Can You Use Drawings From Devianart if You're Not Monetizying
This article is part of the Legalities series by OW&E's Linda Joy Kattwinkel and was originally published as Legalities #43.
Many artists create artwork based on their favorite cultural icons, such as comic book figures, or fictional characters from books, movies and television shows. Sometimes these new works are classic "fan art," meaning that they celebrate the original characters. Others are humorous caricatures, or show the characters doing or saying things that are inconsistent with their official personalities, such as children's characters swearing or engaging in sexual activity. Increasingly, artists are also creating mash-ups of popular icons that combine character attributes from two different fictional worlds. A recent example combined the characters and worlds of Dr. Seuss and Star Trek (more about that below).
In copyright parlance, these types of artworks are called "derivative works" because they are based on (derived from) and incorporate elements from another work. Unauthorized derivative works will be deemed copyright infringements, unless the original work is not protected by copyright (it could be old enough that copyright has expired, or it could be a U.S. government work), or the derivative work qualifies as fair use. (For purposes of this discussion, I will refer to all derivative works based on famous characters as "derivative character art.")
[Note: if you are doing artwork depicting living persons (as opposed to fictional characters), rights of publicity are involved. Please see Legalities 3 and 7 for discussions of rights of publicity.]
Artists may sell their derivative character art at conventions. Often, artists also post their derivative character art on social media and print-on-demand platforms such as Zazzle, DeviantArt, and Redbubble, where people can purchase merchandise imprinted with the artwork. While this practice is widespread, it is not necessarily legal.
What is fair use?
I often hear from artists that they believe their derivative character art is legal because it is "fair use." While the concept of "fair use" is widely invoked, unfortunately it is also widely misunderstood. "Fair use" doesn't mean what we would normally think of as "fair" in the usual sense of the word. For example, many artists believe that it is fair to create derivative character art because they are not plagiarizing, that is, they are not claiming to have created the original characters. Or they think it is fair to depict famous characters because they have become cultural icons and thus part of everyone's social and political language. Many believe that any use of famous characters is fair use so long as it is not "commercial."
None of these ideas matches what qualifies as legal "fair use" under copyright law. The fair use doctrine under copyright law does not give carte blanche protection from infringement to entire genres of derivative works like "fan art" or "mash-ups," or to "noncommercial" depictions of famous characters. Instead, legal fair use involves a complicated analysis of four factors, which are weighed against each other in the context of the specific facts of each case. The four factors are:
(1) The purpose and character of your use of the derivative work. This factor looks at two things: how your work incorporates the original work, and how your derivative work is used. Editorial works that comment on the original work, or are "transformative" (more about this below) weigh in favor of fair use. Commercial/for profit use weighs against fair use; educational, editorial and noncommercial uses weight in favor of fair use.
(2) The nature of the original copyrighted work. If the original work is fictional, that weighs against fair use; if it is more fact-based, that weighs in favor of fair use.
(3) The amount and substantiality of the portion of the original work you've incorporated into your derivative work. Using more than necessary weighs against fair use; using only as much of the original as you need to accomplish your purpose weighs in favor of fair use.
(4) The effect of the use of derivative works like yours upon the potential market for the copyrighted work. If your type of use competes with the economic market (or the potential economic market) for the original, that weighs against fair use. If your work criticizes the original, however, any negative economic effect that criticism might have does not count against fair use.
See Legalities 30.
To make it even more complicated, these four characters are not necessarily weighed equally. In certain circumstances, some of them will be more important than others. In cases involving unauthorized derivative character art, factors 2 and 3 nearly always weigh against fair use, because fictional characters receive strong protection (Factor 2), and derivative character art needs to depict a lot of the original art in order to be recognized as referencing the particular character (Factor 3). Courts will focus on factors 1 and 4 as the most important considerations to determine if your derivative character art is fair use. Derivative character art often fails the test.
Factor 1: the purpose and character of the art
Factor 1 is often the most important, but also the most difficult fair use factor to assess. In the context of derivative character art, here are three common mistaken beliefs ("myths") I hear from artists:
Myth # 1. If my work is funny, it qualifies as fair use
The concept of fair use has a long tradition in U.S. copyright law. It grew out of a desire to ensure that copyright doesn't prevent people from exercising their free speech rights to criticize or comment on copyrighted works. Fair use encompasses the concept of "parody" because it fits within the scope of criticism. However, as with "fair use," "parody" in copyright law does not match our common understanding of the term. Merely that your art is humorous does not make it a legal "parody."
Under copyright law, "parody" has a specific limited definition: to qualify as legal parody, the new work must specifically mock the underlying original work. This rule was confirmed in a 1997 case brought in Los Angeles by the Dr. Seuss estate against a book called The Cat NOT in the Hat! / A Parody by Dr. Juice, which used images and text based on Seuss's books to mock the O.J. Simpson trial.
The Ninth Circuit Court of Appeals (the federal appellate court for California and other western states) held that the self-proclaimed "parody," while clearly clever and humorous, nevertheless was not legally a fair use, because it did not criticize or comment directly on Dr. Seuss's original work; it merely used Dr. Seuss's work as a vehicle to comment about something else. The court explained that broadly mimicking Dr. Seuss's characteristic style is not the same as holding Dr. Seuss's style itself up to ridicule. The Dr. Juice book simply retold the Simpson tale using the expressive elements of Dr. Seuss "to get attention or maybe even to avoid the drudgery in working up something fresh."
Myth #2: My own artistic expression makes it fair use
I often hear artists assert that their derivative character art is not infringing because they have drawn the characters themselves (as opposed to digital or mechanical copying), or have reinterpreted them in different media. Many derivative character artworks involve highly skilled artistic expression by the derivative artist: they depict the famous characters in a new way through their own artistic style, and may include lots of new artwork along with the character, such as dressing them in new costumes or showing them in different settings or situations. This alone does not qualify as fair use.
Over the past several years, fair use jurisprudence has been focused on a concept of "transformative" use. If a derivative work is deemed transformative (under factor 1), that will be given so much weight in favor of fair use that the other three factors will hardly matter. Unfortunately, the meaning of "transformative" is much less clear than the legal definition of "parody." Courts describe transformative works as using the original work as "raw material," and adding "something new, with a further purpose or different character, altering the first with new expression, meaning, or message." Works that "merely supersede the objects of the original creation" do not qualify.
While this sounds like new artwork or artistic style should qualify as transformative, that is not the case. There has to be something different about the purpose and message of the new artwork that makes it distinct from the meaning and messages of the original. See Legalities 30. Derivative character art, especially fan art, rarely does this. The whole purpose of fan art is to depict the same characters, albeit in different ways and different settings. Sequels to famous comic books, movies or television shows, while they include completely new invented plots and artistry, continue in the same genre of the originals, and thus are not considered legally transformative. The same is true for depicting famous characters behaving or expressing opinions that differ from their original natures. While there is an argument that this is not the same expression or message, such depictions are akin to The Cat NOT in the Hat: they are still being used for the same purpose, to trade on the fame of the characters to get attention.
Myth #3: Mash-ups are fair use
What about when artists create new characters by combining aspects from two different original works? From one point of view, such new character mash-ups are not the same as the original characters in either of their respective genres, and thus new expression, purpose and character has been created. This is the conclusion a federal trial court in California came to in a recent lawsuit also brought by the Dr. Seuss estate. The defendants created a book based on Dr. Seuss's famous book Oh, The Places You'll Go! called Oh, The Places You'll Boldly Go!, which depicted Star Trek characters in closely mimicked illustrations from Dr. Seuss books.
The court described the new Boldly book as transformative because it combined "into a completely unique work the two disparate worlds of Dr. Seuss and Star Trek." Seuss's rhyming lines and striking images were copied in the mash-up, "but the copied elements are always interspersed with original writing and illustrations that transform [the original book] pages into repurposed, Star -Trek-centric ones."
On appeal, however, this holding was reversed. On December 18, 2020, the Ninth Circuit issued an opinion concluding that the mash-up of Dr. Seuss and Star Trek did not qualify as transformative fair use. Here's how the Court began its opinion:
"In Dr. Seuss's classic book, Oh, the Places You'll Go! (Go!), the narrator counsels the protagonist on a path of exploration and discovery. The book closes with this note of caution:
I'm sorry to say so
But, sadly it's true
That Bang-ups
And Hang-ups
Can happen to you.
If he were alive today, Dr. Seuss might have gone on to say that "mash-ups can happen to you."
The Court explained: "the addition of new expression to an existing work is not a get-out-of-jail-free card that renders the use of the original transformative. . . .Absent new purpose or character, merely recontextualizing the original expression by 'plucking the most visually arresting excerpt[s]' of the copyrighted work is not transformative." While Boldly may have altered Star Trek by sending Captain Kirk and his crew to a strange new world, that world, the world of Go!, remains intact. Go! was merely repackaged into a new format, carrying the story of the Enterprise crew's journey through a strange star in a story shell already intricately illustrated by Dr. Seuss. . . . Go! was selected to get attention or to avoid the drudgery in working up something fresh."
Notice how both of the Ninth Circuit Seuss decisions denigrated the mash-ups, calling them an almost lazy decision by the artists to trade on the popularity of Dr. Seuss's works, instead of developing their own creative expression. The sophisticated artistic skill involved in mimicking the original art so well actually counted against perceiving the mash-ups as transformative fair use.
Factor 4: Monetizing increases risk
The fourth fair use factor – the potential harm on the economic market for the original work – played an important role in the Ninth Circuit's reasoning in both Seuss cases. This is because "potential" means that courts must address not just the extent of market harm caused by the particular derivative work being challenged in the lawsuit (which can often be minimal), but also whether unrestricted and widespread creation of similar unauthorized derivative works would result in a "substantially adverse impact" on the copyright owner's potential economic market for the original.
The potential market for copyrighted works includes the exclusive right to allow others to make derivative works. In the Seuss cases, it was easy to determine that allowing similar unauthorized works would harm that market, because the Seuss estate has licensed many similar derivative works, including many based on the same book, such as Oh, The Things You Can Do That Are Good For You!; Oh, the Places I'll Go! By ME, Myself; Oh, Baby, the Places You'll Go!; and Oh, the Places I've Been! A Journal. The Seuss estate has also collaborated "to apply Seuss's works to new creative contexts," such as the television and book series entitled The Wubbulous World of Dr. Seuss, a collaboration with The Jim Henson Company (famous for its puppetry and the creation of other characters like the Muppets), and toys combining Funko Inc.'s designs with Seuss characters.
Many owners of other famous characters have also developed similar markets for derivative works (think of all the movies, t-shirts, action figures and other toys based on comic book characters).
This does not mean, however, that you will be safe monetizing your derivative character art if the characters involved have not been widely licensed for other derivative works. The legal mandate to look at harm to potential markets includes considering whether there is a commercial market the copyright owner hasn't yet exploited. Courts will look at how other copyright owners have licensed similar works to determine if such a market is available, even if the particular copyright owner in the case decides not to exploit it: "the law does not limit the scope of the relevant market to products that are already made or in the pipeline. . . Seuss certainly has the right to the artistic decision not to saturate those markets with variations of their original." Indeed, by monetizing your fan art, you may be demonstrating that there is a potential market for derivative works.
That many others are doing it doesn't make it safe
The internet is full of derivative character art, including on many social media and print-on-demand sites. Fan art is also ubiquitous at many comic conventions. Artists often assume that means it is safe to create and sell their own derivative character art. That is not correct.
Under copyright law, copyright owners have the right to stop infringing derivative works. They can send you a cease and desist letter politely asking you to stop; they can send DMCA (Digital Millennium Copyright Act) take-down notices to the online sites where you display your work (see Legalities 34), or they can sue you for infringement (which can be very expensive. In addition to injunctive relief to stop the infringement, remedies include monetary damages from $750 to $150,000, and reimbursement of the copyright owner's attorneys' fees, as well as you own attorneys' fees and costs of defense).
But copyright owners also have the right to grant permission to others to use their copyrighted works. They can do so by explicitly granting a license, or implicitly, by deciding not to take action against certain infringements. Copyright owners can pick and choose which infringements to allow, whether to charge licensing fees, and whether to impose conditions on licensed uses. So it is not a defense to one particular infringement that the copyright owner has permitted, or has failed to police, other similar infringements. Moreover, just because you see a lot of derivative character artworks, doesn't mean they have all been done without a license.
Unlike the Seuss estate, many copyright owners have a more tolerant attitude toward fan art. CBS, which owns Star Trek, notably did not join the Seuss estate in the lawsuit against the Boldly! mash-up. CBS features Star Trek fan art on its site and even offers links to other fan sites. See for example, startrek.com/news/fan-art-friday-featuring-some-of-our-favorite-fandom-creations
Many other copyright owners also encourage fan art, but will often have rules for acceptable works which prohibit profanity or other unacceptable content, and limit commercial exploitation. See, for example, DC Comics' rules, which explicitly prohibit mash-ups: https://support.dcuniverse.com/hc/en-us/articles/360035343533-FanArt-Submission-Guidelines. Sometimes the rules require that you give permission to the copyright owner to use your fan art. Faced with numerous DMCA take-down notices, some print-on-demand sites have negotiated licensing deals with the owners of famous characters that will allow their members to create and sell derivative character art if they comply with the copyright owners' respective guidelines. See, for example, Redbubble: https://help.redbubble.com/hc/en-us/articles/360001021543-Current-Brand-Partnerships; Teepublic: https://teepublic.zendesk.com/hc/en-us/articles/360022642254-Fan-Art-Program-Overview/.
For most copyright owners, the main concern is whether your art will interfere with their own projects or licensing programs. CBS, for example, has published guidelines for fan video productions, which limit them to noncommercial films: https://www.startrek.com/fan-films. If authorized licensees complain that you are competing with them, for example, by selling t-shirts without a license while the licensees have to pay for their license to sell clothing, the copyright owner is more likely to take action against you. This means that fine art, such as one-of-a-kind artworks or limited-edition prints, are less likely to be a problem for copyright owners than consumer products.
Best practices
Bottom line, it is very difficult to predict ahead of time whether your particular derivative character art will qualify as fair use. As the Seuss cases illustrate, even the courts considering the same work will come up with different answers. The artists who created The Cat NOT in the Hat! / A Parody by Dr. Juice and Oh, The Places You'll Boldly Go! were quite sure that their book would be fair use. They invested a lot of time and money on that belief. They even had publishers on board for their projects. But the fair use evaluations got very muddy in the courts. In the case of Boldly!, the courts even disagreed with each other.
Given all of this uncertainly, you can limit (but not eliminate) your risk of legal liability for your derivative character art by following these steps:
(1) Research the particular characters you want to depict in your art. Find out who owns the characters, and if the owner has an online site or posted guidelines about fan art, and follow them.
(2) If you want to monetize your derivative character art on merchandise, find a print-on-demand site that has a licensing deal with the copyright owner, and follow the guidelines. If this isn't possible, limit your sales to one-of-a-kind works of art and limited edition fine art prints; don't make your art available on other types of products, including other printed items such as postcards, posters, stickers, or on consumer merchandise such as patches, t-shirts, mugs, etc.
(3) Research whether the copyright owner has sued others for infringement (for example, the Seuss estate is very litigious; CBS/Star Trek, not so much). Avoid provoking the litigious copyright owners; chose characters for your art from more friendly entities.
(4) Don't develop a business model dependent upon selling your derivative character art, especially not based on selling merchandise. The more successful such a business might become, the more likely genuine licensees will object, and the more likely your work will become the target of DMCA take-down notices or infringement claims.
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You are invited to submit questions about this article, or for upcoming Legalities columns. Please send your questions to Legalities@owe.com
Legalities SM is a service mark. © 2021 Linda Joy Kattwinkel. The information in this column is provided to help you become familiar with legal issues that may affect graphic artists. Legal advice must be tailored to the specific circumstances of each case, and nothing provided here should be used as a substitute for advice of legal counsel. Linda Joy is an attorney, painter and former graphic artist/illustrator. She practices intellectual property law, arts law and mediation for artists in San Francisco. She can be reached at 415-882-3200 or ljk@owe.com.
Can You Use Drawings From Devianart if You're Not Monetizying
Source: https://www.owe.com/is-fan-art-legal-fair-use-what-about-mash-ups-copyright-myths-and-best-practices/