like the actual character but have similarities) can have devastating consequences. It is really scary- and a lot of young artists are either not educated in this area or try to scoot by with thinking design and art are all about making things look nice; when in reality it is much more complex than that. You have to do research.

A lot of users have found me through the forums and other posts. I have gotten into disagreements in the past where work was stolen/ being profited from on here where no action was ever taken; so since then- I really try not to post too much on here. Im lucky the commissioner (in my situation) refunded the person who stole my work and then removed the work they made as I do not allow people to draw my characters without my permission. I always get the "well everybody does it" scenario from admins; who in all fairness should know better and remove illegal work once pointed out if the artist choses not to and was reported. I have a letter drafted up just incase another situation were to ever arise.

A lot of art sites and even only selling platforms do not allow any fanart due to potential lawsuits and a bad reputation (a lot of craft sites too are starting to have problems with this as well); so while I think it's great some artists simply feel inspired and don't want to profit and want to do what they love- a lot don't care; and a lot of young artists who do not know any better follow their idols by thinking it is ok to do so because it is so promoted; then they can possibly miss out on a great opportunity such as an education or job in their industry of interest when they get older and try to apply (I have had this happen to friends- the inspiration behind this booklet). I had users on here even see some of the posts where admins and high end users were defending fanart and thought it was ok. They argue you can get work from infringement if you are good enough. However, the reality of an artist receiving a job from a work that is infringed is very, very low and extremely rare. I do not understand why it is often promoted in such a way that it is accepted and seen as a good thing. I have had people contact me feeling mislead by the community and asking for additional help to get themselves back on track. Some were even rejected from potential internships due to their DA accounts and what they posted. 

A good client/ company/ college will do a lot of digging on you and your work- see the kind of stuff you post on your social media sites, the kind of art you are interested in, how you hold your online identity etc. It's scary; there isn't much of privacy anymore. I removed a lot of my social media accounts because of this- if I have friends who show themselves always partying and I go for a job and the employer sees what my friends post- I can be viewed as an unreliable candidate. It happens all the time. Perhaps I need to think about making one for social media and the professional world as well.

I think DA is a great community for younger artists and those wanting to develop their skills and/or network; but for the most part- a lot of the target market seems to be anime/ cartoonists who are indeed- often younger and are unsure if they want to do art professionally. As soon as I hit college- I removed most of my gallery and favorites as some of the work could have been questionable if a client ever found me. I have joined some professional groups in my industry on here- however I feel there is a lot of hostility as well as immaturity; I ended up finding out through clients they were being spammed by artists from the DA groups I was a part of stating false information. So now- I really only share my crafts and fun doodle work. All of my professional work is on my website. 

I have met some incredible people on here; who are truly lifelong friends and I cannot thank DA enough for providing a great community to network with other artists. I just wish the laws were more out there and promoted; that both sides of the story will be shown rather than giving the impression "you can get a job from infringement" state the consequences, provide resources for those who want to take art a step further in their life. I never saw that being done; so with my education and constant research I decided I would put booklets together and try to help those who are interested in furthering their knowledge or those who possibly want to go into art and a career. :) I have had mixed responses from some people; and I have a lot of comments on my site as well with users seeking additional help wanting to gain a foundation for a creative career. In all- I'm really happy that people are taking the time to read up- and if I can help in any way; let me know. :)
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:iconrockabell-neko:
Rockabell-Neko Featured By Owner Jul 31, 2013  Hobbyist General Artist
this is actually really interesting. I always thought it was a bit dodgy selling fanart and so on, but I had no idea that it's potentially illegal.

• How do you feel about users profiting from fan art?
I disagree with it. When I made small 'Rise Of The Guardian' figures, everyone was asking me to sell them - but why? For a start they were a one-off thing I made for fun and to enjoy, and secondly, profiting from something that wasn't my own just doesn't seem right. it's like someone copying my OC, making her into a huge anime franchise and selling pictures, figures, CD and dolls of her to make a profit. it's just not fair. 

• Are you a fan artist? What is it about Fan art you enjoy?
I try to stick mostly to original art, but every now and then it's nice to draw your favourite characters, and even if the design of the characters aren't original the initial thought behind the image may be. Some Fanarts I love because they're really thought provocative, and make you want to learn /more/ about the character. 

• How do you feel about staffing in communities such as DA who do 
nothing to protect against the selling of fan art and profits?
I don't really think it's up to DA to monitor the selling of fanart. DeviantART is a site for art, and though it is mostly used for profit, it's still not something like eBay where the whole profit part is a major part of the site. Usually artists use DA as a way of getting a message out that something is for sale, but they use sites like eBay and Etsy to actually sell them on. Other sites however, I believe should try to do something about it.
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:icontylon:
Tylon Featured By Owner Aug 3, 2013  Professional Artist
Thank you for your well thought out comment! I had gotten inquiries about sales for items too based off animals I had sewn previously (ie- I made my own version of a pillow pet with my own pattern; however it became so popular people were asking where they could buy one). I see a lot of people these days instead doing "craft swaps and trades" to try and get by the laws.

Actually- according to US copyright law; drawing ANY kind of fanart is actually illegal without explicit permission from the copyright holder. A lot of art based websites do not allow any fanart to be posted; and the ones that do often require strict permission from the copyright holders.

That is why when I started college my Professors and law instructors told me to remove EVERYTHING that was not original due to possible employment problems. Good thing I did too- because I had been in some situations where the employers were intrigued by my characters- and continued to ask questions to make sure they were indeed original- which in my case they always were. They would ask questions like "where is this character from? Are they from a show?" and questions like that. I started to see how the legal problems apply to the business environment. They would have argued if I included any fanart in my portfolio that I was infringing upon the copyright holders; therefore how do they know I would not do that to them? Very valid points- I have seen a lot of talented, young people be rejected from work simply because they had no idea the possible problems it can cause. I have also seen some copyright holders take extreme measures to protect their characters; I worked with a lot of mascot designs for corporations who prohibited me from using any materials online or even on my website; only a hard-copied portfolio was acceptable. With that being said- fanart has become an area I tend to avoid at all costs now. I understand not everybody wants to be a professional or go to school and not every company might not take such extreme measures; and I do in many ways miss being able to draw my favorite pokemon and share it; but at the same point I see the possible risks that are involved and I want to keep my reputation as a dedicated professional who abides by the law and understands it in my profession.

DA is one of the few, few places I see fanart being allowed and so accepted. I can appreciate they want to allow everyone to share their love and passion for art; but at the same point I feel many young artists who want to become professionals and make art a career might suffer because they are not guided in the right direction. A little while ago I met a young fan artist from here who was trying to get into art school through an internship; the advisers for the internship saw that she had fanart in her portfolio and rejected her; they then took her aside and explained why and encouraged her to start making more original art with variety. She thought it was ok because she was a member of sites like DA and saw everybody doing it, especially her idols- therefore she didn't think there would be any harm.

I personally have no problem with people doing what they love; if they enjoy writing fan fictions and drawing their favorite characters let them. Most of the artists are not causing problems and are trying to show the world they enjoy whatever it is they draw- and often the companies view it as advertisement. I have seen some incredible works of fanart on the net; and some artists can really capture the characters/ switch them up with their own ideas. Unfortunately in a professional environment- that is often highly unacceptable. What it comes down to is how serious a person wants to get with this. I have to take it seriously due to my industry and job. Not everybody might feel that way.

I heard of a lot of lawsuits and copyright problems on other sites allowing users to sell fanart or fan-made merchandise; so usually it is the people selling and pushing their work out there who are the ones getting in trouble. I had a good friend ask permission to sell a shirt that was fanmade from his favorite game; the people of the company were so honored that he asked they even offered him a possible internship if he was interested. Everybody has their own experience and feelings about this topic. :) At the end of the day- I do hope my guides could help out those individuals who wish to pursue a profession/ career by providing them with a foundation.
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:iconszelenbaum:
Szelenbaum Featured By Owner Jun 24, 2013
I don't understand - if selling fan art is illegal, then why SO MANY superb top level artists on DA sell it (even if they do it at their blogs or sth, and here they're only posting the image)?

I even asked one of the artist who made a superb pics of characters like Mononoke Hime or Dante from Devil May Cry to comment on this manner. The only response was total silence.

Soooooooo... Are those great artists just playing dumb?
Reply
:icontylon:
Tylon Featured By Owner Jun 24, 2013  Professional Artist
First off- I would like to state this has nothing to do about being creative and talented; I'm sure there are a lot of talented people who draw fan art out there. It has to do with the legal system in the USA. Yes there are a lot of fan artists on here- why they still continue to be able to sell their work and are encouraged is honestly beyond my understanding (I have approached staff members about it still with no direct understanding why it is promoted)- especially seeing I have seen a lot of young, talented people hurt in their career by doing such thinking by following their idols they will succeed. I think that DA wants a place for all kinds of artists to be happy and share their work- and I don't see anything wrong with that except when only half of the story is being told. While it is great to share your work- what happens when your work can hurt you when you apply to college or an internship?

DA is one of the very few art sites that allows fan art (or so I have seen) which does not require direct written permission or use of contracts. While I understand some people don't mean any harm and simply want to draw something that inspires them- there are young individuals who want to go to art school or freelance and get paid work; and in the real world- having any relation to fan art in your portfolio can be very damaging to your reputation. I have witnessed this first hand on many, many occasions.

For example- in my industry of Graphic Design; If I were to ever have a piece of fan art in my portfolio and apply for a job- the company would most likely reject me because they look at it as a business would and should. I should be experienced enough to know the law graduating college; if I were to draw fan art that would show them I really do not know about my industry or I do not take it seriously/ care; therefore if they were to hire me I would be a potential cause for a lawsuit. If I were to infringe on other characters and copyrights I could just as well do that for them- and that is a risk they cannot take. I have seen many individuals never getting the chance to pursue a career in art or design simply because they got too into fanart- or included it in their profession resulting in a loss of work/ tarnishing in their name. Back in high school a good friend of mine was rejected from 4 art schools because she drew fan art. I cannot always blame the students- a lot of high schools do not allow students access to resources or have the teachers to help them out with applying or portfolios. So often- they do not know right from wrong. If my friend had variety in her portfolio and more original ideas (which was the reason why she was rejected)- I'm sure it would have been a much different story for her. I had a great teacher who taught me right from wrong and helped me with my first portfolio. Now when I can- I help others.

For all of the companies I worked for- I had to sign a strict contract stating I would not use their mascots/ characters outside of the project- I could not even include it in my portfolio under their agreements only hard copied and in person. That is how serious it can be taken. Granted not all companies are so strict with the work done for them.


One of the arguments on why fan art should be drawn and allowed as one individual previously mentioned is that once in a great while- an infringer might get a job opportunity because they are so good at drawing the character. That is extremely, extremely rare- most of the time individuals receive a cease and desist order and are told to stop- and if they do not- a lawyer is involved. I had a good friend of mine ask permission from his favorite company to draw and use fanart in his portfolio- the company respected him so much they not only allowed him to- but also offered to sell his design and a potential internship.

While I really enjoy DA and have met some incredible people on here and respect the diversity- I do not agree with a majority of the things happening; such as the heavy promotion and focus of fan art which has become quite distorted; making everybody believe it is highly acceptable when in reality in any profession or career if you were to draw or work with fan art without a contract- it can ruin you. I felt there is not enough focus on the other side- the side I work with on a daily basis. I know the main audience on here isn't into the whole professional thing- but there are some artists who are; and for those who appreciate it and want to make a career and go to school and learn the law- this is for them. I have received wonderful feedback from individuals on here- who were once blinded by their idols and thankfully got a second chance to do art again. One young artist was rejected from an internship because she had fan art on her site and portfolio because she saw a lot of her favorite artists on here do the same figuring it would help her out; she was rejected from the internship and taken aside and told why. She then wrote a report on why it is wrong; why she did it- and what she learned from her research projec. She was later accepted into that college where she now tries to study the law on the side.

While I don't like to discourage people from drawing something they enjoy- I would like to point out the harm it can cause for those in the long run wishing to pursue a career. For someone that has no interest in doing such- they might not find this as valid to look into. I would like to now provide the resources for those who now might get a chance at pursuing a career in something they love.

In all professional industries- unless you are under a contract/ license and/or have exclusive permission from the copyright holder- it is illegal to draw or work with fan art regardless of how creative or nice it might look. Often for Educational Purposes it can be allowed under fair use which would be determined on a case to case basis depending on the circumstances if you were to ever be brought to court; for example if your college had you make up your own pokemon to demonstrate progress from start to finish of your illustration skills; you have more of a say with direction seeing it is an educational project instructed by your college. I had some re-branding projects I used in my portfolio because they were 3 month college project finals falling under educational purposes demonstrating my acquired skills from the class- which I have not had a problem with because of the nature it was used in. Sometimes it can help us grow. I was not including any actual company logos or personal information; I was generating all of the content myself. Now if I were to just go about re-branding companies because I felt like it- different story. Often universities and teachers feel you can learn a lot from what already exists- but use that as an inspiration to build your own foundation and concept.

I actually used to draw a lot of fan art back when I was in high school- however when I started college I was told to remove EVERYTHING- because it could very well cause me harm when I get out there in the real world. Often when I would go on interviews the interviewer would ask "Is this character original? Did you create them? Where are they from" etc to see if I understood the laws in place.

Not every company/ person has this experience though. Some people might have never had a problem with fan art in their portfolios- others might have. I cannot say these experience can and will apply to everyone. I deal a lot with the laws at my work and on the side when I freelance; so it is something I take very seriously. I do hope some of this can provide some helpful insight on the subject matter. I know the post is long; but I do hope it answered what you were asking with an explanation. You can always find more information online if you are interested in learning more.

Hope this helps!
Reply
:iconszelenbaum:
Szelenbaum Featured By Owner Jul 2, 2013
That's very interesting, thank you for the reply!

I'm glad that I found someone on DA who thoughts are similar to my own.
Reply
:icontylon:
Tylon Featured By Owner Jul 3, 2013  Professional Artist
You are most welcome! I am always happy to help.
Reply
:iconflintent:
FlintENT Featured By Owner Dec 2, 2012  Hobbyist Digital Artist
• How do you feel about users profiting from fan art?
I think it is a form of theft, unless they have written permission from the original makers. I personally will never sell fan art for profit. It is not fair for the original makers since they did all the work.

• Are you a fan artist? What is it about Fan art you enjoy?

I am a fan artist, but I am mostly focusing on original artwork more. I enjoy making fan art to draw my favorite characters in my own style. I tend to make someone else's characters in different situation than the original one. I like seeing new things within fan art, than just 100% replicas of something that has been done many times. For example, drawing Sonic the hedgehog in Green Hill Zone. That has been done many times and I would rather draw Sonic in a new scene than a familar one, unless I am making a tribute picture. For now, though, I am focusing more on original art and doing small fan art projects as I go.

• If you dislike fan art, please state your reasoning.

I do not hate fan art, but I do not care for it when people try to make money off of it when not authorized.

• How do you feel about staffing in communities such as DA who do
nothing to protect against the selling of fan art and profits?


I just hope nothing bad happens to where everyone suffers. Personally, I think they should be more strict on "commissions" and selling fan art prints on here; those should not be allowed.

Great article. I learned a few things here. I plan on being a professional animator and digital artist in the future.
Reply
:icongdbee:
GDBee Featured By Owner Mar 11, 2012
Excellent article. I'm been wavering on me doing fan art recently (though it's still in my gall) but I mostly stopped unless I'm drawing someone's own character under their permission. To tell you the truth I'm working on a tribute image to my favorite cartoon right now (Wakfu) for the sake of my own enjoyment, but I've promised to call it quits after that >.<
However, I don't agree with what ~osmanassem said, that "fan artists are not creative people". You'd have to be pretty imaginative to think of certain scenarios for characters. It's a contradiction to what he said at the end. He likes fan art if it's put into unique situations... isn't almost all fan art put into unique situations?
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