If you’ve ever shopped on Etsy, you know that there are a ton of Disney, Harry Potter, superheroes, and other cartoon characters being sold in various forms there.
However, most of those items are probably being sold illegally! Are you allowed to sell fan art on Etsy at all?
As a general rule, fan art is illegal to sell on Etsy or anywhere else if the seller doesn’t have the proper legal permission from the copyright and trademark holders. Without the legal license, any type of derivative work that’s recognizable as a specific character, logo, or registered business name carries the possibility of a copyright infringement claim being filed against the seller of the listing.
Since it’s difficult to get permission from most companies to sell their intellectual property, how do so many sellers get away with it when selling online?
Table of Contents
- What is fan art?
- What are copyrights and trademarks?
- What happens on Etsy if someone files a claim against you?
- How much to change to avoid copyright infringement?
- How do I get a license to sell fan art?
Some of the links in this article are affiliate links that will pay me a small commission if they’re used to purchase something. To see the entire affiliate policy click here.
What is fan art?
Before we get into the reasons that people get away with selling it, let’s look at what fan art is.
Fan art is artwork that’s based on characters from comic books, movies, television, books, or any other published works. It’s generally created based on an admiration of the characters or storylines, and the people who create it are generally fans of those works. Fan art is usually done without permission of the originator of the characters or stories, so it rarely falls under legal use laws.
I’ll say here that I’m not an attorney, and I’m definitely not your attorney, but it’s not hard to figure out that most fan art that’s being sold is being sold illegally.
Unless the person who’s making the artwork has permission from the original artist, they’re basically copying someone else’s work and using it.
It might not be illegal to do drawings based on someone else’s work for your own pleasure, but selling it is definitely off-limits.
To be clear, drawing things for your own pleasure and enjoyment is fine, but selling it isn’t. Doug Hoppes of Shadowmyths also points out that creating fan art for things that are in the public domain is fine.
For example, classic horror movies like the original Dracula and Wolfman are fine to use for fan art, but modern versions wouldn’t be.
So how do you know if something is copyrighted? And what is a copyright anyway? And why should you pay attention to it on Etsy?
What are copyrights and trademarks?
A copyright is the legal protection available for artists who create artwork, music, written work, architectural works, dramatic works, choreography, and other works as defined by US copyright law and laws in other countries. They define copyright as starting at the moment the work is “fixed in any tangible medium of expression” including online, so if you post an original work of art on your website it’s copyrighted. –Source: US Copyright Office
A trademark is a registered word or phrase that identifies a business, and it’s a separate process. Using registered trademarks without permission is also illegal, and this can be a problem if you unknowingly use a phrase that someone has trademarked.
For copyrights, you can tell if something is copyrighted because if you can see it online, it’s copyrighted. Because you don’t have to register copyrights to have them be legally yours, anything you design and publish anywhere that people can see it is your property.
The problem arises if you use someone else’s designs, which is what fan art is. Using someone else’s characters or storylines can result in an infringement claim being filed against you, even if your defense is that it’s fan art. There isn’t really a legal recourse for this, so it’s best to avoid using any characters that you didn’t invent yourself.
In addition, using other companies’ names can get you into trouble with trademark violations. I called the Erin Condren planner company to ask if it was allowed for Etsy sellers to use their name in the listings for digital planners, and the answer was no.
I know that a ton of people on Etsy use company names in their listings, but it’s not allowed and it can result in your shop getting an infringement claim filed against it.
What happens on Etsy if someone files a claim against you?
If a claim of copyright or trademark infringement is filed against your shop, Etsy has a legal responsibility to remove the listing that the copyright or trademark owner says is infringing. This is the result of the Digital Millenium Copyright Act, (DMCA) and it absolves Etsy from the responsibility of having the infringing material on their platform.
Etsy isn’t making a legal judgment for or against your listing, they legally have to remove listings, and all other internet platforms do as well.
The problem can arise when someone files a false infringement claim against your shop or listing, because there is always that possibility. Some vintage sellers recently had multiple brand-named items removed from their shops because the trademark and copyright holders filed claims.
It’s worth noting here that Etsy doesn’t proactively remove listings, they have to respond to and work with brands as they file the claims. However, vintage items aren’t really violating copyright if you have to use the brand name in the description, and that’s a problem.
When your Etsy shop has a claim filed against it, it counts as a strike against your shop. This can affect your placement in Etsy search results, and Etsy may put a temporary hold on your payment account.
Even if it’s a vintage item, it will count against your shop. You may be able to contact the legal department of the business that filed the claim to explain that it’s an item that isn’t violating their copyright, but even if they withdraw the claim it might not help you with Etsy.
In addition, some companies will go into a platform and do a search for one of their trademarked terms, then file claims against all of the listings that come up without really looking at them. If a word that you use is in their trademark, it might catch your listing up in the sweep even if it’s not infringing.
Again, you might have to contact Etsy legal and the legal department of the company that filed the claims to straighten it out, and that’s a massive pain. It’s better to try to avoid using anyone else’s work in the first place, so fan art is definitely a no-go on Etsy.
Having said that, I know that there are people who are reading this who are thinking that they can change someone’s work enough that it “won’t matter,” but you need to watch out for that.
How much to change to avoid copyright infringement?
There is no magic percentage that you can change to avoid copyright infringement in fan art. If something is recognizable as the thing that you’re copying, it’s a copy, and it’s a violation. Saying that something is “inspired by,” or putting a disclaimer that you’re not charging for the design, you’re charging for the shipping, does not protect you.
I’ve seen some pretty crafty attempts at circumventing copyright law on Etsy. As I mentioned, people will often say “inspired by” or say that they’re not claiming to own the character and that they’re not charging for that, they’re charging you for something else.
Well, nice try, but if you get taken to court, that’s not going to hold up.
There’s no “enough” to change something if it’s still recognizable as that copyrighted or trademarked thing.
To legally sell anything that was created by someone else, you need to make sure that the artwork is in the public domain, which means that it’s legally free to use based on the age of the art, or other factors. That’s something that you need to investigate for yourself, since there are some technicalities that cover certain pieces of artwork.
Something else to think about is that when you do artwork based on photos that someone else took, you’re creating a derivative work of art, which is probably infringing. Portraits of celebrities are a big one here, because a lot of people own the rights to their own names and images and will sue you for using them.
This is a tricky area, and the safest thing is to work from your own photos. Do some research before using anyone else’s artwork for any reason, even as a source for your own art.
For another article about avoiding copyright strikes, click here.
How do I get a license to sell fan art?
To get a license to sell fan art, you need to contact the copyright or trademark holder and get written permission to use their work. You may need to pay a licensing fee as well, and some fees will be very expensive in order to weed people out. Disney is one of the companies that protects their copyrights and trademarks, and they rarely grant a license to reproduce their characters, so most of the listings that use Disney on Etsy are likely infringing.
You’re probably wondering how people get away with selling these things if they’re not legally able to sell them. The answer is that they haven’t been caught yet.
When a company files a claim against you, you have a chance to respond and file a counterclaim if you think that you’re not infringing. But at that point, the company can take you to court if they want to.
Here’s a court case where Disney sued a baker who was producing counterfeit icing sheets with Disney characters. (Baker sued by Disney.)
And yes, they have a right to protect their intellectual property, just like anyone else does. The argument that you’re a small business and big old Disney is being mean to you doesn’t hold water.
If someone stole one of your original designs and sold it, you’d be pretty mad, right? So don’t get mad if Disney or any other company that you stole from goes after you. Because using someone else’s designs is basically stealing their intellectual property, and it can be prosecuted legally.
So get the license or permission (in writing) from the legal department of the company before you use someone else’s designs, or stick to public domain images.
Another interesting way to sell fan art legally is to use a service like Redbubble, which has entered into agreements with several companies to allow people to sell fan art based on their characters. It’s a limited number of companies and you have to apply and pay royalties, but it’s one way to do it.
Etsy doesn’t offer a service like that, though, sorry.
If you want to join my public Facebook group, there’s a thread pinned in there that is a long list of a lot of things that are copyrighted and trademarked that you can’t sell in your Etsy shop. (Here’s the link, make sure to answer all the questions!)
Here are some of the things that you CANNOT sell on Etsy without a license and/or permission from the appropriate copyright or trademark owner:
- Song lyrics
- Book titles or excerpts from books
- TV show titles or characters
- Comic book characters
- Cartoon characters
- Other people’s artwork like paintings, unless they’re in the public domain
- Digital art and clipart that you bought that doesn’t have a commercial license
- Clipart from pay-to-play resource banks like pixabay or canva unless they’re marked as public domain BY THE ORIGINAL ARTIST. The problem here is that there are a lot of stolen pieces of clipart that are posted on those websites that are marked as royalty free when the person who designed it isn’t the one posting it.
- Trademarked or copyrighted phrases or words like “shabby chic” and “onesie”
- Anything Disney
- Anything superhero
- Celebrity names and images
- Professional sports teams logos or names
- College mascots and logos
- Designer logos
- Artwork that a customer sends you and says “can you print this on your products?” unless they did the artwork and give you permission to use it
- Company logos
- Photos that the photographer didn’t give you permission to use
- Social media logos
- Text taken from anything that’s been published online
- Designs that you copy
- Military insignia and logos
- FAN ART (yes, it’s infringement)
- Fabric that’s marked as personal use only on the selvedge
- Some fonts if they’re not allowed for commercial use
- Sorority and Fraternity letters and logos
- Company names when making printable pages that go with planners, or for things that are accessories for trademarked products
This is NOT a complete list, it’s just to get you started. So what’s the easiest way to avoid infringing? Create your own artwork, your own photos, and your own designs.
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