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Advice: Fanart

A question/advice query for you all
I'm sure this is an age-old argument, but I'd like to bring it up again because I always appreciate advice and information on what I do.

The topic being Selling Fanart.

People do it all the time, at conventions, online - they draw characters from computer games and shows, often in their own style, and sell them on for money.


Now, my question is, is this practise legal?
In my own set of commission rules, I say that I cannot draw copyrighted characters (though, that should probably be "trademarked characters"), but truth be told I would actually love to sometimes.

Is it a question of legality, or is it one of ethics?
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Comments

( 112 comments — Leave a comment )
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sigilgoat
Nov. 14th, 2011 08:21 pm (UTC)
Mod Request~
If you could edit your entry to be titled something like "Advice:Fanart" or something to that extent, that would be great!

Thank you for asking this question, I hope to hear some good discussion!
purpule
Nov. 14th, 2011 08:29 pm (UTC)
Re: Mod Request~
Done and done :D
thornwolf
Nov. 14th, 2011 08:29 pm (UTC)
To be honest I've wondered about this for years myself. I went to comic con and there are a LOT of fan works being sold there. I suppose it depends on the company involved. Most won't pursue it since it doesn't directly affect their sales. However, Disney, for example, jealously guards their characters (even so much as sending cease and desist notices to nurseries who paint their characters on wall murals) whereas Hasbro seems to encourage fan works. As they're not directly conflicting with items they sell, I assume this is why some companies don't mind much. It would be different if you were mass producing, say, My Little Pony merchandise that directly conflicts with items Hasbro themselves sells offering it as "official" anything rather than fan works.
shukivengeance
Nov. 14th, 2011 08:29 pm (UTC)
It is indeed an infringement of copyright and there are conventions which have banned the sale of fan art. Basically, the problem lies with the artist making a profit off the intellectual property which does not belong to them.

Action being taken on this isn't limited to anime either. DC comics and Disney among others are well known to send cease and desist letters.

Privately, it's very difficult to enforce this though. An artist could take all the fan art commissions in the world and if they weren't publicly posted nobody would know. I imagine this is why anime cons have been targeted.

Edited at 2011-11-14 08:32 pm (UTC)
otherscape
Nov. 14th, 2011 09:25 pm (UTC)
That's odd, because there are a lot of DC comics and Disney commissions over on DA, and a few artists who do commissions of DA characters don't seem to get any cease and desist orders. Did they just give up or something?
(no subject) - celestinaketzia - Nov. 14th, 2011 09:27 pm (UTC) - Expand
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breakspire
Nov. 14th, 2011 08:48 pm (UTC)
People are making tons of money off of My Little Pony fanart these days. It seems like the general consensus there is that Hasbaro doesn't mind it.

My ethical problem with fanart is that you're making money off of an already established popular thing. For example: there's been a ton of plushies on ebay recently of MLP characters, some of the well made ones of popular characters go for thousands of dollars. I imagine that if the same seller were to make the same quality plushie of a regular animal it wouldn't go for as much money.

There's already a massive fanbase of people who like MLP, so there's an instant customer base. You don't have to make some character up from scratch and build it's popularity up. That's been done for you. All you have to do is re-create the character design.

Don't get me wrong, there are some creative interpretations and brilliantly crafted fanart that I love. I would just feel uncomfortable doing it myself for a profit.
mariechan
Nov. 14th, 2011 09:25 pm (UTC)
What if it's a fan pony, by the way? I'm just a bit curious.

As far as the auctions go I think it's different than someone directly asking you to make it for them. In that case I think they are more interested in buying your services if they went directly to you.
(no subject) - copper_curls - Nov. 15th, 2011 12:54 am (UTC) - Expand
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hellebore
Nov. 14th, 2011 08:55 pm (UTC)
I personally don't feel comfortable doing it at all. I'd be pissed if someone made money off of my characters without my consent!
anarchicq
Nov. 14th, 2011 11:01 pm (UTC)
THIS!
This this this so much this!
I actually have it in my TOS that I will NOT do fan art. I will do RPG and LARP characters though. Yes, I will draw your generation 8 Malkavian. Happily!
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aerospiritual
Nov. 14th, 2011 09:07 pm (UTC)
it really, really depends on the company/studio.

I know that Hasbro doesn't mind in the least, that people are creating and selling MLP fanart, and from what I have heard, even encourage it. but other studios, like Disney, would have a much different stance on it.

what would be really neat, is if there was a directory or something set up that listed the companies who don't mind people selling fan art and the ones that do.
purpule
Nov. 14th, 2011 09:23 pm (UTC)
I have heard that Hasbro seems almost encouraging of MLP fanart - but I keep hearing that from second hand sources, so I don't know where the official line is on that. I would definitely love a list! If some companies really didn't mind, then I'd be all for it, but because it's technically illegal It's an area I'm afraid to get into.
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otherscape
Nov. 14th, 2011 09:16 pm (UTC)
It's technically illegal, but many creators/companies don't really care so long as you don't sell a massive amount of prints or merchandise. I think at anime conventions you can only sell a certain amount of fanart prints. Individual commissions they don't really care about either. Of course there are exceptions like Disney. I'm not sure about other companies such as Dreamworks or Pixar. I'd love to know what DC and Marvel's stance on this is. I heard a while ago that Marvel actually encourages this practice, though I can't remember where I heard this from.

It also depends on what site you're selling them out of. I know DA doesn't allow prints of trademarked characters to be sold, but I don't know about FA.
onesteptwo
Nov. 15th, 2011 01:48 am (UTC)
Disney owns Pixar ... I'd imagine Pixar characters are off limit now, too.
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purpule
Nov. 14th, 2011 09:25 pm (UTC)
I feel uncomfortable doing it only because I don't like the idea of stepping on anyone's toes. If some companies are cool with it or have an active ignoring it view, I think I'd be a lot more likely to do it.
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Agreed. - dustmeat - Nov. 21st, 2011 05:24 pm (UTC) - Expand
mariechan
Nov. 14th, 2011 09:26 pm (UTC)
IMO: I think more people prefer to commission their own characters rather than fan characters. Most commissions I saw with fan art involved fan characters which I think is an even more grey area because who else would this person go to to draw their chars? I actually haven't seen a lot of commissions of canon chars unless they are interacting with someone's fan character. So I dunno.
celestinaketzia
Nov. 14th, 2011 09:30 pm (UTC)
It seems to be more common in furry to have OCs. I've yet to find an artist whom is willing to do my human OC interacting with a videogame char.
(no subject) - mariechan - Nov. 14th, 2011 09:34 pm (UTC) - Expand
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fatkraken
Nov. 14th, 2011 09:37 pm (UTC)
Yes it is illegal

Is it immoral though?

Personally I won't do it (I've actually turned down significant amounts of work because of copyright).

I apply the Golden Rule: do unto others as you would have them do to you. I would not want anyone making money from a character of mine without asking (and receiving) permission first. It's basically as simple as that for me.

I know "corporate" characters are rather different from "creator owned" characters, but the rule still stands for me. Then of course there's the difficulty of drawing that line: many properties which are owned by a corporation still give the creatives a lot of control and a lot of personal input, especially with "Auteur" showrunners, the recent MLP being a good example.

This only applies to making money BTW. I've made lots of fan works as gifts and personal projects, but I will never make one with the intent of selling it to the general public.
vellacraptor
Nov. 14th, 2011 09:38 pm (UTC)
It IS legal only if considered "parody" or "homage" so it can bypass copyright laws.

But it's only ever a problem when the company takes action against it. Most don't and I have yet to see one that has.

Well, that's not entirely true, I know Homestuck tells it's fans not to outright sell anything (trading and such is okay?), and they've stuck to it. :3
obsidianwolfess
Nov. 14th, 2011 10:01 pm (UTC)
It's illegal, and I think it's terrible that people use popularity as grounds to say it's A-OK to sell fan art. Sorry, it's not. :\
clockmagic
Nov. 14th, 2011 10:30 pm (UTC)
This.
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shukivengeance
Nov. 14th, 2011 10:19 pm (UTC)
Fully agree with this. "Everyone does it" or "*company name* doesn't seem to mind!" doesn't invalidate the law.
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alopex
Nov. 14th, 2011 11:05 pm (UTC)
I've always been unsure about this since while technically illegal many professional manga illustrators start out with doujinshi. In regards to MLP it seems that for the moment Hasbro don't care but they haven't stated this so it's not something people should just assume. I think people are taking Lauren Fausts interest in the fandom as permission. While she created the current version of my little pony I would assume they are still copyrighted/trademarked to Hasbro.
fatkraken
Nov. 14th, 2011 11:09 pm (UTC)
Doujin is a Japanese phenomenon, and Japan is an entirely different kettle of fish with regards to their attitude to copyright. Don't attempt to transplant any lessons from the Japanese system to the rest of the world, it doesn't work that way.
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