It has been said that imitation is the highest form of flattery, but this is not necessarily true when it comes to the law. All art is to some degree derivative, but where is the line drawn between derivation and theft? Everyone will have drawn Fan Art at some point, as kids if not as adults, we want to draw out favourite characters because we love them. Perhaps we’ll even write stories with them in, because we want more stories, because we want more than what’s already out there. Because we are Fans.
But every time you make Fan Art you are breaching Copyright because you do not own the intellectual property to those characters, concepts or designs. You are not the original artist, nor have they given you permission to copy their work, so you are essentially ‘nicking’ their idea. That’s the letter of the law, but what is the spirit of it? There’s a big difference between lovingly imitating and maliciously stealing.
Fans do not want to hurt the object of their fandom, far from it, they want it to flourish! They want to spread the love and make other people fans, too. This helps companies promoting these franchises so, generally, they don’t want to treat Fan Art too harshly. In a way it is free advertising, so a net gain for them. This does not mean they can’t prosecute however it does mean they are unlikely to and, assuming the work was non-commercial, it would have a good defence. If it’s not commercial (i.e. you are not selling it) you are pretty much okay.
But what if the art is commercial? At places like comic conventions some struggling artists make their bread-and-butter from selling Fan Art. Whether it is legal or illegal falls under a law called ‘Fair Use.’ Usually this means the work must be a work of Parody, or in some other way be considered Transformative: using the character or subject in a new way which is different and original. Usually a straight copy would be in breach of copyright, unless it was One-Of-A-Kind. This means there is just one and it cannot be reproduced, or the method of reproduction is laborious or time-consuming, such as a hand-painted picture.
Scale is very important; an individual selling an a few pieces of Fan Art is not likely to damage the profits of a large company. On the other hand if someone is copying a work en-mass it will damage profits and the copyright holder is likely (and very justified) in taking legal action. The impact of copyright infringement and art theft is going to impact independent artists a lot more than big companies because their business is relatively small. This is why it is important to have copyright laws, although it can be hard for the ‘little guy’ to take someone to court alone, often fan communities will actually come to the rescue! Profiteering off stolen work is not cool, but there are unscrupulous companies who will make T-shirts and prints from stolen works and sell these on a large scale. Fans can help by recognising an artists work, reporting it when they think it may have been stolen, and some may even help with legal fees should court action be required. Fans are the good guys!
The creator can, of course, give copyright to whomsoever they choose, and consent is sexy! When I have drawn Fan Art from other webcomics I’ve asked if it is okay and been given permission. It’s just polite, and often a chance to connect with a creator you love who will often be delighted you are a fan and excited to see your work. With bigger ‘intellectual property,’ for example Marvel or DC, asking permission may be more difficult, but there is something called ‘implied consent‘ which is useful in these cases. This is where a company, artist or actor speaks out publicly encouraging Fan Art. This means they’re probably okay with it, they’ve ‘implied consent’ so go ahead and make your Fan Art! You have permission! For example Lucas Arts is very encouraging of Fan Art and even holds Star Wars Fan Film Awards. This is why I had no fear participating in a massive fan recreation of The Empire Strikes Back.
Some successful artists have even been hired because of their Fan Art! So go forth, be creative and draw what you love.