Mickey Mouse, DC superheroes, Game of Thrones villains; we all have characters that we know and love. Naturally, we like creating art with them. Art inspires art, so it’s likely that you have some art that was either directly or indirectly inspired by your favorite characters. So, you sat down for an art session and painted a beautiful picture of your favorite character and you wonder: can you sell a painting of a character?
Legally, you cannot sell paintings of characters that other artists have invented. Due to trademark, copyright, and art plagiarism issues, selling paintings of characters is stealing the work of others and selling it as your own, even if you created the painting yourself and put a unique spin on it.
The fact that it’s illegal to sell artistic representations of your favorite characters can be REALLY disappointing. A lot of us are inspired by the art around us and feel like we have the greatest ideas surrounding the TV shows, books, and movies we love. Yet, the reasons why we can’t sell the art inspired by these ideas are really valid, no matter how disappointing. Let’s dive into them.
Selling a Painting of a Character is Stealing
Stealing is something that most of us wouldn’t do. No, we would never think of leaving a store without paying. Once we dive into the artistic world though, stealing doesn’t seem as black and white as swiping a candy bar from the convenience store.
When thinking about stealing visual art, the easiest thing to compare it to is literary plagiarism. Imagine that you wanted to write a story about an orphaned boy who is sent to wizarding school and called to find and defeat the dark world’s master.
Sounds a lot like Harry Potter to me.
If you were to pull out J.K. Rowling’s first Harry Potter book, open up to chapter 1, and start copying the sentences, you’d definitely be in violation of plagiarism. But, let’s say that you didn’t copy the words directly, but you used the same premise and even the same characters. Yep, still plagiarism. Would that ever be ok? No. The same goes for visual art.
In fact, there’s a version of plagiarism that applies to art. Easily enough, it’s called art plagiarism. Art plagiarism is when you copy someone else’s art and call it your own. But, what if you give credit? Well, once you sell it, it doesn’t matter. In the same way that you couldn’t sell the same story as Harry Potter, you can’t sell art that is copied from someone else’s.
Technically, when you sell a painting, drawing, sculpture, or any other type of art that includes a character, you are stealing.
But, a Lot of People Sell Character Art
Yes, a lot of artists sell character art or, in other words, fan art. A lot of people steal candy bars from convenience stores too. Just because other people do it and haven’t gotten caught doesn’t mean it’s ok.
There are SO many online stores, which makes this issue hard to control. Yes, a lot of stores DO get shut down for selling fan art, but a lot don’t.
The ones that haven’t gotten caught yet are playing with fire. At any moment, a company could pursue them and get them shut down for making art surrounding their characters, which leads us naturally to our next topic. But first, let’s understand the differences between copyrights and trademarks. Both matter when you sell art, but they have distinct differences.
It’s still stealing.
The Difference Between a Trademark and a Copyright
Copyrights apply to works of art, while trademarks apply to words, phases, logos, company names, etc. If you were to sell a painting of a Mickey Mouse, a copyright would apply to the recreation of Mickey Mouse himself. But, let’s say that you wrote “Disney” on the painting. Using the word “Disney” would violate their trademark.
What Happens If You’re Caught for Selling a Painting of a Character?
When you sell a piece of fan art or character art, you’re not only committing plagiarism, you’re also violating the copyright of whoever originally created that character. If a company pursues an artist, they will tell them that they are violating their copyright and/or trademark. This simply means that the artist is using something that isn’t theirs.
For example, if I paint a picture of Mickey Mouse and try to sell it, Disney would tell me that I am violating their copyright for Mickey Mouse.
A trademark or copyright applies to one specific thing, like a character or show. This means that each piece of art is pursued individually. Some artists will accumulate so many trademark violations that their entire stores will get shut down.
But, in general, artists will get notices of trademark violations relating to their individual pieces of art. This is another reason why it is SO hard for companies to pursue and squash. One store might have a few handfuls of fan art, all which would require individual investigation.
When an artist gets caught violating a trademark, the most likely thing that will happen is that they’ll receive a letter explaining the violation and asking for the art that’s violating the trademark to be taken down (source). If the artist removes the piece of artwork that’s in question, usually, that’s all that needs to be done.
See that I said “usually.” If you’re ever in a situation where you get a trademark violation letter, read it very carefully and talk to a lawyer if necessary to make sure that everything is covered.
Sometimes, the penalties are worse depending on the nature of the trademark violation.
Watch Out for Trademark Violations in Your Listings Too
You can violate a trademark anywhere on your art listing. The actual piece of art you’re selling may not violate any trademarks at all, but if your description, title, tags, or descriptors violate a trademark, you’re still in hot water.
A lot of times, this happens by accident. Here’s an example of my own. On my Etsy store Hopscotch Shop Gifts, I use my art to sell apparel, mugs, phone cases, etc. I have one design in particular that I made for infant bodysuits. Infant bodysuits? Why don’t you say “onesies”? Well, I did. By accident, I used the term onesie in the title of my listing, which put me in trademark trouble.
The word “onesie” is actually trademarked by Gerber, a company that is passionate about pursuing the artists violating their trademarks. My listing got shut down and I banned the word “onesie” from my Etsy vocabulary. I didn’t want that happening again!
It’s pretty easy to avoid painting your favorite character and putting it up for sale. But, once you get into the details and nuances of your product listing, you can see that it’s really easy to ACCIDENTALLY violate a trademark. You’d be surprised by how many words and phrases are off limits.
Even if you are really careful about keeping your fan art off of your store, be considerate about every aspect of your product listings to make sure you aren’t violating any trademarks. You don’t want to be like me and carelessly use a word and have your listing shut down!
Can I Legally Sell My Character Paintings If I Give Them Credit?
Legally, you cannot sell your character paintings even if you give credit to the original creator. This is not like writing a high school English paper where you simply have to cite your sources. Giving credit to the original creator will not get you out of illegal territory, no matter how good your intentions are.
In order to legally sell fan art or paintings of characters, you need written permission from the original creator or company itself. This usually takes the form of a license. You would do a business negotiation whereby you “license” the rights to the character you wish to use. Once you sell the work, the company would take a cut of the profits.
Licensing is no small thing. It could take a lot of time and money to license 1 character, let alone all of your favorites. In general, you’ll want to avoid licensing, which means you’ll also want to avoid selling your fan art all together. I know it’s a bummer, but that’s the only legal thing to do.
Selling any of your art that recreates or uses any famous characters is illegal. If you didn’t invent it, you can’t use it. It’s a hard pill to swallow for artists who enjoy celebrating other artists by emulating their work. But, making a profit off of their work and calling it your own is not ok. To stay out of legal trouble, don’t even dip your toes into selling fan art.