Between the girl whose necklace concept was stolen by Urban Outfitters recently, and Andrew’s announcement regarding his official stance on fan-created merchandise, I’ve noticed a lot of people are completely unaware of copyright law and what it does and does not dictate. Since I’ve never fully educated myself on that either, I took some time to actually read through relevant US copyright law and thought I might share what I learned with you guys, so you can be informed as well!
If you have ever created or enjoyed fan art, whether you are an artist or simply an enthusiast, please take a few minutes to read this.
I know you might be thinking, “Well I don’t draw fan art so this doesn’t affect me,” but some of the most vocal objections to Andrew’s official stance weren’t from artists at all, so if you’re going to get involved in or complain about something, you might as well know what you’re talking about, hey?
What is Intellectual Property?
Intellectual Property refers to “creations of the mind” that are treated as assets (real, tangible property) and protected by law. In the context of the visual, musical, performance, and literary arts, this includes (but is not limited to) things like novels, poetry, scripts, lyrics, drawings and paintings, sculptures, scores, choreography, and architecture, and is under the jurisdiction of copyright law.
What is Copyright?
Copyright is the exclusive right granted to a creator (artist, author, composer, etc) to control their original creations. Artistic works to not need to be registered or published in order to be protected. They are covered by copyright law the moment they exist in a fixed medium.
Exclusive Rights - This refers to the copying, distributing, and adapting of the original material.
- Copying - Also known as plagiarism. With regards to visual art, this includes both claiming credit for work you have not done and stuff like tracing, though the latter of which can also fall into “derivative works” territory, depending on the nature of any changes that are made in the process.
- Distributing - This means sharing, whether for free or for profit. In such cases that the content itself is distributed by the creator for free, such as a webcomic, posting actual images from the comic wherever you want isn’t a problem so long as you don’t claim credit for it. Selling it, however, would be against the law. Free distribution of works that must be paid for to acquire are also against the law; for example: scanning the pages of a print comic and posting them online, or donating to the art team and then putting their wallpapers on 4chan.
- Adapting - This is where “derivative works” and fan art really come in. To adapt an original work is to change it in some way that uses the concept of the original as the basis. Artists might adapt their own work by changing outfits, mediums, colors, or styles. Others may adapt it by making changes to traced images, editing existing work (sprites, screen caps, drawings), or making their own interpretations of the original artist’s concepts; aka: Fan Art.
Fixed Medium - Creative content can’t be protected unless it is made permanent in some way; visual arts must be rendered, music must be written or recorded, literature must be transcribed. Whether or not said work sees the light of day has no bearing on whether or not it is protected, so a work need not be published or even registered with the government to be protected.
How does this affect Fan Work?
Technically, this means fan art, fan music, and fan fictions are illegal in and of themselves because they are derivative works of protected content (edit: there’s actually some debate on that, apparently, but this is just my understanding of the words written in US copyright law and also besides the point).
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But before you get your panties all in a bunch, it’s pretty clear that no creative entity in their right mind gives a shit. It is virtually never enforced due to it generally being a positive reflection on the original work, as it is a common expression of adoration or attachment within a fanbase. It would also be extremely difficult if not impossible to do, and a tremendous waste of time, money, and legal resources. I think the only time I have ever heard of anyone caring about fanart is when Tim Buckley flipped his shit, but he’s an asshole and his comic sucks.
In short, the existence of fan work is a non-issue.
Selling fan work is an issue. It has been enforced in the past, and an artist has every right to take legal action against it if they so choose. When you decide to sell merchandise or take a commission that features another person’s original creations, you need to come to terms with the fact that what you’re doing is against the law, regardless of the direction your personal moral compass points. Just because the likelihood or plausibility of legal action being taken is low doesn’t make it any less wrong, and just because the practice is a widespread, integral part of the fan art community, or certain artists’ livelihoods depend on the income it generates, doesn’t mean you are somehow entitled to be able to do it, or that someone who asks you to stop is somehow in the wrong or being some kind of douchebag.
Especially if that person is an independent artist themselves.
Does this mean the original artist owns my fan work?
No. Unless you have directly edited existing artwork, the art itself is yours. However, as much as the original artist cannot claim and distribute it themselves, you don’t have the right to distribute it either unless you have permission.
What about fan characters or inspired works?
Those are actually completely fair game! To use Homestuck as an example, if you have made a fan kid or fan troll, or invented your own Land of ___ and ___, or composed a piece of music that was inspired by the comic, but doesn’t actually use anything Andrew or his creative staff has made, guess what? Not protected! That’s because styles and concepts can’t be automatically copyrighted, and many cases, can’t be copyrighted at all.
However, if you draw your (or someone else’s) fan character in the same picture as an existing character, you no longer have the right to distribute it because it contains protected content.
Can’t I hide behind the “fair use” clause?
Since revising the rules on MSPAF and posting my initial tumblr entry about Andrew’s announcement, I’ve seen a few comments here and on other sites, such as 4chan, stating that you can just call a piece of fan work a parody or satire and magically be absolved from legal persecution.
Parody and satire are only protected by fair use if the nature of the derivative work meets certain standards with regards to criticism, news reporting, teaching, scholarship, or research, as well as criteria based on the character of the derivative work, the purpose (commercial or nonprofit), and its effect on the potential market or value of the original, copyrighted work.
Isn’t everything on the internet public domain?
US Copyright Law dictates that copyrighted works are protected until 70 years after the original artist’s death. Even in cases of anonymous, pseudonymous, or joint works, copyright protection lasts up to 95 years from publication (or 120 years after creation) before the material becomes public domain.
Where can I read about US copyright law myself?
The entirety of US copyright law and its related articles are available to read and download here! It’s 350 pages long, but most of the relevant stuff can be found within the first 20 pages of the first chapter (you can skip the preface entirely, it just documents all the statutory enactments which is basically all the legal stuff that went into the creation of the content of the document).
I don’t live in the US, do these laws still apply to me?
While copyright laws differ from country to country, US law is only irrelevant if the activity you engage in happens solely within your country of residence. Work posted on such sites as DeviantArt is subject to US copyright law because it’s an American website, with servers based in the US. Regardless of where you’re from, though, if the creator of an original work has asked people to stop selling merchandise based of it without their permission, respecting their wishes is still the right and respectful thing to do.
On a personal note, I am really, truly taken aback by some of the responses Andrew’s announcement has garnered. I know there was a fair bit of misunderstanding earlier, some of which persists because people either don’t understand that his request is in no way, shape, or form a ban on fan art and the selling thereof, or haven’t read his formspring explanation, and maybe some of that is my fault for not being thorough enough in my initial explanation. BUT, some of you have been borderline malicious if not blatantly spiteful about it. I am seriously shocked and severely disappointed, not by those who were saddened by the news, or genuinely didn’t know about copyright law, or even thoughtfully questioned the move, but by those who had the audacity to insult him over this decision.
I’m not judging anyone here. I’ve done commissions featuring other creators’ IP without permission (Avatar, Hellboy), and will likely continue to do it as the opportunities arise, but I do so while being fully aware of what it is I am doing and what the implications are. I’m not delusional. I also wouldn’t hesitate to take any of it down if I were asked to by the owners or their representatives, but that’s just me. Your moral stance on this issue is entirely your own, and you are as free as the next person to do as you wish in accordance to what you personally believe is ok to do, but you don’t have to be a dick about it.