Art and earning money are very delicate things for discussion, especially when they are combined. When it comes to laws related to selling art, there can be many interpretations, and many times can come to confusion whether selling something, that you believe is an original work but it is also catalogued as fan art, is illegal or not. Therefore, is it illegal to sell fan art on Etsy?
Creating fan art, whether for commercial or personal use, requires consent from the copyright owner. This means that every character or trademark you use in your work must be priorly approved, otherwise you may be under trademark violation. However, creating fan art is allowed, while selling fanart on Etsy is considered illegal, and you could get into legal trouble due to intellectual property rights.
In this article, I will discuss fan art and how it is supposed to be used on Etsy. Fanart can be confusing in terms of using and selling. Therefore, I have provided some facts that will help you understand what is considered legal and illegal. Here, you will read about explanations of fan art and how you could get a permit to sell it at your etsy store. So, Is It Illegal To Sell Fan Art On Etsy? Let’s start by talking about Fan Art.
Table of Contents
- 1 What Is Fan Art?
- 2 What Are Commissions?
- 3 Why Is Selling Fan Art On Etsy Illegal?
- 4 What Is The ‘Fair Use Doctrine’?
- 4.1 Myth One – Owners Of Artistic Works Have The Same Opinion About Fan Art
- 4.2 Myth Two – Fair Use Doctrine Protects Fan Art
- 4.3 Myth Three – The Fair Use Doctrine Protects Those Who Only Use 10% Of The Copyrights
- 4.4 Myth Four – The Fair Use Doctrine Does Not Protect Those Who Sell Fan Art
- 4.5 Myth Five – The Fair Use Doctrine Is Easily Understood
- 4.6 The Truth – Relying On The Fair Use Doctrine Might Be Dangerous
- 5 How To Sell Fan Art Legally On Etsy
- 6 Should You Risk Accepting Art Commissions?
- 7 Final Words
- 8 Sources
What Is Fan Art?
Fanart is considered any design of a distinct type of artwork that includes characters or other symbols that are not created by the artist selling that particular piece of art. This refers to any product, i.e., both digital and physical products. Therefore, cartoon characters, comic books, novels, short stories, and so on could be fan art -as it is, after all, a depiction of a copyrighted character and you are not the original creator.
Fanart can also be a movie or a video game character used in a new environment or on a different medium. Even if an artist creates an absolute copy of an existing image, it would still be fan art.
You might see distinct characters on different products all the time, so it may seem strange to think that all of those artists took consent from the original owner to sell products. However, this is related to commissions; therefore, to understand how everything works with fan works, you must know what commissions are.
What Are Commissions?
A commission is when someone, like an art fan or a collector, finds an etsy shop they like, and asks them to create a piece of art according to particular terms. These particular terms include the design and the money that the artist will get once they complete the artwork.
This kind of art, or commissioned art, is not available for re-sale, meaning that it is unique and exists only as of the only sample. However, re-sale might be possible if the artist keeps their rights for the prints. The buyer requires that the artist uses a popular character or a certain trademark in the artwork when it comes to fan art.
However, this would not be legal action, even though there will be a unique piece of art in only one sample. The artist will still get money for it, meaning that that is a breach of copyright, so it is not exactly a personal use. If a certain company finds out about the inappropriate usage of a trademark or a popular character, it has the right to sue the artist, meaning that the artist might face legal action.
Why Is Selling Fan Art On Etsy Illegal?
When it comes to selling fan art commissions, it must be understood that firstly this action is illegal, and secondly, it hurts the sales of the licensed merchandise. What is illegal is that the person who uses it neither asks for permission nor pays the royalties. So, when you think about it, it is absolutely fair for this action to be illegal.
However, in their rules and rights, some artists involve a piece of permission that allows fans to create something without asking for a permit before the creation. Nonetheless, when this piece of permission is crossed, i.e., the characters or trademarks are used differently than formerly intended. It can lead to a serious issue.
For example, if a person uses the design or a cartoon character of some company or artist, but changes the words into something offensive, then the permission that the artist gives for the fans is violated.
Some artists or companies tend to write and post a whole system of rules to which the fans can use their characters or similar things. When something like this exists in writing and someone violates those rules, they should expect to face legal action. When you have something like that in written form, it is difficult to blame it on the confusion of copyrights or similar things.
Considering all of the information from above, it should be understandable why Etsy does consider selling fan art illegal. As a widely spread website with millions of sales in a year, they cannot allow illegal actions to be conducted through their pages. Even though sometimes people claim that those kinds of laws are totally unclear, it should be known that selling fan art on Etsy is certainly illegal.
However, many people can find the excuse by using the ‘Fair Use Doctrine.’ In other words, people use this doctrine on Etsy to justify their actions, making them legal. Nonetheless, Etsy has clearly explained the truth about Fair Use, although people sometimes tend to turn a blind eye to it.
What Is The ‘Fair Use Doctrine’?
The Fair Use Doctrine is actually a system of laws and rules in which the artist is freely allowed to use characters or trademarks of a certain artist or company. That means that this Fair Use Doctrine allows the usage of copyrights for particular purposes that probably will not affect the artist of the work in question. The particular purposes refer to education, scholarships, teaching, reporting, and so on.
Actually, the Fair Use Doctrine includes four purposes in total. However, many people tend to widen and misinterpret these four purposes and their coverage. Therefore, they tend to use some excuses connected to the Fair Use Doctrine and defend themselves by relating to their fan art and the doctrine in question.
The four purposes that I mentioned above are the following:
- The usage of characters and trademarks for educational or nonprofit purposes.
- The nature of the work that is copyrighted.
- The amount of the portion in which certain work is used compared to the whole.
- The effect that certain works may cause in relation to the market of value for the copyrighted work.
Even though these factors are clearly stated, many courts tend to disagree about the interpretation. That is the main reason why people tend to use work that is not originally theirs in their works of art, without asking for consent or a certain kind of permission.
However, Etsy stands beside this doctrine and does not encourage the selling of fan art. They have even resolved some myths about the Fair Use Doctrine, so the users will be aware of what is legal and what is illegal.
Myth One – Owners Of Artistic Works Have The Same Opinion About Fan Art
Some owners might be okay with their works being used in different designs and creations simply because they enjoy the free advertising. They believe that restricting their copyrights might have a counter effect on the success of their work. Therefore, they do not mind the illegal use.
However, other owners believe and experience a negative effect on their business, licensing profits, and brand name. Therefore, they consider this an infringement, and they are most likely to react when their works have been used illegally. This being said, it is likely that those who used art illegally might be sued and face legal action.
That is the reason why Etsy removes every product that is not according to their policies. According to Etsy, the attorney who might file a complaint may not tell the reasons behind the complaint. That is why they take this seriously, and they do not encourage the selling of fan art.
Myth Two – Fair Use Doctrine Protects Fan Art
Because the Fair Use Doctrine is complex and often misinterpreted, it is understandable that this myth might exist and continue to go on around. Therefore, many art owners have different opinions about fan art and what use might be good or bad for their brand. Furthermore, as I explained above, different courts might interpret the use of fan art in different ways, so it is never certain how things might develop, i.e., in whose favor.
Myth Three – The Fair Use Doctrine Protects Those Who Only Use 10% Of The Copyrights
There is no particular percentage to which someone might use fan art, and later, be protected by the doctrine. This will not be a good defense if the thing goes to court. Therefore, relying on percentage is a total myth, considering that no one guarantees that your users will be determined as legal.
Myth Four – The Fair Use Doctrine Does Not Protect Those Who Sell Fan Art
As previously mentioned, courts can interpret things differently, so they can often judge in favor of the user, not the original artist. Since courts mostly rely on the ‘the impact of the fan art to the market of value factor,’ it is possible that they will protect the person who sold fan art in the first place.
Myth Five – The Fair Use Doctrine Is Easily Understood
Quite the contrary, since many people can interpret the doctrine differently. This means that you will never be sure whether your usage belongs in the group that the Fair Use Doctrine protects.
The Truth – Relying On The Fair Use Doctrine Might Be Dangerous
Each artist should act responsibly and legally. This means that it is better to ask for copyrights correctly than to rely on something complex and difficult to interpret. The doctrine may provide you some defense. However, that is never a certain thing. Therefore action like this would be dangerous.
How To Sell Fan Art Legally On Etsy
If you do not want to rely on any doctrines, and you want to take the safe road, then there are certain things you need to do to achieve that.
- You can apply and ask for copyrights directly from the original owner. However, the chances that you will get the copyrights are relatively small if you are a small operator.
- List your art items for sale on a website such as Etsy, which will guarantee to collect royalties for the original art owners.
- You can also sell products in really small amounts that will keep you off the radar. Anything that goes small is less likely to be noticed. However, if your chosen website is Etsy, you might get discovered.
If you want to check if you are infringing copyright when selling on Etsy, this The Little Gnome Business’ video will help you in getting the answer.
Should You Risk Accepting Art Commissions?
The real answer would depend entirely on you. If you know that the product or a piece of artwork will not be extremely exposed, the art commission might work in your favor. In other words, you might earn yourself some good money as long as you keep it low, i.e., not producing the same products and exposing them on websites such as Etsy.
If you decide to accept an art commission but later try to do a business out of it, expect that legitimate websites like Etsy would take your products down. If your art does not comply with their terms of policy, your products will less likely appear on the website. You can consider doing other type of materials with your art rather than commissions. Maybe you can consider doing prints, which are easy to replicate, or stick to original artworks.
As you could see, selling fan art on Etsy is considered illegal, and there is a chance that your products might be taken down. This means that if they are regarded as an infringement and a breach of copyrights, they will not be allowed on a website such as Etsy since they take this kind of thing seriously.
- Fan Art and Fair Use: One Truth and Five Myths
- Is it Legal To Sell Fan Art? How To Sell Fan Art Legally
- Quora Forum: Selling Fan Art in Etsy