Fanart, Copyrights and Trademarks

[carlosranna]

Hi guys. I searched around for this discussion and coulden´t find it. Sorry if there is already a thread about it. I already take a look at this nice topic (http://www.conceptart.org/forums/showthread.php?t=149328&highlight=fanart+copyright), but it does not answer the exact question i have, even tough it helped me clarify some ideas.

Me and a friend are developing a lot of illustrations in traditional medium, based on well known properties from comics and movies. We are doing it for 2 main reasons. The first one is to develop a portfolio of pieces to present to the comics industry, and the second reason is, in case some fans gets interested in the quality of the work, we could sell the originals to them.

Well, here is what i´d like to known. Is it ilegal somehown? We are not making prints, large copys, producing apparels and stuff like that. The only thing for sell is the original itself.

As i understand, the original is a derivative work of art, and belongs to me. I don´t have the right to copy it, nor have the owner of the character trademark. But have i the right to sell it?

Thanks a lot for the help, and once again, sorry if it´s been asked already.

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EDIT:
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I just found this topic (http://www.conceptart.org/forums/showthread.php?t=156762&highlight=fanart+copyright), that covers this same question, but from a different point of view.... Sorry about that. Anyway, he is asking about prints, and my question is about the original. If any moderator can please, tell me if i should better ask my question there, instead of here, i would gladly apreciate. Feel free to delete this if this is the case.

[J Wilson]

Well the copyright owner is the only person who has the right to make derivative works legally.
Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies...; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies...of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending....

From a strict standpoint I don't think there is any way to legally make money off a copyright you don't own. However, what is legal, and what will generally be enforced often are different things. I've never heard of a company going after fan artists that were selling single originals here and there. I'm not saying I'm recommending it, but generally large companies aren't interested in squashing harmless fan artists.

[DavePalumbo]

there was a discussion recently that touched on this a little bit: http://conceptart.org/forums/showthread.php?t=156762

part of my response over there:

I don't know the letter of the law on why selling originals can skirt the issue, it's just my understanding, at least here in the US. I've heard this from a number of artists and I know conventions like San Diego Comic Con that host art shows generally allow sales of fan art originals but not prints for this reason. I've never found out exactly why, it's possible that it's not actually 100% true, copyright law is a complicated thing at times.

edit: ha, how'd I miss that you found that thread! oh well, anyhow...

[carlosranna]

Dave Palumbo - Thanks anyway!

J Wilson - Well pointed. Thanks a lot. I didn´t known about that detail. Anyway, i agree with you that it´s not much likely to see a company going against a fanartist that sells the original, unless it´s a work that diminishes the economical value of the product somehow...

Thanks a lot guys!

[J Wilson]

Exactly. They are far more likely to try to put a stop to you if you are harming their property somehow (I have no idea how those cartoon porn sites don't get shut down). If you are treating their material with proper respect, odds are they'll turn a blind eye.

[Viridis]

Hm. I think if you were just selling the original and not prints it would be all right? Technically it could be copyright infringement but it's pretty unlikely that the company(s) would go after you, I think.

I know that there was at least one show I heard of recently where the whole theme was to re-interpret classic 8-bit games/characters. So you got paintings like this (http://jasinski.deviantart.com/art/Survival-of-the-Fittest-54964179), and this (http://jasinski.deviantart.com/art/NEStalgia-42106330) which, while definitely being recognizable as Nintendo's characters, were still a new work in their own right. I don't think there were any objections to selling the originals in that show, but again, it's a very grey area, and some companies are more picky about it than others.

[Elwell]

Don't worry, you'll be fine.

[carlosranna]

Thanks again to everybody. When we release our site i´ll be sure to post some of the works on the Critique session. I feel much better now. :)