Iām an artist and a writer, and I do actually know a few things about copyright law, and there are some misconceptions/lack of information here. I get it, if youāre not an artist yourself, you probably donāt know what itās like. So maybe I can set a few things straight.
Thereās a misconception here about just how legal/okay monetising fanart is. Just because someone puts their fanart up on Redbubble doesnāt mean itās legal. In fact, fanart gets taken down on Redbubble all the time because the copyright holders issue a takedown notice. And if you get too many take-down notices, RB will close your account, because youāre breaking their TOS. Some creators are okay with fanart merch; for a small-ish TV show or book, fan merch might be helpful, since it increases fan investment and helps promote the thing without them having to invest a single dollar, and itās not competing with their own merch because theyāre not selling merch. It may not be technically legal, but the creators simply wonāt do anything about it. But try putting up Marvel fanart or Disney princess fanart, and see how long it takes before Disney sends you a cease-and-desist. I mean, they went after people crocheting Baby Yodas on Etsy.
The whole āfair useā thing is really a philosophical debate. In reality, if the copyright holder issues a takedown notice, the thing gets taken down. Yes, you can file a counter-notice, but that constitutes a legal agreement to go to court over it. And realistically, thereās no way any of us are going to win against Disneyās lawyers, fair use or not. You do not want to sign up for that, believe me. Much better to just let it go.
What saves most fanartists isnāt the fact that itās legal, itās the fact that a cease-and-desist is usually a copyright holderās best approach. If you issue a CAD, you canāt then sue someone if they comply, unless they file a counter-notice. Itās the easiest and cheapest approach for Disney and in 99% of cases it makes the most sense, and luckily, is also the one that lets the fanartist off the hook with nothing more than having to take the work down. I donāt know how likely it is that this would also be the approach for monetised fanfiction.
Another important thing: fanfic is a different medium. Gifs and fan videos are also examples of fanworks that you canāt monetise. Itās not just fanfic. Itās partly down to the medium and the fact that you canāt sell merch with anything except fanfic. Nobody pays just to look at fanart, trust me.
And a huge factor is that most fanfic is based on stories - films, books, etc. Fanfic is therefore automatically less transformative and a more direct rival to the source, especially if that source is or includes books.
I mean, think about it like this. You write a fanfic. Someone draws an illustration for it. Most writers would think thatās awesome, right? Now imagine someone rewrites your fic with a different ending, or takes your premise and all the little details you came up with and basically steals them for their own fic. Still awesome? Because most fic writers consider that plagiarism, and get very annoyed.
So authors, especially, are often cool with fanart but not with fanfic. Because fanfic is essentially taking the thing you wrote, and rewriting it. Even fanfic writers donāt like it when someone takes the thing they wrote and copy or rewrite it, so maybe you can understand why original creators donāt like it either? Now add money into the equation, and imagine that you put all this time and effort into creating characters, getting published, etc - and someone else just copies your work and sells that. Would you be okay with that?
The exact same thing happens with art, by the way. Itās just that most fanart is also based on stories, not paintings or photos. But if you copy an artistās painting and call it āfanartā and sell it, I promise you, theyāre going to be pissed off. Youāre much more likely to get away with using it as inspiration for a story. In fact, I think writers tend to get away with this more, if anything - you can write a story inspired by a photo you saw, and the photographer will likely have NO chance of proving that itās essentially fanfic of their work. If you wanted to write and sell fanfic based on some artistās paintings, Iām pretty sure the tables would be turned and you would get away with it while a fanartist trying to sell copies or re-interpretations would not.
Also: there are creators and celebrities who are cool with fanfic and have explicitly support it, and there are instances where fanart has been laughed at (I distinctly remember them showing pinup art to Hayden Christensen on some talk show to embarass him and laugh at it; same with Chris Hemsworth).
And finally, you can sell fanfic if you change the names and details and make it an original novel. Sure, there might be people who sneer at it, but trust me, thereās people who sneer at artists for all kinds of reasons, too. (Did you know that digital art isnāt ārealā art? And that charging money for your art devalues it and artists should starve for their art if they really mean it? And that if I put my art on the internet, itās free game for anyone to take and do whatever they want with it? And that fanart isnāt ārealā art? The list goes on.)
Iāve got firsthand experience with both sides here. So I can tell you that if you think selling fanart is just always allowed, and artists donāt have to deal with any kind of backlash or people looking down on themā¦ you donāt have the full picture. Itās not nearly as simple or as one-sided as it might seem.
