Fan art, conventions, and copyright law?

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  • I love comic and fan conventions, and I personally think that artists should be allowed to sell fan art, but it's illegal. So-


    1) If a commissioner commissions fan art, who is breaking the law? The Artist, the commissioner, or both?


    2) If selling fan art is illegal, why do conventions openly allow (and even encourage) artist to sell fan art at all? Is the Convention working as a black market?

  • Hello Fan Art Fan:

    I would not necessarily say that fan art is automatically a copyright infringement.  One could argue fair use (parody, criticism, transformation - using the work in a new way, etc). 

    If I had more details, what, where and when and if $$ is involved, we could run through a fair use examination and maybe it will give us a clue (though not legal advice).

    Also, if the work is commissioned, the rights probably go to the commissioner because are paying for the art.  However, a rights holder could sue anyone he wants if he thinks he can win. 

    Tell me more about the conventions issue.





  • Hi, Carrie! I'm going to poke my head in because this is an issue that I've personally paid a certain amount of attention to.

    It would be the opinion of the Organization for Transformative Works that unpaid fanart is generally fair use, and I'd generally agree with them. Issues that could affect that analysis with regards to these questions:

    • Commissions and sales start shifting the "purpose" (first) factor due to changing the use to a more commercial/for-profit one.
    • Prints of fantart and fanart businesses become more systematic / iterative / ongoing and have a greater potential to affect the market (if any exists), than one-off commissions, shifting the "purpose" and "effect" (first and fourth) factors.
    • Some works come closer to affecting existing markets (such as for calenders or posters for a movie or video-game series) than others (such as for porn of characters from a non-romance novel), again potentially shifting the "effect" (fourth) factor.

    There may additionally be trademark issues that are beyond the scope of this forum, but those aren't copyright issues and thus generally wouldn't affect fair use.

    This is stabbing at the thorny heart of derivative works vs transformative uses with the added complication of a limited commercial context. I don't know that the courts have given us enough guidance to form an answer on these questions; I'd love to hear more input. I've seen online fan art stores shut down over legal questions, but I've also got a wall full of fan art I bought from the artist alley at ALA conferences!

    As for conventions, it's an interesting question. The convention might be renting booth space to an artist, encouraging them to sell fan art there, and knowing that they're doing so, but with the complex legal issues surrounding fan art, it's not necessarily obvious that what they're encouraging (and profiting from) is illegal. And if they did know that it was illegal, it's not clear to what degree that would violate any other law, regulation, or contract.

    Thus, some partial answers:

    1. If one person pays another to break the law, I would suspect that there is the potential for liability for both of them—someone could certainly make that argument, even if I'm not sure how it would go over in court—although as a practical matter it's the artist who's likely to be easily identifiable and most provably liable. That's if the act is illegal, though, which it very well might not be.
    2. I am not aware of any legal definition of the phrase "black market." They might be in violation of their business license or contract with the venue owner or any of a variety of other state and local business law issues that are beyond the scope of this forum, or they might not be. Or the fanart sales might generally be legal. Or it could all come down to trademark. This forum can't pass moral judgement and the legal questions are not really within scope.

    In short, if a library wants to host a mini-convention and someone wants to sell fanart there, that is a question for the library's legal counsel. I have no idea if ALA knows what goes on in its conferences' artist alley and who approves that.

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