#1 - What is fan art and why does it exist?
Updated: Apr 3, 2021
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.
Welcome back to another season of Don’t @ Me!
I’m your host, Mikaela Copland and I’m ready to deep dive into fan art.
No, like, really, I’ve been drowning in everything fan art for months just so I can present a whole season exploring the industry.
What started as a social media podcast has transformed into something much bigger. I’m really excited to lay out everything I’ve learnt so you can easily understand the complicated world of fan art.
In this series I’ll be debunking myths, explaining jargon, and using relevant examples to help you see fan art through the eyes of the artist, the law, and the business or celebrities. A lot of the information and examples are related to musicians, as this is an area with an abundance of fan art and a personal interest of mine.
There’ll be a total of 6 episodes. The topics we’re covering are:
What is fan art and why does it exists (which is this episode)
Trademark and copyright law vs fan art
How companies love and hate fan art
Fair Use Defenses - Parody law, Transformative works,and Derivative works
How Etsy, Redbubble and Deviantart approach fan art
Should you continue making fan art?
It’s going to be quite an informative adventure - for both you and I.
A new addition to the podcast will be the summary of my research on my website. This’ll include my main points and the sources so you can do your own research. How nifty is that?
Before I look into the history of fan art and why it exists, let me just look down the barrel of the camera and say, “You’re probably wondering how I got here”.
Well, it’s because of a musician I love.
Like most things in my life, like my career, I used this particular musician and their group as inspiration. This time I was looking for experience in the influencer marketing sector. My current job doesn’t cover it, so I looked for volunteer opportunities instead. I ended up creating my own opportunity in an industry I love, fan art. Specifically, I reached out to an illustrator on instagram.
She illustrates empowering figures of all backgrounds, including this musician. She’s quite well known in the community for her artistic fan art designs inspired by them. She sells these on a variety of things such as t-shirts, mugs, notebooks, planners, etc. We became really good friends despite being on opposite ends of the world but I won’t name her to keep the musician she illustrates anonymous.
Before I go on, let’s pause and look at the definition of fan art. The Merriam Webster dictionary refers to fan art as “artwork based on popular works of fiction (such as books, movies, etc.) that is created by fans”. However, that’s a little outdated don’t you think?
Fan art isn’t just about fiction, because although they might seem unreal, musicians aren’t fictional right? Let’s look at Wikipedia's definition next: Fan art is “artwork that is based on a character, costume, item, or story that was created by someone other than the artist”. Okay, that’s closer, still no cigar though. I’m going to make an adjustment and tweak that definition...
Here’s mine: "Fan art is a tribute to a person, character, costume, item, or story that was created by someone other than the artist.”
I reckon that pretty much sums it up. Although the word ‘fan art’ has ‘art’ in it, I put ‘tribute’ as I feel like art has that stigma of just being drawings. This way it influences the person to think of more than drawings, such as songs and architecture.
Alright, now we have that definition, let’s go back to my story.
The instagram illustrator was interested in an influencer marketing campaign and working together, so off we went. As a side project, I was looking into search engine optimisation, which refers to looking at her ranking on Google. She doesn’t use the musician’s name on any of her designs, so it made sense that she didn’t come up when you searched for any products under their name. I was determined to try and use their name to increase her ranking. However she omitted their name on purpose, not wanting to get in trouble with their legal team. As we were both pretty inexperienced in this area, I decided to reach out to the musician myself to ask.
I emailed their lawyers directly. After a month or so, I decided we weren’t going to get a response and we left it. However to my surprise, we got a response from the ‘top dog’ per say of their trademark representation. To paraphrase, Lawyer X I’ll call them, said something on the lines of:
“While (insert musician) loves and respects their fans, they doesn’t give you permission to use their trademarks or are in the position to produce fan licenses”.
So, to say we were disappointed is an understatement. Determined not to be defeated, I emailed asking a variety of questions on how fans can produce art of the musician without getting sued by their idol, essentially.
Let’s pause here and look at why fans produce these tributes. Obviously the intention is never to step on the rights of the original owner of the muse they’re using. The #1 reason is to show affection to the thing they’re appreciating. Another common factor I’m seeing is that artists want to improve their skills in a particular area. For example, it’s easy to get reference pictures of Justin Bieber and refine your illustrating skills by recreating it. If you sold it, you would be learning how to be an entrepreneur, from the creation all the way into the customer service aspect of it.
So there’s really no malicious intent. They’re not going into this wanting a legal battle.
Anyway, I’m sure you’re wondering how Lawyer X responded to my question of how to find a balance of respecting both fan art and trademarks. He responded saying it was a conflict of interest to advise me as the musician was their client. Anticlimactic much?
In hindsight, that makes sense. It didn’t at the time, but now I understand how he doesn’t want to advise me how to get around the musician’s trademark when it’s his job to protect it.
But let’s rewind. Just before this matter, other fan art shops for this musician were getting their items taken down on Etsy. So obviously someone was on the warpath, but is it the musician themselves?
Short answer is no. But the long answer is yes.
You’ll understand by the end of this series.
Next episode we’re looking into the juicy bit - copyright and trademark law and how that applies to fan art. I hope I have you hooked with this first episode as we start exploring the question of... is fan art really illegal?
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.