Is Selling Fan Art on Etsy Legal? Fan Art Case with Crucial Notes
Etsy is one of the best online shopping platforms that bring your items to customers worldwide. Therefore, it is a conspicuous high-profit marketplace for those who sell especially handmade products, vintage items, and craft products.
However, Etsy has policies that you must not break, as in every webshop. Because the last thing you want when selling on Etsy is to be prohibited from listing your items. Selling fan art can be one of these precarious places if you do not follow the proper guide.
So, selling fan art on Etsy is legal? We will dive into the legality of selling fan art on Etsy. Keep on reading.
Table of Content
What is Fan Art?
The term “ fan art” means artwork based on famous works of fiction (such as books, dramas, movies, etc.) created by fans. Fan Art started to be made primarily by fans of science fiction movies such as Star Trek in the 1970s, and its popularity gradually increased. In the following years, the subject of fan art spread to other film genres and books.
Today, fan art is created in numerous areas, from cartoon characters to stars of famous movies and superheroes. There are millions of fan artworks according to various art sites.
When the demand is high, the selling of fan art becomes a potential high-profit niche among Etsy Seller. Furthermore, sellers can easily obtain a good conversion rate on Etsy.
Tomy is a seller on Etsy who sells personalized coffee mugs. He is aware of the interest in fan art and wants to convert it into sales. But he has a very critical question in his mind: Is it legal to sell fan art on Etsy?
The Legality of Selling Fan Art on Etsy
It's a great idea to make money selling something you have made or adorning your products with artwork to make them appealing to your customers. However, when it comes to selling fan art, there are some terms that you should pay attention to and know: copyright and infringement.
What is Copyright and How to Apply For it?
A Copyright is a kind of intellectual property that gives its owner the sole right to copy and distribute an imaginative work, usually for a restricted time. Furthermore, a copyright is an automatic right known globally. In other words, you don’t have to apply to get it.
Let’s suppose that you are a graphic designer and you designed a banner for Valentine's Day. You now own the copyright for this banner. You decide which person or institution can use it or not. Moreover, you can limit this use and turn it off for commercial use. Or you can allow commercial use and earn money here.
What is Etsy’s Copyright Policy?
It is vital to learn how Etsy deals with copyright disputes and what Etsy sellers can do İf you are selling fan art on Etsy. Otherwise, you may find yourself in a sticky situation. Sarah Feingold, Etsy's in-house attorney, explains that
“ Under United States copyright law, only the legal or beneficial owner of an exclusive right under copyright can take action against possible infringement. That means that it is up to the copyright owner, and not a concerned third party, to decide what can or should be allowed”
It can be concluded that Etsy does not have a position to review your products in terms of copyright. This is also valid for selling fan art. Etsy only examines your products in case of a complaint.
What is Copyright Infringement?
An infringement is a violation, a breach, or an unauthorized act. When you do infringement against copyrighted works, it means you reproduce, distribute, performed, publicly displayed, or made into a derivative work without the copyright holder's permission.
So, if Tomy combines Disney characters ( or any other copyrighted works) with his personalized mugs without the owner's permission, he violates the rule and gets punished. Thus, he should discover the legal ways to sell fan art on Etsy.
Tomy does not want to break Etsy policies because a complaint is sober according to Etsy’s Copyright and Intellectual Property Policy. If Tomy materially misrepresents that a product or activity infringed on an intellectual property right, he may be liable for damages (including costs and attorneys’ fees).
What else can Etsy sellers not sell without a license and/or permission?
Tomy was worried about copyright and was a little confused. What other products along with fan art can Tomy not sell on Etsy without a license or permission from the copyright or trademark owner?
- Selling fan art
- Book titles or excerpts from books
- Comic book characters
- Cartoon characters
- Other intellectual property owners’ artwork like paintings, unless they’re in the public domain.
- Digital art and clipart that you bought that doesn’t have a commercial license.
- Disney characters
- Superheroes related art
- Celebrity names and images
- Professional sports teams logos or names
- Company logos
- Photos that the photographer didn’t permit to use
- Social media logos
Here's some unfortunate news for Tomy. This is NOT a complete list, and it's just to get him started.
Myths for Selling Fan Art
It is imaginable to see the selling fan art on Etsy and many online shopping platforms. How can these sellers sell fan art if selling without permission from the copyright holder is subject to criminal sanctions? You may hear some myths when you ask them. Let's examine these untrue legends.
If my fan art piece is funny, it qualifies as fair use
You may consider your fan art piece as a parody and think that you fall within the scope of fair use. Because parody is fair use of a copyrighted work when it is a humorous form of social critique and erudite criticism in which one piece mimics another. Examples from the real-world case:
The court found that it 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.
All intellectual property owners have the same ideas regarding fan art
This is an untrue rumor. Because some creators see the sale of fan surplus of their works as a form of advertising and allow it to be used. Some copyright holders do not pursue whether their works are used or not.
However, some property owners never allow this situation and detect and sue those who violate copyright. Therefore, believing that everyone agrees can seriously mislead you.
Fair Use always protects fan art.
The Fair Use Doctrine is complex and can be unforeseen. If you are sued when selling fan art on Etsy then a case goes to court and the fair use defense is likely unpredictable.
Just because an artist is a fan and creates art, does not necessarily mean a court would find that this fan art is protected by fair use.
How to Sell Fan Art on Etsy Legally?
As a general rule, fan art is illegal to sell on Etsy or anywhere else if the seller doesn't have the proper legal permission from the copyright and trademark. However, Tomy seeks solutions to make selling fan art on Etsy is legal.
First, he wants to explore whether there are fan art related items that are sold or not. At this point, Tomy decides to use the EtsyHunt Product Research. He determined to find out fan art mug items related to “Sonic the Hedgehog Movie”. Then Tomy typed “Sonic Mug” to the EtsyHunt product search bar and analyzed the results:
Moreover, Tomy filtered the listed items by sales of more than 1. Consequently, he realized that some products that contain fan art. He clicked the product title to analyze product details:
Tomy can also examine the product performance by these categories.
So Tomy uncovered that selling fan art is possible on Etsy. But he needs keywords.
Keywords for Fan Art on Etsy
Tomy now wants to explore the words used by Etsy sellers in product descriptions. EtsyHunt Keyword Tool is undoubtedly the best tool for this. Hence, he typed “ fan art” on the search bar and examined the results:
Tomy can observe the Keyword Analysis results from Google Search Trend and also Google Shopping Search. What’s more, the keyword tool enables him to see the county distribution chart.
When Tomy scrolled down the page he found “ Top 100 Best Selling Products Analysis”. Sellers can analyze the sales ranking of Top100 hot-selling products using the keyword “fan art” here. Moreover, when Tomy hovers over each bar on the graph he will discover the specific product.
There is also an additional part consisting of 4 stats:
- Main Category: Most common category among the top 100 listings ranking for this keyword.
- Avg. Price: Average price for the top 100 listings ranking for this keyword.
- Processing Time: Average Processing Time for the top 100 shops ranking for this keyword.
- Shops Competing: Total number of unique shops among the top 100 listings ranking for this search term.
To sum up, Tomy gathered all necessary keyword ideas related to fan art. So, If he decides to sell fan art on Etsy, these data will be helpful. However, if there is no complaint about copyright infringement, Etsy has no way of intervening. Therefore, listing their products does not make selling fan art legal on Etsy. So how can Tomy sell fan art without violating copyright?
Tips and Tricks for Selling Fan Art on Etsy
Tomy must find a way to legally sell fan art on Etsy, as he may pay a large number of fines and face various legal penalties. Hence he should follow certain things:
- The best way to sell fan art is to apply and ask for copyrights directly from the original owner. However, bear in mind that the possibilities that you will acquire the copyrights are somewhat diminutive if you have a small business.
- Research whether the copyright owner has sued others for infringement. Avoid provoking the litigious copyright owners; choose characters for your art from more friendly entities.
- You can also sell your items in slight amounts that will keep you off the radar. Anything that goes small is less conceivable to be caught. However, if your chosen website is Etsy, you might get discovered
FAQs for the Selling Fan Art on Etsy
It is evident that many questions are waiting to be answered on such a complex subject. We have compiled and answered some of them for you.
Can I sell fan art on Etsy by crediting to the original creator?
As good as it sounds, it won't save you. Because it is stated that crediting to the original creator will never protect you from copyright law.
Will Fair Use protect me if I change the original work while creating Fan Art?
No. According to Etsy Seller Book, it is explained in Fair Use Doctrine that
“There are no rules outlining a specific percentage to change in order for a work to be deemed protected by the Fair Use Doctrine.”
What if Etsy Seller repeats Infringement?
Etsy terminates selling privileges of members who are subject to repeat or multiple notices of intellectual property infringement in appropriate circumstances and at Etsy’s discretion
Selling fan art on Etsy can be a paramount niche with high-profit potential for Etsy sellers. However, it is not as straightforward as it seems. Because if you have not obtained written permission or license from the intellectual property owner, you are likely to breach copyright. In this case, neither Etsy nor any other platform will protect you. You can both lose your Etsy shop and encounter solemn fines.
However, if you still want to sell fan art on Etsy, drop the myths and act according to the facts we have explained in our article. Furthermore, bear in mind that a fan art for sale on Etsy doesn't necessarily mean it's legit.
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