Blackrosekane89Featured By OwnerJan 15, 2013Professional General Artist
It's kind of like drawing celebrity portraits, or fan art. Technically it is illegal, but as long as you're not selling it, they usually don't mind.
Look at E.L James (the author of 50 shades of grey). 50 shades of grey was originally a fanfic of Bella and Edward (Twilight) when she started selling it she changed the names. Stephenie Meyer could have sued for using her characters for the original fan fic, but opted not to. No telling
Deviantart posted a video from a convention about this. As long as your work doesn't compete with the company it's usually fine. In other words, as long as you don't try making money off of it, you're safe.
It isn't art theft, unless (keyword: UNLESS) if you don't credit the original creators or if you sell/distribute it. If it's just for entertainment for fans of the franchise you're writing a fanfic for, you'll be fine, but still CREDIT THE CREATORS OF THE FRANCHISE. That way, you actually WON'T get sued.
If the fan-fiction is only being used for personal entertainment, and not being published for sale or distribution in direct competition with the publication of the copyright owner's original work, it isn't really a problem. It becomes a problem when people start earning money through it. There was a bit of a grey area involving the Internet for a while, but it depends on the visibility of the site where it gets posted and how protective a copyright owner may be of their property.
Fan fiction is a way to show to the creators of original story that their creation has inspired you in a way or another. In most cases fan fiction is just that - a fans way to say "thank you for the story" - with a twist. And I am certain it has been mentioned that writing a fiction does not differ from i.e. drawing your favourite character from a movie or game universe.
Making fan fiction is like making fan art Only it's literature. If you're not making a profit off of it, I don't think anyone is going to cry "theft!" on it. There are entire websites made to cater to fan fiction, so yeah... I think you're good.
Fanfiction being derivative works from an original means the copyright holder of the original has the right to say "I do not want fanworks" and then it would be illegal to make fanart, or fanfic etc.
And some do say this. Robin Hobb the Author for instance forbids fanfiction based on her works so it's best to respect their wishes.
However most copyright holders welcome it, because the more fans they have engaging in the work, the more fans care about the original and you get fandoms and the original ends up making more money from having a large online fan presence.
Generally it's a case of looking up the original and seeing if they mind. I'd say 99% of content doesn't mind, and it's usually only the more obscure ones who seem to say no.
As soon as you are selling it, the person who has the rights to it can sue you.
And they do not sue you for the money that you made, they sue you for the money that they could have made. So if you are selling prints of (to take an example) Superman, for $10 each, and DC is selling prints for $20, and you have sold 100 prints, they are suing you for $2000, because that is what they claim their losses are. And they can toss in their legal fee's on top of that.
Disney is pretty fanatical about their rights, but honestly the most you are likely to recieve is a "cease a desist" letter. If you ignor that, then they will sue you.
But yes, the majority of people selling fanart at conventions are breaking the law, and open to legal action. The fair use lines for paradoy are fuzzy, so some are probably on the sunny side of legality.....if they can afford a good lawyer to defent themselves. Because usually trademark infringement (which is what this comes down to) is a case of who has the better lawyer.
Technically the owner of the original work CAN go after you, but they almost never do. But as long as you don't claim it's part of the official work they usually won't care even if they do know.
Aaaand sometimes that actually falls under fair use.
And in some places it's considered OK legally to make derivative work, and the owners wouldn't pursue you anyway even though they can under the law here.
Copyright violation is pretty much when you take a work that belongs to someone else and reproduce and claim ownership of it. Like if I went into your gallery, saved some of your work, then posted it as mine and/or started selling it on t-shirts that's violation.
In legal terms, your sister is right. The Super Mario franchise and all the content within belongs to Nintendo. If Nintendo so desired, they could sue you for producing fanfiction. But they won't. Because Nintendo does not give a flying shit what you do. As long as you're not making money, and you're just perpetuating images of their characters free of charge, you're actually giving them free advertising, so they have no reason to be upset about fan labour. Since Copyright infringment is civil law, not criminal law, you are only subject to punishment if the victim chooses to press charges.