‘Is my Mario fan art illegal?’ Everyone seems to have different answers to this simple question and it's no surprise. There is no single answer to the question as no single piece of art is the same as the next. I must state before going into this blog that we are not legal professionals if you’re looking for legal advice we recommend talking to a professional lawyer as each case will differ from the next.
Let’s talk law
According to copyright law, copyright holders have the sole right to distribute derivative works based on an original creation. This includes sequels and any other work that includes copyrightable elements from the original creation.
So the answer is no, right? Well kind of. The part of the statement above that states ‘copyrightable elements’ blurs the lines as fair use may protect some fan creations from being an infringement. But in general, fan art is an infringement of the copyright act in which the legal owners can take action.
With this being the case why are there so many ‘Mario’ fan art designs? Most fan art is overlooked as it is usually harmless to the business and can increase brand exposure, is it legal? No, but it’s rare companies will sue fan art if their work is harmless.
However, companies can and have sued fan art creators when they cross the line, making money off of fan art is usually when companies have their say. At the end of the day the legal owner has full rights to their creations, so to profit from fan art is on the same level as pirating a movie both end up costing the original creator.
For some creators, fan art may be more damaging than you first realise. Take David Firth (the creator of the popular websites ‘Salad Fingers’) he sells his own ‘Salad Fingers’ t-shirt but he is losing customers to fan art being sold on third-party sites, this lack of income has forced the online animator to open a Patreon account to ensure he has enough money to continue to do what he does.
Really sick of this shit. None authorised. Site plays dumb "it's user generated content" fuck off. pic.twitter.com/if9qK90qqK— David Firth (@DAVID_FIRTH) 6 July 2017
In basic terms do not try to make money from fan artwork, you would most likely be liable to get sued from the original copyright owner and that’s not fun. If you do what to make fan art then is better ways to go about it:
- Don’t make money from your fan art
- If you get a request from the copyright owner, obey it.
- Find information from the copyright owner to see if they have any specific rules when it comes to fan creations
Fan art can be a harmless practice that even the original creators can enjoy, however, consider the legal and moral implications when crossing the line from harmless fan art to making money off of others creations.
What do you think about the legality of fan art? Do you think it depends on the artist's intentions or do you think fan art should not be allowed all together? Share your thoughts below.