Selling fanart? Can anyone help me with the some legal aspects of this?

[InkyMilk]

So here's the thing, I have always dreamed of opening my own little etsy shop to sell small merchandise (keychains, bookmarks, stickers, magnets, etc.), and in doing so would use a portion of my proceeds to donate to either St. Jude Children's Hospital or a legitimate breast cancer research foundation. I'm not looking to make a huge business here, but a small shop to challenge myself, get my name out there and ultimately donate to a cause I believe in.

However, I was really hoping to sell mostly fanart, likely My Little Pony, Ninja Turtles, and a few Disney characters, as I both really enjoy drawing these things the most and I know they are most likely to actually sell. My main concern however is legal issues as the bulk of most fanart is simply NOT legal to sell. I have read that fanart sold for non-profit (such as donations) is legal, yet ALL proceeds must be donated which I can't do because if I did that how would I ever break even  for the cost of supplies?

I know people sell fanart all the time at conventions and it's no big deal, and I'm not really good enough to be some kind of threat to these companies, but just the same I want to do this legally. It's been recommended to contact these companies and ask for permission, but I wouldn't even know how to begin contacting a company as huge as Hasbro, Nickelodeon and Disney!

Can anyone help me out here? I've really wanted to pursue this for so long, and while I can draw original characters and such, I know they would never sell as I don't have the time or will to attempt to create a fanbase for them.

[kaoskat]

You really should talk to a lawyer. Some companies (like Hasbro) will let you get away with a bit of fan art, others (like Disney) have been known to sue you for everything you are worth for copyright infringement. And anything you do using someone else's characters without their permission is a risk.

[melodys_angel]

I agree, it sounds like you need to confirm things with someone that would know in-depth.

I see people selling fanart all the time at conventions, but I have no idea what they went through to not get pummeled for it.

[Strawberry Swirl]

People do that sort of thing on Etsy all the time. Normally, Hasbro doesn't even care a LITTLE bit. But Disney is a bit more sensitive. It's all in the company.

[lovesbabysquirmy]

Also... the charity may not accept the funding if you used a "grey area" of legality to raise the money. 

[InkyMilk]

Well, I want to do this legally, so I don't know about that "gray area" bit (plus, even if I was, if I'm donating money why do I have to tell the charity where the money came from?). And speaking to a lawyer seems a bit.....excessive (and expensive), as I'm not looking to make a huge business out of this or expect hundreds and hundreds of revenue or anything.

From what I've researched, original characters even within a licensed franchise are totally legal to sell, as are characters from under the public domain (such as many fairy tale characters depicted by Disney), so long as they are interpreted in my own, original fashion.

I kinda feel like you guys think I WANT to break the law. I don't, that's why I was hoping to know if others have been in the same situation and how they went about it to ensure everything was okay.

[rosierjay]

one way "around" it.
is to have fan art samples to draw attention, but be offering original commissions.
if they chose to have a recognized character done, i'm not sure what area that falls into.

[ponycake]

If you want to do it legally... well I don't think there is a way. I doubt they'd grant permission for their creative property to be sold.

Perhaps they don't care about fanart though, I don't know. Have you looked at their copyright section on their page?

[lovesbabysquirmy]

Well, I want to do this legally, so I don't know about that "gray area" bit (plus, even if I was, if I'm donating money why do I have to tell the charity where the money came from?).

It depends on the charity in question - some of them have regulations and policies about how they accept funding.  For example, many Catholic charities will not accept monies raised from gambling.  You are not forced to tell them how you raised the money, but they may ask, so be prepared to answer that question.    You can always say "From proceeds from selling my artwork" but I wouldn't advertise that you were drawing copyrighted characters.  Let them advertise on Twitter/Facebook/whatever their social media channel some samples of your work that is NOT copyrighted characters and maybe they will generate further commissions for you! 

Oh and this part:

I have read that fanart sold for non-profit (such as donations) is legal, yet ALL proceeds must be donated which I can't do because if I did that how would I ever break even  for the cost of supplies?

This is true because the money is supposed to be a donation, not a situation in which the donor financially benefits in any way for it.  When a soft drink company decides to put its logo all over water coolers at a 10k marathon, they are not legally allowed to be issued a tax receipt to be deducted off their income.  Artwork or brand-display rights sold for non-profit is just that - non-profit.  Copyrighted characters are a logo or brand in a way - everyone knows who Mickey Mouse belongs to. 

It's the same reason why legal-savvy cake decorators often tell customers who bring in a creation, "no, we cannot use that - pick from the book".  They are only licensed to sell the designs that they were contracted to.

It would be like if you worked for Disney, designed all sorts of characters, and then found merchandise with your artwork all over an Asian shopping market.  Yes it belongs to Disney but you'd be aggravated about it. 

I know we accept fakies typically as MLP collectors but we aren't creating 3D molds of Hasbro ponies and starting a "black market".    As far as a lawyer is concerned, they are pretty close to the same thing. 

[melodys_angel]

I kinda feel like you guys think I WANT to break the law. I don't, that's why I was hoping to know if others have been in the same situation and how they went about it to ensure everything was okay.

That's a bit excessive, hun.  Please reconsider after rereading things here.  None of us know 100% so we are trying to suggest things that will reassure you, so you don't accidently cross the line (since this is what you asked int he first place).

The lawyer may..or may not be so expensive.  It depends who you contact.  I would assume someone coming out of school wouldn't have any issue with looking into something for less then 5 minutes and give you a yes or no answer--especially since, as you've said, it is for charity.

Again, as far as what ive seen, things are typically ok if you are setting up a table at the convention. 

You know, convention season is coming up soon--it might be a good idea to shoot off an email with your question to someone that works in an artist alley

[Elisto]

My understanding is that selling fanart isn't truly legal, but as others have said, most companies (except Disney...I'd stay far away from them) don't care or just don't try to stop it because they don't want to scare off their fans. Conventions all have different rules because of this; they want to have an Artist's Alley, but they don't want to be help liable for illegal sales. For example, Otakon requires that no more than half your display (and products?) are fanart and I think art has to be either hand made or limited numbers of prints (not mass-produced). You may be able to contact some conventions, not just just the artists, to find out some of the details about how they make their decisions, but as others here have said, it really is a gray area with no clear-cut legal/not-legal answers. Except, I do think it's legal to create things that are clearly inspired by other properties but aren't actually the same, like this artist's work: https://www.facebook.com/UkiyoEHeroes

[hathorcat]

Unfortunately the only truly legal way to sell items which portray characters that belong to companies on them is through a licensing agreement. If you want to be 100% on the right side of the law that is your only option. However when you are selling small scale like this, its not worth it and you would be unlikely to even speak to Hasbro about it.

Thankfully we, MLP collectors, collect a line which has a company that is not overly aggressive with shutting down fan art. Although with G4, Hasbro have issued more cease & desists than they ever did to fans for the previous 30 years But they have only really done it in cases where sellers/creators were perhaps becoming a little too big, too high profile or even when they were about to launch large license agreements with people who were paying them for the rights to the character. Disney, as others have mentioned, are a whole other ball game - dont mess with Disney, its not worth it. They have whole departments dedicated to shutting down people using their brands/characters/images without permission.

So while you may feel talking to a lawyer is a step too far; as you have asked here for advice, I think the only thing that can truly be said is using a companies own trademarked/intellectual property for your own profit [even if thats fundraising] is against the law. But as you can see from 50% of etsys MLP listings, its something which plenty of people do on a small scale without any real concerns. So as long as you do it aware its possible, very very unlikely, but possible that you could be asked to stop at some point, I think its worth testing the etsy waters with your creations