I'm going to take a quick break this week from my Comics Startup 101 series to answer a question I've seen asked a lot lately.
Is fan art legal?
Being an intellectual property lawyer who is passionate about comics, one of my pastimes at conventions is to walk artist alley and the exhibition hall floor and guess who is selling prints and merchandise bearing unauthorized images of characters and actors. Whenever I have hosted my Comics Startup 101 panels at conventions and we start talking about intellectual property, the question of whether fan art is legal frequently comes up. The short answer, in my opinion, is no.
However, let’s take a more nuanced look at the reasons why I feel this way. Just to make sure we are all on the same page, when I speak of fan art, I am talking about art generated by a fan of a particular character, story, movie or other medium that is created without authorization from the owner of the property being depicted or from the person being depicted.
In order to determine whether fan art is legal under intellectual property laws, we have to look at copyright, trademark, and right of publicity laws. Below, I am going to briefly discuss these areas of law as they relate to fan art. Keep in mind that these are very complex areas of law that can fill entire books. What I will be discussing here is just a brief overview.
Copyright protection is granted by federal law. It protects “original works of authorship fixed in any tangible medium of expression.” Included works of authorship are “(1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works.” The Copyright Act grants exclusive rights to the creator of the work for the life of the creator plus seventy years. Of particular interest to our discussion are the copyright owner’s exclusive rights to reproduce his work and to create derivative works based on his original work.
Trademarks are used to identify the source of goods and services. Trademark rights arise from use in commerce,  and they can be protected as long as your trademark is in use. Generally speaking, the first person or company to use a trademark for their goods or services has acquired some rights to prevent others from doing so, even if the trademark is not registered with the U.S. Patent and Trademark Office (“USPTO”). In order to have the broadest protection available, a trademark should be registered with the USPTO. It is important to note, however, that in order for a trademark to be registered with the federal government, it must be used in interstate commerce.
Of particular interest to our discussion, it is possible for an image or logo to be eligible for both trademark and copyright protection. For example, Superman’s S shield arose as a copyrightable image/design, but it has also become an indicator of goods and services for DC Comics and a registered trademark for belt buckles, toys, sporting goods, electronic games, motion pictures, comic magazines, and many other types of goods. So, it is both a trademark and protected by copyright.
The right of publicity is the final area of law we need to discuss. Even though the right of publicity might not technically be an intellectual property right, it is nonetheless lumped in with these for good reason. It arose out of a person’s right to privacy. However, as the law developed over time, it was accepted that in addition to a right to privacy, a person has a right to control how their likeness is exploited for financial gain. Therefore, the right of publicity allows someone, typically a celebrity, to control how their image or likeness is used for commercial purposes. The right of publicity has been adopted in some form in over half of the states. The right differs from state to state and can apply to “sound alikes; look-alikes; use of the celebrity’s nickname in a fictional work; use of address; statues; and the use of a robot that barely resembles the celebrity but evokes her image.” The right of publicity is a very broad legal doctrine that can pose serious problems for creators trying to evoke the likeness of a living person or celebrity.
Based on what we’ve discussed above, I believe most fan art to be a violation of intellectual property laws. Typically, we have a fan creating an image of a popular character, such as Iron Man, without the permission of Marvel. Even though the fan’s image may be distinct from other interpretations of Iron Man in the past, a copyright holder has the right to reproduce their works and to create derivative works. It is my belief that a fan creating an unauthorized Iron Man image is in violation of Marvel’s copyright rights. Additionally, because Marvel licenses Iron Man’s image for use on merchandise, the fan could be in violation of Marvel’s trademark rights. If the fan is selling copies of their art, then the question of whether it violates Marvel’s rights is even easier to decide in Marvel’s favor. The right of publicity comes into play if this fan art is of Robert Downey, Jr.’s Iron Man. Not only would the fan be in violation of Marvel’s intellectual property rights, he could also be in violation of RDJ’s right of publicity.
If you are going to create fan art, then you should tread carefully. In all likelihood, drawing an image of your favorite character and posting it online will not get you sued. It’s generally not in large media companies’ interests to go after fans. If anything, you might get a request to remove the image. However, if you are creating unlicensed fan art and selling it online or at conventions, the risk of legal trouble increases greatly.
You might be asking, “What about fair use?” It is true that fair use is a limitation on a copyright holder’s exclusive rights. If a work of art qualifies for the fair use exception, then it is found to not infringe another’s copyrighted material. The language of the statute reads:
“…[T]he fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.”
Fair use is a strong defense against a copyright infringement claim. However, you may have to go to court to assert it, which could be costly, and it is not always consistently applied, which makes it difficult to predict an outcome. Relying on fair use to save you is not the best idea.
So, is fan art legal? Unless your work qualifies for fair use under the copyright act and doesn’t infringe on any trademark or right of publicity rights, then it might be. However, your typical artist alley renderings of Iron Man, Benedict Cumberbatch’s Sherlock Holmes, or all of the Doctors are most likely going to be found an infringement. Draw carefully.
 U.S. Copyright Office, Copyright Basics, http://www.copyright.gov/circs/circ01.pdf (last visited April 15, 2016).
 17 U.S.C. §102(a).
 17 U.S.C. §302(a).
 17 U.S.C. §106(1).
 17 U.S.C. §106(2).
 What is a trademark?, United States Patent and Trademark Office, http://www.uspto.gov/learning-and-resources/trademark-faqs (last visited April 18, 2016).
 Must I register my trademark?, United States Patent and Trademark Office, http://www.uspto.gov/learning-and-resources/trademark-faqs (last visited April 18, 2016).
 How long does a trademark registration last?, United States Patent and Trademark Office, http://www.uspto.gov/learning-and-resources/trademark-faqs (last visited April 18, 2016).
 What are “common law” rights?, United States Patent and Trademark Office, http://www.uspto.gov/learning-and-resources/trademark-faqs (last visited April 18, 2016).
 See What is “interstate commerce”?, United States Patent and Trademark Office, http://www.uspto.gov/learning-and-resources/trademark-faqs (last visited April 18, 2016).
 See What is a copyright?, United States Patent and Trademark Office, http://www.uspto.gov/learning-and-resources/trademark-faqs (last visited April 18, 2016).
 Trad. Reg. No. 4656403, Registered Dec. 16, 2014.
 Trad. Reg. No. 2211378, Registered Dec. 15, 1998.
 Trad. Reg. No. 2226415, Registered Feb. 23, 1999.
 Trad. Reg. No. 1173150, Registered Oct. 13, 1981.
 Stacey L. Dogan & Mark A. Lemley, What the Right of Publicity Can Learn from Trademark Law, 58 Stanford Law Review 1161, 1167-73 (2006).
 Id at 1167-74.
 Id at 1174.
 Id. At 1174-75 (internal citations omitted).
 17 §107.