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January 11, 2013
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Selling original art with FREE fan art illegal?

:iconartshell:
artshell Featured By Owner Jan 11, 2013  Student Digital Artist
[copied from my journal]

I know that it would be illegal or I would get in trouble if I sell fan art in America if I don't have permission or copyrights to any particular show. But what if I sell original art and give away fan art for free?

All my items on my online shop ( www.CuteAndCoolDesigns.etsy.com ) are original, EXCEPT, the Adventure Time Finn and Jake friendship necklace offered free with a $30 purchase.

6 months ago, I made the Finn and Jake friendship necklace and many people are going crazy for them. But it wasn't right for me to sell so many of them. So I stopped selling them as an individual item, and had an idea to give it away for free with a purchase $30 worth of my non-fanart items in my shop.

You can see the Adventure Time special deal I mentioned here: [link]

So I'm wonder, is it illegal to give fanart as a giveaway for purchase of non-fanart materials? If it is, then I'll stop

Any answers, comments and suggestions would be greatly appreciated ^^
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:icontylon:
Tylon Featured By Owner Jan 12, 2013  Professional Artist
This is one of those shady areas of the law. I personally view it as a sketchy deal; what if somebody then wants to buy the item just for the fanart? It is a profit. You are using it as a promotion to bring in people to buy your stuff. Granted a lot of people do that.

I'm having some concerns with my crafts as well and making sure I'm researching my terms- I am very involved with the law and legality concerns personally- I studied it in college. I made my own pillow pet idea for a concept and for sheer fun (I made my own idea with a tie rather then velcro and this and that to make it more me and different) and people now want to buy it- and I refuse to sell anything based off something else without the proper legality claims backing me up seeing the pattern is similar to that of the actual Pillow Pet. So for all those who inquired- I tell them simply it was a concept for fun, for my own enjoyment. I do not intend or plan on selling any because of legality issues- until I either hear back from the company (I contacted Pillow Pets with some questions) or I have full coverage and legal right to do so. So far each individual has respected me for abiding by the law and still continued to place an order for an alternative product because they enjoyed my work. If you are serious about selling fan art you can contact the creator. It might sound crazy but I actually had a friend who asked permission from a gaming company to make up a t shirt with their character and the company respected him so much they asked if he would intern with them for a summer because they liked his work and his morals. They also gave him the permission to sell the design. So it worked wonders for him. It shows you are taking that effort and sometimes it can work out well. Other times not so much.

I steer clear of selling fanart and fan-based works for profit because you never know when somebody will want to make a quick buck off you and sue you. I know people who have had this happen to them and it is not something you want to mess with. For fan art and exchanges I would recommend craft swaps and craft trades over selling. There is no profiting, it is more of a personal task- and nobody is gaining really anything from it other than the joy of their fandom. I see a lot of people going this way to avoid the larger legality concerns of selling.
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:iconpreciouschattel:
PreciousChattel Featured By Owner Jan 12, 2013  Hobbyist General Artist
It's illegal, but you don't see Jessica Nigri getting sued, do you? No one checks individual artists websites. If you get caught, it's because you're waaaay too famous and one of the companies notices.
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:iconpuppy-dangerous:
puppy-dangerous Featured By Owner Jan 12, 2013  Professional Artisan Crafter
Er, I think maybe this is in one of those gray areas where it would be up to a court to decide.

You aren't selling it directly, but you're still profiting off of it, so I'm not sure how cartoon network would look at that.

I mean, really, if you want to be safe, you go ask them...
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:iconvineris:
Vineris Featured By Owner Jan 12, 2013  Professional Traditional Artist
The problem is distribution, not sales. If you think about file-sharing services, they don't normally charge you for downloads, if they make money it's indirectly, off advertising. So why did copyright holders go after them? Because the right to distribute something belongs to the copyright holder. And fan art is derivative art, and the copyright for derivative art is held by the original copyright holder except in Fair Use cases.

It's not a matter for criminal law, though, so "illegal" isn't really the right term to use. You are violating the copyright holder's rights by distributing fan-art of their work, but it's up to them to take action against you. Will they? Probably not, but you never know. They have the right to.
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:iconglori305:
Glori305 Featured By Owner Jan 12, 2013
Technically, as soon as it is not for your own personal use, it is illegal.

And since how the law works is they can sue you for the money they would have made if you had not offered your product, you can still be sued for monetary damages.

On the reality side of it, if they noticed, you would most likely just get a "cease a desist" letter, telling you to stop or they will sue. As long as you listened to that letter, they would not likely persue further legal action.
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:iconkyteglory:
KyteGlory Featured By Owner Jan 12, 2013
If you're using them as promotional items, then you're still making money off of them, so I don't really see how it's any different from just selling them directly.
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:iconaapis:
Aapis Featured By Owner Jan 12, 2013  Professional Interface Designer
Then you're just an asshole.

If you were selling it, you'd be a rich asshole.
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:iconsiantjudas:
siantjudas Featured By Owner Jan 12, 2013   Digital Artist
That would only be the case if you allowed people to receive the item without buying anything.
Also, even then, you're using it to promote your business. Which even if you get no direct monatary gain out of it, the fact that you are using it to further your own business goals gives it an abstract value which is also infringing on the intellectual property rights. It would be like if you created a commercial using copyrighted material. The commercial itself gets you no money, it's the effect of the commercial's promotion that gets you money, and you wouldn't be allowed to use copyrighted material in a commercial.
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:iconkizziesama:
Kizziesama Featured By Owner Jan 12, 2013
Technically, you're not really offering it for free since you require a $30 purchase to get it ;P
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:iconscyoni:
Scyoni Featured By Owner Jan 11, 2013  Hobbyist General Artist
I'm not sure if it would be, it's kind of a strange area because you are requiring that they pay a certain amount to get it...

If it's that successful, maybe you should contact the copyright holder and see if you can work out a deal? ;)
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