The line between Copyright and Fan Art?

[nightglow]

I am a big fan of fan art in general. I think it is great to see people's take on character stories or an artform, if it is visual, of a character. However I was thinking recently where the line is actually at between something someone made like a drawing very rounded Blathers for example vs well, Blathers himself. Blather's identity. Or someone making a 3d printed Bob with their own blueprint plans. Or someone making an embroidered Kiki with their own blueprint plans. Ect. I have seen sites such as Redbubble* or Etsy where fan art is made and sold without a license for the characters and I know copyright laws are varied a little by country. To me, the topic seems a little confusing.
Is this something similar to the effect that the physical medial records of a doctor office belongs to the doctor's office but the contents of the medical records belong to the patient?
What are your personal thoughts on fan art and copyright? What are your thoughts on people selling their art or fan fiction based on characters that was designed by someone else?

nvm Redbubble I guess does do official licensing?

 

[Mistreil]

This isn't entirely comprehensive, but it's a pretty rough summary of my understanding on the matter.
I'm sorry it got pretty long -- I've been adjacent to fanmerch spaces and researched it a lot previously.

Talking on the legality of these things is sort of complicated. Different companies have different stances on the matter for various legal reasons.

Some companies allow fan merchandise to be made within reason, while others don't allow it at all. As an example, I believe Disney is notorious for disallowing it and sending takedown requests, while Mihoyo (Genshin Impact, etc.) and Supergiant Games (Hades, etc.) allow it but have their own terms.

I think the strict "no"s are typically towards using models/art/assets/etc. in the merchandise (e.g. directly printing official art and selling that, using the property's logo, using a 3d model from the game and printing it). It's pretty important for artists to make it clear that their merchandise is unofficial, not officially associated with the game/show/etc., not using any official content, etc. Mass production is usually also forbidden, and print-on-demand services like redbubble cross this line (but fanart doesn't get taken down until it's reported). Redbubble itself also has a list of "allowed" properties, so fan merchandise of that is fine.

A lot of companies have a "turn a blind eye" sort of policy -- they won't take action unless it's brought to their attention, in which case they have to act in order to protect their IP and whatnot. I think takedown requests usually happen in this case because 1) someone reports it to the company, or 2) the company sees it (e.g. because you used official tags on social media with a link to where you're selling it). Some companies also have policies of "fan merchandise is fine as long as it's not competing with official merchandise" (e.g. if there's an official rug or something, making a similar rug wouldn't be allowed). Fan art itself is usually fine, but anything that earns money can become a legal issue*. Some artists will price things just to cover the cost of production, so they don't make a large profit from it.

* Commissioned fanart (e.g. paying someone to draw an official character) is usually okay for some IPs, but some artists will refuse to accept those out of caution. It might not be worth the risk. There's also fanart that's not okay for various reasons, like inappropriate content.

My personal opinion on the matter is pretty much along the lines of "it's fine for artists to make merchandise of properties they don't have licenses for as long as they don't mass produce it and it doesn't use official assets"! I generally view fanart as fine, including commissioned fanart: it's a labour of love most of the time, and doesn't negatively affect the IP. Usually it keeps people interested in the IP and helps promote it!

One small note I feel I have to make: "people selling their art or fan fiction based on characters that was designed by someone else" might be a bit too broad. It's not okay to sell art based off of an individual's personal work/characters/etc. if it's not already a commercialized product. If the creator isn't profiting from it, then others shouldn't be either. For example: things like selling merchandise for an artist's webcomic when the artist hasn't explicitly allowed it is wrong; fanart is still fine in this case and tends to be very welcome, but making a profit from it is not. Individuals and small businesses are very different from larger companies.

 

[Corrie]

I think technically it's not cool, since they're making money off someone else's characters but I don't care lol. I love fan art and buying fanmade merch and I'll continue to buy in the future!

 

[daringred_]

legally, i suspect it's a little complicated.

personally, i think we should all strive to 'rip off' billion dollar corporations (disney, nintendo) that make more than enough money. i'd rather buy an LGBT+ disney pin from an independent artist, for example, than an officially licensed one from a company that can't even be bothered to represent me in any of their media yet still tries to choke money out of me every pride month as if they do. in nintendo's case, i've seen bootleg/fanmade villager plushies that often look better than the officially licensed ones and have a wider variety to boot. in some cases, official merch might only be available overseas and cost exorbitant fees as a result, in which case independent artists and sellers are a much better option, if not the only one. the creators of the franchise in interest might not even have/sell products that fit your interests -- i.e. i like enamel pins, but nintendo doesn't really sell m/any. sometimes fanart looks better than official stuff.

in the end, with the amount of money it makes, disney, for example, isn't missing out on anything when etsy sellers sell enamel pins or prints they designed/drew themselves to fans and, frankly, i'd rather support those independent artists than disney themselves anyway lmao.

 

[Millysaurusrexjr]

Be careful with sites like Etsy. IP art is actually not allowed on Etsy - there's just a lot of shops that get away with it currently. If and/or when Etsy does discover you selling AC merchandise, they can cancel your Etsy shop and any future Etsy shops of yours just like that, and their customer service won't even bother with you.
I know this not because I've experienced it but because I follow the Etsy subreddit and see posts like this over and over and over.

Can you get away with selling AC art in general? Most likely, though results may depend on the platform. Is it legal? I'm not a lawyer but it's probably definitely not legal. I personally love buying non-official art and I'm sure it's a goldmine.

 

[nightglow]

On a related note, even though it is different because it isn't about fan art, I found these cases 1 and 2 bizarre to me. Basically these are court cases that had happened regarding art. Whether it was photography vs painting vs statue, or an added note in a musical beat.
Maybe I just don't get it. If having a similarity counts as infringement, then how can anyone make anything? I also don't understand how or why someone can trademark a color for a candy wrapper here. I know trademarks and copyrights are different but they seem very similar to me. And it seems in the US there is a difference, though small, between copyright and being registered copyright.
Maybe I am too simple minded. The fan art issue seems more clear to me honestly because that is an identity rather than a similarity So I can see how it could be an issue to the owner of character identity. There are books and video games that exist out there that are very similar to each other. Croc and Yoshi are about as similar and different to each other to as these cases but I don't think Nintendo pursued Sony in the 90s over it. And the game play of Croc has been noted to be nothing new and seem as too similar to Yoshi and Mario games. Jumping, butt mashing, and tail spinning, rescuing, and 3d platforming.
Kinda makes me wonder if they would pursue today if Croc made a comeback and became popular..
I am probably overthinking all of this, but curiosity has gotten the better of me.

In a general sense, if you happen to infringe on something you usually get a letter or notice before being taken to court right? I can't imagine court cases are all that profitable unless the thing in question is making a ton of money which at that point you are probably bound to be targeted even if you weren't infringing on anything.

 

[Belle T]

On a related note, even though it is different because it isn't about fan art, I found these cases 1 and 2 bizarre to me. Basically these are court cases that had happened regarding art. Whether it was photography vs painting vs statue, or an added note in a musical beat.
Maybe I just don't get it. If having a similarity counts as infringement, then how can anyone make anything? I also don't understand how or why someone can trademark a color for a candy wrapper here. I know trademarks and copyrights are different but they seem very similar to me. And it seems in the US there is a difference, though small, between copyright and being registered copyright.
Maybe I am too simple minded. The fan art issue seems more clear to me honestly because that is an identity rather than a similarity So I can see how it could be an issue to the owner of character identity. There are books and video games that exist out there that are very similar to each other. Croc and Yoshi are about as similar and different to each other to as these cases but I don't think Nintendo pursued Sony in the 90s over it. And the game play of Croc has been noted to be nothing new and seem as too similar to Yoshi and Mario games. Jumping, butt mashing, and tail spinning, rescuing, and 3d platforming.
Kinda makes me wonder if they would pursue today if Croc made a comeback and became popular..
I am probably overthinking all of this, but curiosity has gotten the better of me.

In a general sense, if you happen to infringe on something you usually get a letter or notice before being taken to court right? I can't imagine court cases are all that profitable unless the thing in question is making a ton of money which at that point you are probably bound to be targeted even if you weren't infringing on anything.

I think the main problem is that you're looking at these articles with the mindset that these suits are being carried out over a superficial or surface level similarity, which--while not unheard of (see, for example, the recent trademark trolling of Take-Two Interactive forcing Hazelight Studios to abandon their trademark for the game It Takes Two)--would be a frivolous and legally questionable dispute. Not to mention, a waste of everyone's time. But the links you've provided (at least those that I can see) are much more grey than that.

The Hershey one is full of broken links, so I can't really see that one, but that is a trademark dispute, not a copyright dispute, which is not the same thing. Trademark is a symbol associated with a property, rather than the property itself. The golden arches on the McDonald's logo are the obvious example. The big, red M. on Mario's hat, the leaf in the Animal Crossing logo, the typeface used in the Disney font. Anything that connects a work visually with its brand. Again, many of the links on that article are broken, so I can't say whether or not they'd have a case, but it's not just a matter of something being similar. It's whether or not that something is similar enough to cause confusion. The orange packaging of Reese's candies are iconic to their brand and if Mars was using a similar color, intentionally or otherwise, in such a way that it would lead consumers to confuse their property for Hershey's, then that it is a case of infringement. It's essentially how bootleg and knock-off merchandise operate. They use similar or identical typefaces or other artistic elements to confuse laypersons into buying something they believe is from the official company when it is in fact not.

The one with Prince and a few of the ones in the last article are disputed on the grounds of rather the pieces are transformative enough to be considered fair use, which has been a grey area of the law for a long time. Most of these are not just artistic pieces inspired by other pieces, but edited versions of copyrighted images. One of them (the Freddie Mercury/David Bowie suit against Vanilla Ice) even straight up uses samples from the original recordings, which is a bit different from how Croc might bare some resemblance to Yoshi.

So these cases aren't about two people creating art that happens to have similar properties, though there have been a number of suits which have been predicated on that. Wikipedia has a long, though not exhaustive, list of songs that have been subject to these kinds of cases. Regardless of their legal merit, it is questionable how many of these actually should have legal ground, from a moral standpoint. But that is the unfortunate landscape of copyright law: There is no formula that determines whether or not something is infringing; it's based largely on human judgment, which can often be flawed or swayed by external pressures.

As for the last question, if you are found to be infringing, a company may submit a DMCA/cease and desist notice, warning you to stop before legal action becomes necessary. But as far as I'm aware, this is more of a courtesy than a requirement.

 

[nightglow]

I think the main problem is that you're looking at these articles with the mindset that these suits are being carried out over a superficial or surface level similarity, which--while not unheard of (see, for example, the recent trademark trolling of Take-Two Interactive forcing Hazelight Studios to abandon their trademark for the game It Takes Two)--would be a frivolous and legally questionable dispute. Not to mention, a waste of everyone's time. But the links you've provided (at least those that I can see) are much more grey than that.

The Hershey one is full of broken links, so I can't really see that one, but that is a trademark dispute, not a copyright dispute, which is not the same thing. Trademark is a symbol associated with a property, rather than the property itself. The golden arches on the McDonald's logo are the obvious example. The big, red M. on Mario's hat, the leaf in the Animal Crossing logo, the typeface used in the Disney font. Anything that connects a work visually with its brand. Again, many of the links on that article are broken, so I can't say whether or not they'd have a case, but it's not just a matter of something being similar. It's whether or not that something is similar enough to cause confusion. The orange packaging of Reese's candies are iconic to their brand and if Mars was using a similar color, intentionally or otherwise, in such a way that it would lead consumers to confuse their property for Hershey's, then that it is a case of infringement. It's essentially how bootleg and knock-off merchandise operate. They use similar or identical typefaces or other artistic elements to confuse laypersons into buying something they believe is from the official company when it is in fact not.

The one with Prince and a few of the ones in the last article are disputed on the grounds of rather the pieces are transformative enough to be considered fair use, which has been a grey area of the law for a long time. Most of these are not just artistic pieces inspired by other pieces, but edited versions of copyrighted images. One of them (the Freddie Mercury/David Bowie suit against Vanilla Ice) even straight up uses samples from the original recordings, which is a bit different from how Croc might bare some resemblance to Yoshi.

So these cases aren't about two people creating art that happens to have similar properties, though there have been a number of suits which have been predicated on that. Wikipedia has a long, though not exhaustive, list of songs that have been subject to these kinds of cases. Regardless of their legal merit, it is questionable how many of these actually should have legal ground, from a moral standpoint. But that is the unfortunate landscape of copyright law: There is no formula that determines whether or not something is infringing; it's based largely on human judgment, which can often be flawed or swayed by external pressures.

As for the last question, if you are found to be infringing, a company may submit a DMCA/cease and desist notice, warning you to stop before legal action becomes necessary. But as far as I'm aware, this is more of a courtesy than a requirement.

Thank you. I know I am probably over thinking it but I do wish there was black and white lines/ formula. I know the world doesn't work that way though.