At the recent Stumptown Comic Convention in Portland, I had the chance to chat with comic artists about what basic questions of law they have. One artist asked if he created any liability for himself by drawing fan art sketches.
Fan art is a drawing based on a character, costume, or location that is made without permission by the original creator. A professional artist may consider it insulting to have their art referred to as “fan art.” I mean no offense, copyright law does not distinguish the work or professionals from amateurs and for the purpose of this blog, neither will I. The ability to create fan art is vital to comic artists both as a means of practicing to improve skill, but also to make money at conventions by drawing commissions for fans.
The practice is common, but is it legal? The short answer is a qualified maybe, which is about as good as you can get from a lawyer without specific facts. I think most artists are safe, but each situation will be different.
For the sake of discussion, I’ll use Batman as an example because he is well-known to any reader who would care about the answer and has very recognizable attributes to copy.
Before you can violate someone’s copyright, they must have one in the first place. A copyright is a set of rights available to authors of an original work in a fixed form. Each Batman comic book qualifies for copyright protection. Each line of dialogue and panel of action are a part of that copyrighted work. Fictional characters can be copyrighted separately if they have substantially distinctive features. “Batman” qualifies for protection as a stand-alone character, but “thug #3” does not.
Batman is copyrighted, which means that only the author/rights holder (in this case, DC Comics), has the right to copy, display, distribute, and create derivative works. Fan art can be considered a derivative work, therefore most fan art is an infringement of DC’s copyright.
BUT, copyright law has a doctrine called “fair use” that (in the name of free speech) protects certain uses that would otherwise be an infringement. To find protection in fair use, a second work must be an artistically transformative use of the first, not have a great economic impact on the first, and not take too much of the first. A good piece of fan art is very transformative, giving us a new vision of a familiar character, so that factor could benefit the artist. The amount taken would probably not favor the artist, because one of the considerations is if the “core” elements are copied, which most fan art does. Economic impact would also not favor the artist, as DC could argue that the $60 the fan put down on the fan art could have instead gone towards the purchase of a licensed poster. The factors are not merely added up, however, so artist’s don’t lose 2-1. A truly transformative work may be protected. Fair use is a vague doctrine, giving courts great freedom in application. A good lawyer can make or break a free speech argument.
Due to the U.S. love affair with free speech, Parody enjoys great protection. Well executed parody will steal just the right elements from the target to make the identity clear, then let the roast begin. Even if the “core” elements are copied and the economic value of the original is harmed, a parody is still protected. The irony is that fan art which seeks to honor the original work enjoys less protection than a work that insults it.
Fan art could also potentially violate the Batman trademark. Protection in the trademark realm covers the right to claim you are the rightful source of a good. Trademarks are violated when a second party markets goods in such a way that the consuming public could believe they are buying from the first party. Trademarks usually protect words or phrases and company logos, but can also extend to packaging (called trade dress). Fan art shouldn’t ordinarily violate trademark if the artist makes no claim to be associated with DC and isn’t marketing his or her own “Batman” comic. An artist can say that they once drew Batman for DC (so long as it’s true). I could see an artist getting in trouble if they tried to publish a collection of original Batman sketches in a bound volume with the words “Batman” on the cover. Such a collection would look more like a sanctioned publication.
An entirely different (and non-legal) reason for why DC doesn’t bring the pain on independent artists is that they have decided it’s in their best business interest to let it go. Comic book fans are a dedicated, if not rabid, bunch. They want to live in the world they read about. While that will never happen, getting a one-of-a-kind drawing from a favorite artist gives them a unique piece of that world. That fan, rather than cease purchasing Batman merchandise, will be drawn even further into the brand, buying all the comics and other merchandise, then seeing the Dark Knight five times, and then buying the DVD. Comic artists, freelancers that they are, also benefit from being allowed to make some side cash when DC doesn’t have a commission for them.
I can’t speak for DC, perhaps some of the reasoning I’ve outlined, plus the headaches of fighting over fair use, plus the desire to not be seen as creative fascists, combine to convince them to leave it alone. But with all this in mind, I offer the following suggestions to artists who want to draw original works based on others creations.
1. The more original your work is, the more protected you are. Be creative, that’s why you draw, anyway.
2. Be wary of mass production. The bigger you get, the bigger the target on you.
3. Don’t use the logo or trademarked name. People want the drawing, not the name, so don’t risk it.
4. This should go without saying, but since someone did it, I’ll mention it. Don’t draw attention to yourself or intentionally aggravate the big boys. In 2002, artist Jeff Supon sued DC for copyright infringement of his “Black Bat” comic. In 1984, Mr. Supon sent DC some original sketches of his ideas of where he thought Batman should go next, apparently hoping to become a new artist for the company. DC never replied to Mr. Supon, and he relabeled the work “Black Bat.” In 1999, after the release of “Batman Beyond,” he brought suit for copyright infringement, claiming the new series incorporated the designs he submitted 15 years earlier. He got creamed. DC won its defence against his claim and won its counterclaim that his designs infringed their intellectual property. Bottom line, don’t wake the dragon.
I hope this helps. Keep doing what you’ve been doing and you’ll probably be fine. If a DC (or Marvel, or Dark Horse, etc.) representative ever approaches you and requests you stop making a particular drawing, be nice, hear them out, and decide if it’s worth it to you to fight back. If it is, seek the advice of an attorney who can give specific counsel to your circumstance.