NOTE - This post is not legal advice and does not create an attorney-client relationship. Call (435) 200-5291 if you would like to schedule a trademark consultation with an attorney at Kennedy Art Law, P.C.
More than 130,000 people will converge on the San Diego Convention Center for Comic-Con International in July. Other conventions are held year-round across the United States. At each convention, fans and superfans typically dress up as their favorite characters ("cos-play"), meet their pop culture heroes, and shop for their favorite fan-art and collector’s items.
In case you are behind on the times, comic-conventions (aka “comic-cons") have become a popular place for fan artists to sell or distribute comic-related goods or art. However, fan artists may be unaware of copyright law issues that may be implicated by fan-created art (for our purposes here, “fan art”). While many copyright holders (like the companies who own Doctor Who, Zelda, and Game of Thrones) have come to see the value of fan art in promoting and strengthening the community supporting their brand and fan base, it does not mean that fan artists can do whatever they want with the original source. Copyright holders can sue fan artists for infringement, among other things. This may result in fines and garnishment of any profit you make from your work.
Learn about these basic copyright principles to understand how to protect yourself and profit from your work.
BASIC U.S. COPYRIGHT PRINCIPLES
Under the United States Copyright Act, copyright protection begins immediately with the creation of an original artistic work that is: (1) minimally creative and (2) “fixed in a tangible medium of expression.” To be fixed simply means the work must be in some kind of tangible form, such as a painting, photograph, book, film, sound recording, etc. Though a copyright exists upon creation, federal copyright registration will allow you to bring an effective lawsuit against someone infringing on your work. Federal registration may also entitle you to collect hefty fines from the infringer.
A copyright grants the owner of the artistic work the specific rights to: (1) reproduce the copyrighted work, (2) prepare derivative works, (3) distribute copies, (4) perform the copyrighted work publicly, and (5) display the copyrighted work publicly. A derivative work is simply another work that is based on the first work, such as, a sequel, prequel, or change in medium (movie based on a book).
TIPS TO KEEPING KOSHER
1. Get Written Permission. Fan art may be an infringement of the copyright holder’s right to prepare and license derivative works based on the original work. Fan art is also likely to be trademark infringement, where it uses logos or names, which causes confusion as to the source of the art. One of the easiest ways to protect yourself is to ask the copyright/trademark holder for written permission to use his or her characters, images, and/or names in your fan art. Consult an attorney experienced in entertainment law and intellectual property because each situation is different.
2. Fair Use. When there is an infringing work, some fan artists may be able to claim the “fair use” defense. To determine if an infringing work qualifies for fair use, courts do a case-by-case analysis balancing four different factors: (i) purpose and character of your use, (ii) nature of the copyrighted work, (iii) quality and quantity of material taken, and (iv) effect on the market. Secondary works that parody or criticize, or that are highly transformative, are more likely to be found to be fair use. Because “fair use” is so fact-specific, consult an attorney experienced in intellectual property on whether your fan art would qualify as fair use.
3. Commercial use may make you a target. There are not many court opinions over fan art. This is most likely because the fan artist complies with the cease and desist letter, or because the case settles long before trial. However, in 2008, J.K. Rowling successfully stopped The Harry Potter Lexicon, a fan made encyclopedia, from being printed and sold. J.K. Rowling allegedly did not mind The Lexicon as a free online encyclopedia. However, she had plans to sell an official authorized encyclopedia. The Lexicon would have been a direct commercial competitor in the market, so she understandably took action.
4. What to do if you receive a cease and desist letter… Be courteous and respectful to the copyright owner. Before taking action or signing any contracts, talk to an attorney to see if you are actually doing anything wrong. It may be wise for you to comply with reasonable requests to cease and desist. If you are friendly, you may be able to use this as an opportunity to negotiate an official license. A license would most likely allow you to keep producing your work, while sending a portion of the profits to the copyright holder. Being kind an understanding of copyright holders’ desire to protect their original works will help create a friendly environment between fan artists and copyright owners. These “good feelings” will likely lead to future collaborations and favorable licensing terms.
5. Additional tips. Here are some additional steps you can take to protect yourself.
- Do your research. Copyright holders may already have suggestions or guidelines about what kind of fan art they permit on their website. It is important to research and learn what is accepted, so as to not cross the line.
- State that you're "unofficial." Make it clear that your work is not officially related to the official work. For example, don’t claim to be selling your fan art as Disney. But you can most likely mention that you are an authorized vendor if you have the written permission to do so.
- Strive for non-commercial use. Offering your fan art for free doesn’t make it legal. However, it is probably less likely to threaten or upset a copyright holder because you won’t be directly competing in the marketplace for profit.
GET LEGAL HELP
Fan-art is a unique blend of business law and intellectual property law, and it becomes even more complicated if the work was commissioned and/or for sale. You need an entertainment lawyer who understands the intersection of creativity and commerce. If you have any questions about fair use in fan-art, Kennedy Art is here to help. Call 435-200-5291 to schedule a consultation. If you are interested in protecting your art, check out our flat-fee copyright and trademark registration services.
DISCLAIMER -- This article does not create any attorney-client relationship. It is offered for purely informational purposes and is not intended as legal advice.
 Warner Bros. Entertainment Inc. v. RDR Books, 575 F. Supp. 2d 513 (S.D. N.Y. 2008).