A while back, a lawyer from deviantArt – a social networking site devoted to showcasing the art of its members – discussed the possible consequences of making fan art.Boingboing.net neatly summarized a very tedious speech: the lawyer spoke about “fair use and other public rights in copyright, generally downplaying them and omitting the de minimis exemption to copyright (the idea that it's not infringement if you take a small enough piece, for reasons that are separate from fair use) altogether.”
I’m not going to pretend I’m a legal expert here but I know about copyright. Plus, I am an expert in fangirling, so I can explain some things.
Fan art is exactly what it says on the tin, art not made by the original creator of the work – but presumably a fan – that showcases some character, setting, or other aspect of a work made by the original creator. In writing form, it’s fan fiction instead.
Just typing the words “fan art” in a search of deviantArt yields 1,174,570 results, adding in the amounts from other art sharing sites like Pixiv and Elfwood (minus the repeats on both sites) and the number gets even more staggering. It’s not hard to see why fan art is popular: What better way to show your love for a series than posting a drawing of your favorite character for the world to see? Imitation is the sincerest form of flattery isn’t it? Thanks to the internet, you can now display your artistic devotion to everyone within a computer’s reach.
So why’s that bad?
Well for some authors and artists it’s not bad at all. JK Rowling for one is usually a supporter of those who write Harry Potter fan fiction.
But even she wasn't too thrilled with the Harry Potter Lexicon website when they tried to sell a written form their site's Harry Potter info.
And there’s the rub. Fan art can’t escape that legal hole either. DeviantArt has a system where people can pay for a “deviant’s” works (called deviations) and some have tried to do this with fan art. Sure, the artist drew that picture of Sailor Moon and they slaved over it for hours. But they're also not Naoko Takeuchi, and they used her character to make money.
And that’s not even getting into the problems when the fanart in question is taken directly from the original artist and then expanded by a fan in some way. For instance the picture above is an original drawing by ryohukekei, the creator of Black Rock Shooter. The picture below is the same, only edited by someone else to be wallpaper for a computer. As mentioned above de minimis means that if its a small piece it’s not infringement to use, but that’s a pretty big piece so the legal gray area grows.
I learnt eventually, but I would've never found two series I enjoy so much now if it weren't for the work of fans.