The world of fan-made art is a weird and wonderful one. Some of the works are truly fantastic, some of them…aren’t. The body of artistic works surrounding a single story or series can be so vast as to boggle the mind. In the communities that make these sort of works, there is a lot of misinformation as to what is legal and what can get an artist into hot water.
The truth is that the vast majority of these works likely infringe on the intellectual property (IP) of the artists owning the work they are based on. However, due to their nature and the realities of prosecuting such works, how businesses approach these works is a bit of a sticky situation. There is no one standard approach amongst business. The only thing that’s standard when dealing with fan-made art is the migraine it gives IP owners when deciding how to actually approach it.
The IP issues raised by fan-made art generally deal with copyright and trademark protection.
A valid copyright provides a number of exclusive rights to its owner. These rights include the exclusive ability to reproduce, distribute, and—most importantly for fan-made works—prepare derivative works. Derivative works are works based on a copyrighted work.
Even individual characters can receive copyright protection—the Batmobile being a recent example. The character must generally have physical and conceptual qualities—be more than just a drawing or idea. For example, many characters in written books are not considered protected by copyright. The character must be have consistent traits so as to be recognizable as the same character whenever it appears. Finally, the character must be “especially distinctive” and contain “some unique elements of expression.”
With most fan-made works being based on an existing copyrighted work or character, fan art typically infringes on the exclusive right to create derivative works. However, there is the possibility of a defense of fair use.
Fair use is the source of one of the most common misperceptions in fan-made works—that fan art is almost always protected by fair use. Fair use is an extremely complicated, fact-specific defense. It balances four separate factors including: the purpose and character of the use, the nature of the copyrighted work, how much was taken and how important the bit that was taken is, and the effect of the use on the potential market.
The misperception is that all for-profit uses are not fair use, all non-commercial uses are, taking only a little of the work means you’re in the clear—none of this is true. Frankly, any blanket statement about fair use is unlikely to be accurate. The factors are all taken into account and each case is different.
Fan art can also infringe on the trademarks of a company. However, disputes of this nature involving fan-made works are much less common than their copyright counterparts. A common example of fan art that could give rise to a trademark issue is art using the “Mickey Ears” trademark owned by Disney.
Trademarks protect against unauthorized use of a mark in a manner that could confuse consumers as to origin or sponsorship. Once successfully registered, a mark receives protection. However, this protection can be lost or diminished in a number of ways—including abandonment.
A mark is presumed abandoned when it isn’t used in the market for three years, use is discontinued without intent to resume use, it is licensed without quality control protections (called naked licensing), or—most importantly when it comes to fan art—the owner does not take sufficient action against known infringement.
Where the owner of a trademark knows of infringement, but fails to take action, the distinctiveness of the mark is reduced. The strength of a mark is directly proportional to how distinctive it is. This means that failing to pursue infringers can reduce a mark’s strength and ultimately leave the mark without protective when the public stops associating the mark with its owner. What’s more, delaying a suit for too long after you know about infringement can undercut any infringement lawsuit you might bring against that party.
This doesn’t mean that a trademark owner has to sue every fan-artist that could be infringing their mark or lose all protection. However, it does mean that a practice of turning a blind eye when fans use their marks—especially in ways that might tarnish their brand—can weaken that mark’s protection when they need it in the future.
How Companies Deal With Fan Art
This creates a difficult situation for businesses. Fan art, even monetized, is incredibly widespread. In a way, it’s a testament to the quality of your product that it is so beloved that people want to use it for their own art. It can even serve to expand your brand, almost like free marketing. Some businesses, like the video game company Blizzard, even actively assist fans in making fan websites to share art. Some artists, on the other hand, come down extremely hard on fan websites. Anne Rice is well known for cracking down hard on websites dedicated to fan created works based on her books.
Fan fiction is another incredibly widespread phenomenon, using an author’s characters and universe to write your own fictional story. JK Rowling has sued to stop the publication of a fan written Harry Potter lexicon. She won this suit, although an altered version of the book was later published as an “Unauthorized Guide to Harry Potter Fiction.” JK Rowling and Warner Brothers have also threatened a lawsuit against an author who wrote an entire series of novels surrounding Harry Potter’s son for his wife and children—then subsequently posted the novels on the internet.
The situation is complicated—failing to pursue known infringers can weaken your IP and allowing others to sell products featuring your IP cuts into your market. However, going after your fans almost always results in backlash from what is likely the community most dedicated to buying your products and merchandise.
By itself, fan art is usually fairly harmless to your product. This is especially true where fans agree not to sell or profit from their fan art and make it clear they have no actual connection to the proper IP holders. What’s more, fan art infringers don’t tend to have the money to pay damages.
Often a business’ best bet is to send a letter saying that they know of the actions of the fan, do not approve of the actions, but do not consider it economically feasible to take legal action at this time. However, make it clear that a lawsuit will be brought if this changes. This warning is often enough to protect against loss of IP. Keep in mind however, delaying a trademark lawsuit for too long after you learn of it may prevent a successful lawsuit when the time comes. The statute of limitations also restricts copyright infringement lawsuits to three years from the most recent discovery of infringement. This is less of an issue if the infringement is ongoing but may limit damages to a three year period. If infringement is particularly egregious, it is worth consulting a lawyer to see how to proceed.
So What If You’re Making Fan Art?
Receiving a cease and desist letter from a company or artist who owns IP that you are a passionate fan of can be a disheartening and terrifying experience. The information out there can mislead an artist into believing they are totally safe from a lawsuit—either because of fair use or the blind eye some companies turn to fan-made art.
It’s nearly impossible to say that any group of things are all fair use. It’s such a fact-specific determination that it’s hard to be truly sure until the facts are before a court. A consultation with a lawyer is likely to be extremely helpful, an informed professional opinion can useful in deciding how to proceed.
However, retaining a lawyer can be too expensive for a struggling artist. If your fan art is non-commercial in nature, the Organization for Transformative Works is a fantastic resource for artists under the gun of a potential infringement lawsuit. This being said, they are unlikely to represent you if the case goes to court. Even if you are selling your fan art, many organizations supporting free speech may be willing to provide a brief consultation to help you figure out where you stand.
Often these cases don’t have to come to an expensive lawsuit because, honestly, neither party truly wants that. Some groups will back off if they get a response from a lawyer, others will be willing to negotiate a license that you can afford, still others (cough Disney cough) will grind you into dust under their mighty legal thumb for your audacity in using their characters.
It’s important to understand that while fan art may be tacitly condoned by some companies, it is still usually illegal infringement. If somebody makes fan art, they are risking a lawsuit—period. That being said, making these works for your own pleasure and not distributing them in any way makes the chance of successful action against you very close to zero. If you want to make sure that you’re completely safe though, the only really option is to ask and receive permission from the companies who own your favorite characters.
Authored by Jonathan Lurie, LegalMatch Legal Writer and Attorney at Law