PK 137: Is your fan art legal? Let’s ask an IP Lawyer. Interview With IP Lawyer and Indie Filmmaker, Seth Polansky

is-your-fan-art-legal

Is your fan art legal? In this week’s interview, Intellectual Property (IP) lawyer, Seth Polansky, shares his years of experience to help you steer clear of any awkward copyright issues with your artwork

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“Just because you’ve got a stormtrooper pointing out of the picture saying ‘I want you!’ like that ‘Uncle Sam’ thing, you don’t get to use that stormtrooper IP – it’s not fair use.”

~ Seth Polansky, IP Lawyer

Is YOUR fan art legal?

Go to any comic con and you’ll see countless artists selling fan art featuring some of our most popular characters.

From Spiderman to Superman and Harley Quinn to stormtroopers, it’s all there. But could you be breaking the law as an artist by producing this kind of work? And how can you avoid getting slapped with a lawsuit for infringing copyright?

Well, who better to ask than an expert in these matters?

In this interview, we talk with an actual IP lawyer, Seth Polansky, to see exactly where artists stand when making art based on our favorite comic book and game characters.

So, if you’ve ever innocently produced fan art (even if you haven’t actually sold it), you might want to listen closely. Because the advice you’ll get from listening to Seth just might save you a stack of money and help keep you on the right side of the law.

But as well as being an expert in legal matters, Seth is also a pretty awesome indie filmmaker and musician.

So, you’ll also hear about he keeps busy with numerous creative side projects when he’s not helping artists avoid huge legal costs from the big boys.

Is Your Art Legal? Let’s Find Out!

Interview Chapters:

00:00-03:30

Introduction and Overview

Your host, Mitch Bowler, introduces today’s guest, Seth Polansky, who gives you a brief overview of his career as an artist and and IP Lawyer.

He explains why he decided to specialize in this area after finishing law school, and why he’s devoted the past few years to helping artists avoid lawsuits and litigation.

04:01-04:38

What about Seth Polansky’s Other Projects?

When he’s not helping artists stay on the right side of the law, Seth is busy with indie filmmaking projects and music. How does he find time to fit it all in? You’ll find out in this chapter.

05:13-13:46

Could You be Breaking The Law as an Artist?

In this chapter, Seth explains copyright law and clears up any gray areas for artists. So, if you weren’t aware of any of this before, you might want to listen up and take note.

14:35-21:01

How can you Avoid Copyright Infringement?

Knowing what is (and what isn’t) acceptable use of someone else’s intellectual property (IP) can help you stay on the right side of the law and avoid any potential copyright issues as an artist.

In this chapter, Seth clearly spells out what you need to be aware of as an artist if you’re making fan art and asking yourself ‘is your fan art legal?’

And, he explains how you can avoid any potential legal issues.

22:40-24:38

Who should you Speak to First About Licensing?

Many artists don’t have too much experience of legal matters, so knowing who to approach can be tricky when pondering the question ‘is your fan art legal?’.

In this chapter, Seth explains why contacting a lawyer in the first instance is often a very good (an inexpensive) idea and tells you where to find an extremely useful legal contract template for artists online.

25:42-34:52

Seth on Indie Filmmaking and IP Issues

When he’s not busy being a lawyer, Seth is also a great indie filmmaker.

In this chapter, he talks about the projects he’s been working on and reveals what he’s learned about legal issues and making films in the process. Spoiler alert: There are some great film industry anecdotes in this chapter which you won’t want to miss!

35:10-38:23

Seth Polansky’s Advice for Comic Con Artists

Exhibiting your fan art at a comic con but still unsure if it’s legal or not? In this chapter, you’ll find all the info you need to help you stay on the right side of the tracks.

38:39-40:07

What about art based on older intellectual property?

Many of today’s most popular characters have been around for decades, meaning the original concept might be exempt from copyright law.

But how do you know which ones are ok to use? Seth clears up this gray area in this chapter.

40:35-43:14

Conclusion and Where to Find Seth Online

Want to know where to find Seth online and find out if your fan art is actually legal? Here’s the place to be!

We hope this week’s interview with Seth Polansky helps you answer the question: ‘Is your fan art legal?’

Have you ever run into legal issues with any of your artwork or had someone question whether your art is infringing copyright law?

Get in touch in the comments section below – we’d love to hear from you!

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Thanks for listening to our show! We’ll be back next Wednesday morning 8AM EST.

Cheers,

Mitch

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10 Comments

  • Tori says:

    I do appreciate this gentleman coming on. I always want to lean back into trying to sell fan art because I’m just a wee girl that needs extra income and perhaps something is wrong with my work. Who knows. I’m just so frustrated random strangers look but they don’t buy. I only sold one original piece of mine of my abstract art one of my sites via pouch by telling about it to a friend that I sell art online. Sad really.

    • Chris Davies says:

      Hi Tori and thanks for getting in touch. I totally understand where you’re coming from and it’s easy to see why so many artists produce fan art to generate extra income. In your case, it’s probably worth thinking about who you’re marketing your art to, and whether perhaps you could produce something different to appeal to that market. Much as I love abstract art, it’s not always easy to sell this to people who prefer to see figurative stuff etc., so you might want to adapt your subject matter accordingly. If you haven’t already, I’d definitely recommend listening to our podcast with Kirsten Zirngibl: https://www.pencilkings.com/da-vinci-syndrome-synesthesia/ She’s an artist working in a very particular niche (ie. abstract fractal art), and it’s fascinating to hear how she’s built her career by aiming her work at a specific audience.

  • Marius C says:

    I’m curious what Seth would have to say of the likelihood of any of these companies prosecuting someone. I fully agree with all of his assertions, but I already know that most artists (even some that are fully aware of the legal issues involved) consider it a matter of artistic liberty to create these things. “I’m showing my appreciation for the content/character/etc.” is normally the justification given, which I don’t doubt. So is perhaps that why we haven’t yet seen any major, sweeping litigation brought against artists that sell copyrighted work? The fear of a PR backlash from other fans of both the IP and the artist who will see this as a corporation limiting artistic freedom?

    • Marius C says:

      Follow up to that; at the end of the episode, Seth mentions the very ACT of drawing a copyrighted character as being the “infringing act”. However, surely we as artists can’t leave in fear that if we pen down something in a notebook, or maybe even upload a drawing we did of a character we like to social media, that we’re going to be targeted? Or just for the sake of a personal sense of morality, is it really “theft” to just take part in that which you enjoy? If not in the letter of the law then at least in the pleasure of art for art’s sake?

      • Chris Davies says:

        Hi Marius and thanks so much for getting in touch. I think it really boils down to how you treat that character in the first place and, more importantly, whether you attempt to sell your work. For example, if you just draw a straight-up representation of a character such as Spiderman, a Dalek or a Stormtrooper and put this up for sale, then you’re probably leaving yourself vulnerable to litigation. However, if you’re simply drawing in your sketchbook and studying how to draw these characters as part of your learning process as an artist, then you’ll probably be ok – even if you decide to share these on social media etc.

    • John Zyski says:

      He mentions this in the interview, that they might pick some big infringers (is that a word) and make a big scary example.

  • Sarah D says:

    So I have a question.
    What is your take on grey area companies or companies which encourage their fans to produce fanwork? For example Blizzard tends to be very supportive of fanart and in the wake of Overwatch often re-posts fanart on their official social media outlets even when they know that fanart is for sale online. The only real thing that they have taken issue with is the creation of fanwork which puts their characters in compromising positions. Those people they will demand the work to be taken down, not that I blame them.

    Another example is the comic Homestuck in which creator has gone down in writing saying that: He supports one-off fanart. This is when you draw a commission for a single individual, sell it to them, but do not make prints. So you sell it once and never again. For prints he’s asked that they only be sold through him and his official table at conventions.

    So are companies you know are in support ok to make fanart for, so long as you do research on what they say is ‘ok’ and ‘not ok’ or is it just never ok. If the former is true is there a safer way to sell fanart for these companies perhaps. For example collecting evidence of where it was officially states (in interviews or on their website or by asking through email) their stance on fanart?

    • Chris Davies says:

      Hi Sarah and thanks for getting in touch 🙂 That’s a great question which I’ll do my best to answer. If a company (such as Blizzard) actively encourages people to create fanart and share it on social media etc., then you should be ok provided you’ve read all the terms & conditions on what is/isn’t considered fair usage. The grey area occurs when you produce fanart based on characters created by companies who you haven’t consulted first and then go on to sell this art at conventions etc. Examples of this would be anything licensed by Disney or the BBC etc. I found this article regarding fan art and legal issues on Chris Oatley’s site (who will also be one of our podcast guests very soon) and it’s well worth watching the video at the top of the post: http://chrisoatley.com/fan-art/ Hope this helps 🙂

  • John Zyski says:

    Very informative. I created a blog post about this as it is exactly what I have been researching on my own.

    And, I met Seth a couple times, and bought a copy of his DVD.

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