Fan art is a popular form of creative expression, especially in the illustration, design, and craft business communities. However, when fan art is used for printing and commercial sale, copyright issues become a concern. So, does selling fan art violate copyright? This article will help you understand the legal regulations under the Intellectual Property Law and how to mitigate risks when doing business with fan art.
What is fan art?
Fan art is a work created by fans based on a pre-existing work. Fan art content often relates to:
- Characters from animated films and movies
- Images from comics, novels, and games
- Portraits of celebrities
- Symbols, mascots, or brand identities
Examples: Recreating anime characters in one’s own style, designing movie character posters, or drawing portraits of artists for sale.
Legally, fan art is considered a derivative work, meaning it is a work created based on an original work that is already protected by copyright.
Is fan art protected by copyright?
According to Vietnamese law, derivative works can still be protected if they meet certain conditions.
According to Clause 2, Article 14 of the 2022 Intellectual Property Law: “A derivative work shall only be protected under the provisions of Clause 1 of this Article if it does not infringe upon the copyright of the work used to create the derivative work.”
This means that fanart can be protected by copyright if it contains independent creative elements (drawing style, composition, new ways of expression, etc.). However, this protection does not legalize the unauthorized use of the original work. If fanart uses copyrighted images or characters without permission, the work can still be considered a violation.
In other words, you have rights to your own creation, but you do not have the right to exploit elements belonging to the owner of the original work without their consent.
Is selling fan art a violation of copyright?
Although fanart is a popular and well-received form of creativity, using it for commercial purposes requires special attention to legal issues. So, does creating fanart for sale violate copyright?
According to Article 20 of the 2022 Intellectual Property Law, copyright owners have important property rights, including:
a) Creating derivative works;
b) Performing the work before the public directly or indirectly through sound recordings, video recordings, or any technical means at a location accessible to the public, but where the public cannot freely choose the time and parts of the work;
c) Directly or indirectly reproducing all or part of the work by any means or form, except as provided in point a, clause 3 of this Article;
d) Distributing, importing for distribution to the public through sale or other forms of transfer of ownership of the original or copies of the work in tangible form, except as provided in point b, clause 3 of this Article;
d) Broadcasting or communicating the work to the public by wired, wireless, electronic information networks, or any other technical means, including providing the work to the public in a way that the public can access at a location and time of their choosing;
e) Renting the original or copies of cinematographic works or computer programs, except where the computer program is not the primary subject of the rental.
This means that any activity exploiting the economic value of the original work, including adaptation, redrawing, printing, and commercialization, is under the control of the owner.
When fanart is used for commercial purposes, related activities may be considered commercial exploitation of the derivative work. Specifically, the following cases pose a potential risk of copyright infringement:
- Recreating characters and images from films, comics, games, or works protected by copyright.
- Using fan art to print on products such as posters, t-shirts, keychains, stickers, or other commercial items.
- Selling the product on social media, e-commerce platforms, or directly at fairs and events for profit.
In these cases, if the creator has not obtained permission or authorization from the owner of the original work, the aforementioned commercial exploitation may be considered copyright infringement under the Intellectual Property Law.
The above is an article titled “Is Selling Fan Art a Copyright Infringement?”. To minimize legal risks, you should increase your own creative elements, avoid copying originals, and proactively seek permission or purchase usage rights when necessary.
Sincerely,
FAQ
You can legally sell fanart when you have permission from the copyright holder, or when the copyright protection for the original work has expired. Additionally, fanart that is purely inspired, clearly creative, and does not confuse with the original work will reduce legal risks.
Violators may be forced to remove the product, destroy the goods, compensate for damages, and face administrative penalties as prescribed by law. In cases of large-scale violations or high illicit profits, more serious liability may be considered.