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October 2012
Sat, Apr. 16th, 2005 11:40 pm

For my copyright class, I'm writing about fan art and the search for a dividing line between derivative works and inspired works. If you have a moment, I'd greatly appreciate input on any of the following issues.

Note that these questions are mostly a matter of personal opinion for the "common fan." Familiarity with the actual legal issues surrounding the issues are not a necessity, but I'd appreciate hearing the thoughts of someone with an awareness of copyright law and legal history.

As these are intended to be a matter of personal opinion (and where an individual's moral sense of an issue might deviate from the dictates of copyright law), there is not necessarily any right or wrong answer. I'd like to see how opinion on these matters differs across fandom.

Also, as each of these questions is pretty daunting, I certainly don't expect people to answer all of them! Just pick a question and go off on a tangent. :D I don't want the sheer number of questions to put anyone off contributing their thoughts on one or two of them!

At what point does a piece of fanart become "yours"? How far from established canon must something be in order for it go from being a derivative work to being an original art work, and therefore no longer subject to the restrictions copyright law places on derivative works?

How would you rate the following in terms of derivative vs. original?

  • A project inspired by a concept presented in an existing work, ie my Sandman project, in which I take the names of Gaiman's seven "endless" and create my own impressions of the concepts they represent, completely divorced from Gaiman's.
  • A large-scale project that takes pre-existing characters and builds whole identities, memories, and worlds for them, though still rooted in canon. One example: the Shoebox Project.
  • An original character, depicted in a scenario/environment/world from an existing work.
  • A character/scene from a fanfic.
  • A character/scene from canon.
  • A portrait of a character from an existing work, with features nondescript enough as to not be immediately identifiable as an established, preexisting character.
  • A portrait of a character from an existing work, bearing distinctive enough features as to make him/her unquestionably identifiable as that preexisting character.

    How do you feel about fanartists selling their work? Does your impression of how copyright law works conform or clash with what you feel is morally right in such a situation? If you are a fanartist, have you ever sold artwork? Have you ever sold artwork while feeling that it might not be morally and/or legally right to do so?

    Is illustrating a fanfic morally/legally any different from illustrating canonical source material?

    Why is it "more okay" for fanartists to sell their images than it is for fanfic writers to sell their stories?

    Movie Magic Magazine paid three fanartists $50 per image to use their artwork in the Fanart/Fanfic article in the "Goblet of Fire" issue. Does this seem legally legit, according to your understanding of copyright law? Does this affect your impression of the legal issues surrounding fanart being sold?

    Major thanks to anyone that contributes their thoughts! And if you can think of any related issues that deserve similar consideration, post them in the comments! Let's break open this can of worms!

  • 3CommentReply

    (no subject) - (Anonymous)

    (no subject) - (Anonymous)
    Glinda the Good: Officially!
    Sun, Apr. 17th, 2005 02:04 pm (UTC)

    Wow, thanks so much for taking the time to answer so thoroughly! *smooches you*

    Are the works of the Pre-Raphelites less "theirs" because they drew on the great modernist canons (Shakespeare, Greco-Roman mythology, the Bible, Dante, Milton, etc)?

    The difference here is that the great modernist canons are in what we now call the Public Domain. You can do a lot more with public domain works than you can with works still under the protection of copyright law without running the risk of being sued.

    And again, some cultures have no problem with it (Japan), other do (US and other such cultures).

    As I understand it, copyright law and IP are actually rather similar in Japan in comparison to the US. I seem to recall some international copyright agreement, but I'm too lazy to look up the name it at the moment. Anyway, it's just that the selling of fan-produced works like doujinshii (sp, I'm sure) is so rampant in Japan that it wouldn't be financially viable for the owners to hunt down those involved. It's the cynical definition of "Fair Use": We can't afford to sue you all, and we wouldn't get much money out of you anyway, so we'll let it slide.

    Again, I really appreciate your input! Thanks so much for sharing your thoughts!

    ReplyThread Parent
    Claudia "this next dancer looks cheap" LL
    Sun, Apr. 17th, 2005 02:02 pm (UTC)


    First, all artworks in history have had a base on nature. So nothing's what people understand as original; original, is what the word says: going to the origins.
    A piece of work is only original, when it's not mimicking its origin.
    This goes to fanart as well; a piece of fanart is yours, when you reinterpreted the origin your way. You capture an essence through your own lens.

    There's only one thing that separates derivative from original copyrighted: money
    If the industry payed you to do it, then it's also yours (e.g the latest Morpheus painting by Michael Zulli)


    Inspired by; that's completely different. It is difficult not to be compared to Gaiman's work in this case, because he created his characters by going to the origins, while your origin was his work, already based on something else(this is no insult,though, I really dig those pictures you made)


    'Get a life'.


    Well, a lot of spin-off novels have been writen that way, so why not in artwork. Again, the differece is made when you start getting payed for it




    An interpretation or simple mimicking?


    Failed to capture the essence, or tried to pass derivative for original.


    Did you reinvent its reality? I think this question answers itself.


    I'm walking on thin ice here. I have sold fanart. BUT it still bugs me when so-called fanartists learn to draw a character to a T, and sell those artworks for 200$+, while I try to do my own stuff, and sell those pieces for a mere 30$.
    I think it's only wrong when you just copy a character, and even the style, because that's an insult to the original artists.
    I've never felt I'm doing something wrong; I've only sold artwork to people whom I know already buy reproductions of the original art, and have needed a fresh image, or to people who have a fandom that hasn't quite been catetered to (you can get your hands on tons of Harry Potter merchandise, posters, etc., but how many Lupin things? Sp before the movie)
    To me, that's just practice to what'll come ahead and if I make a buck or two out of it, so be it. In my school, they support etrepreneurs, and encourage us to start working early, get a taste of what a client will be like, in terms of what they want, and how to meet expectations.
    I know I'm not an illustrator, but Graphic Design goes by pretty much the same basics, and any experience I can get is worthy
    So no, I don't feel it's morally wrong. I do feel bad for other people, who've bought mere junk from so-called artists, who haven't really a clue.


    I'm guessing fanfics themselves are a matter to discuss in the legal venue. The illustration is just a side effect. But as long as you're not making any money from them, it's OK.
    I sold an art depicting fanfic/canon characters once, but that's different, we weren't making profits, the writer and I; she was just very passionate about seeing her own creations come to life and I respect that.
    The good about ffs, is that you'll get less heat from the copyright holders, because (and much thanks to the earlier Star Trek fandom), fanfics are already seen as something that exists unhelplessly, and nobody can do a thing about them; in fact, writers should be super-glad, if their work was able to inspire so many minds at the same time.
    Now, when's an art canon or fanfic-inspired? That depends on what's depicted, and it could save you from copyright holders, or not.


    Once again, an art still has the possibility to depict something completely different, and visuals are always attached to the artist's very personal point of view -unless copied-, while with writing,this is far more difficult to understand.


    Gee, I wonder who those artists were.
    To me, it was totally legit, because they needed to depict the world of fandom. You can't communicate fandom without turning directly to a piece of fan-made galore. It was needed to illustrate an article, that was very specific to its theme, so i see nothing wrong with it. Now, if said magazine started hiring fanartists for every other article, that would get the entertainment industry's bestest lawyers, tailing their asses, for sure.
    To me, this was an isolated case, and it does not affect my views on selling fanart.

    Mon, Apr. 18th, 2005 07:41 am (UTC)

    Hi! Saw that you had me friended and went visiting your LJ...

    As for your questions... Well, I always had problems understanding the word fanart. If you're talking about drawing charaters or situations derived from a book then it's called illustration and it's so legal that it's a job. Do people refrain from selling illustrations from Tolkien, for example? What's considered copyright infringement is drawing or painting situations inspired from a preexisting visual medium, such as a film. For instance, if we stay with LotR, John Howe is totally entitled to paint more LotR illustrations, but isn't authorised to paint things that come from the same visual concepts than the films, because the right belong to Peter Jackson and New Line.

    As for Harry Potter, there's the additional problem of the trademarked names: Warned Bros trademarked a lot of the characters and magical things names, so that they're the only ones authorised to sell things with these names in. It's not a question of intellectual property, but of commercial use. So that an illustration from the books that wouldn't have any of the copyrighted names in it wouldn't infringe the trademark (but that would be hard to do).
    Now, I understand that what they're really against is massive selling, such as calendars, T-shirts or mugs.

    So I find it perfectly normal that three people were paid for their illustration work in an article about "Goblet of Fire".

    This said, Warner Bros are totally entitled to pursue a fanartist that makes (and sells without their permission) drawings inspired by the movie visual concepts and actors, such as Hogwarts pupils with the movie school uniform or Quidditch attire, Snape portrayed as Alan Rickman or even Sirius with tattoos and Remus with scars across the face.

    I think that illustration is a perfectly valid form of original art, and one I value a lot, as I love telling a story (or interpreting an existing one) through painting. I feel especially proud when I'm, for example, painting a character, and people can tell at the same time that it's mine because of the style and my visual world and can recognise it as the character from the story I'm illustrating. I don't really see the interest in drawing a character from an existing fictional universe if it can't be identified as such! If it's a fanfic, then I'll try to interpret at the best of my abilities the mood or the settings or the precise situation, exactly as I would with an illustration for the original story. Now, when it comes to real copyright, I guess that an illustration for a fanfic couldn't be sold as fanfic does infringe copyright. So I'd say that it's legally different, but that the exercise is the same and that I have no moral problems illustrating a fanfic (in fact, it's a pleasure to do it as a present for the author).

    And of course, the image becomes mine as soon as I begin to paint it! It's my own visual representation, my own technique, composition, use of colours and of shading and of lines...