#3 - How Companies & Celebrities Love and Hate Fan Art

The following article is a transcript of Episode 1 of the Fan Art Series on Don't @ Me Podcast. ✨Listen Here✨

Disclaimer: I am not a lawyer, have never or do not have the intention of studying law, therefore I’m not qualified to give legal advice. This is just presenting research and providing commentary. Please seek official legal advice for thorough information and representation if you want more information about anything said in this podcast.

Hey Hey! Welcome to episode three of the Fan Art series on Don’t @ Me!

I’m your host, Mikaela Copland and you may recall in the last episode we discovered fan art was illegal.

However, now I’m ready to reveal the reasons why fan art exists, despite its legality.

Fan art exists because the copyright holder gets to have their cake and eat it too.

Fan art is user generated content and it’s free. It’s an easy way for the copyright holder to build a presence and is almost a basic need in the music industry. Fan art nurtures the community and can often inspire the artist.

For example, a 40 year old hip hop dancer Mike Alancourt made up a choreographed dance to Post Malone’s song ‘W.O.W’. It gained so much traction online that Post Malone himself invited the dancer to feature in his ‘w.o.w’ music video and on his tour as an official dancer. That’s the ultimate dream right, to be acknowledged and appreciated by the person you’re creating the fan art for.

Some celebrities even encourage fan art.

Former One Direction member Niall Horan held a fan art competition for his new album ‘Heartbreak Weather’. The competition asked fans to: “Create artwork that brings to life one of the songs from Niall Horan’s album, Heartbreak Weather.” They were also instructed to use Niall’s logo and have the option to depict Niall in their work.

Do you see where I’m going with this? This is a direct copyright AND trademark violation, with a sprinkle of derivative work, which we’ll get to later.

Let’s pick apart the terms and conditions more, because it’s crazy.

Firstly, if you’re not selected, you only retain the rights to the “original portions of your work.” So if you used a model, you own that photo of the model.

It continues to say “However, by submitting you hereby grant Niall Horan / Capitol Records (and partners, including but not limited to Modest Management) a worldwide, non-exclusive, digital license from Creative Brief launch, for up to 3 months after the Selected Creator Announcement, to use your submitted work across their various online and social media platforms.” So they can use your work without paying you. They do say they will credit ‘where possible’ which is such a cop out for me. I could go on and on how exposure for artists doesn’t pay the bills, but that’s a whole other story.

Let’s get to the winner where I personally think the prize is lackluster for a celebrity of Niall’s calabar.

Quoting the terms and conditions, “If you are a ‘Selected Creator’, you will be required to sign a worldwide, exclusive, royalty-free, 1-year license in and to the selected work to Niall Horan / Capitol Records for the specified incentives.” So if you’re not getting paid for the full year, what are these incentives they talk about?

Let’s note the actual phrasing here when describing the incentives, it says “The Selected Creator will potentially...” and then lists them. This is important for later.

Okay onto the actual incentives.

Firstly, have your work shared across Niall’s online channels as well as shared across Capitol Records or Modest Management marketing channels . Alright, again, exposure.

Let’s continue. You’ll “Receive a printed copy of your artwork signed by Niall Horan.” Adding in the element of acknowledgement is the ultimate prize in a fan artist’s mind. Moving onto the kicker, you’ll receive £1,000. Okay that’s a lump sum. But let’s look at the numbers.

The man himself is worth an estimated 70 million according to Celebrity Netwoth.com. His album alone made an excess of 42-45K US dollars in its first week. And you’re giving fans who have poured their heart and soul into their art as well as dedicated their life to loving your music, a measly $1k and a signature?

Yes, you could argue that it’s not about the money. But if it wasn’t about the money and it’s more about the recognition, then wouldn’t it be nice to chuck in a meet and greet or video call?

But wait, it gets better. Waaaay down in the terms and conditions, they say Niall Horan / Capitol Records may share the Selected Work on their socials, but this is at their sole discretion and is not guaranteed. So you’re telling me, one of the main incentives, for your artwork to be shared and glorified as the winner publicly online, isn’t even guaranteed?

If that isn’t the definition of dangling a carrot in front of someone's face, I don’t know what is.

And if you’re wondering, I did check the twitter and instagram accounts of Niall, Modest and Capitol. Only Niall posted about it on his twitter. So only one of the potential six platforms was actually used to promote the art. I left out Facebook as it’s less likely that fan artists use this platform to showcase their work.

One of the sad parts of this whole campaign is that, after this competition, Niall can technically sue fan artists for using his logo as he no longer gives them permission.

This philosophy applies to any celebrity who shares or expresses appreciation for their fan art.

Informally, Ariana Grande can share a drawing of her in her ‘Thank You Next’ video with the caption praising the artwork. In the next breath, she can also send a formal cease and desist letter to the artist for derivative work and using her trademarked name. She loves me, she loves me not.

The reason why celebrities legally can, but often won’t go after fan art is because it’s not worth their time. They can’t justify spending the legal fees and the time to come after every small artist.

It can also paint them in a negative light, with a big music label coming after a high school girl creating art in her room and sharing it on instagram for clout. It will often peak their interest more if the artist poses it as merchandise and is taking away sales from the official merchandise.

To sue, or not to sue. It’s at their discretion.

When I discovered that celebrities can have the ‘best of both worlds’, I thought there must be defenses and cases where this Hannah Montana mentality is condemned.

In our next episode, let’s look at defenses to copyright in the fan art world.

If you have any questions you want me to research, please DM me on my instagram @dontatmepodcast or via the contact form on my website. Catch ya in the next episode.