Martina Olrich, a reader from Germany, sent me an excellent letter with terrific questions about convention sketches, fan art, and prints. I’m going to break this up into several pieces.
I edited out the first part of the letter. It was a long list of my virtues, and modesty prevents me from posting it (it’s OK to laugh). But I will print it out and sleep with it under my pillow and dream happy dreams.
And now, Martina:
The reason why I write this mail is the fanart-topic that came up in the blog. My question is not about the situation that was discussed in the blog, but what if it’s the other way round – if someone asks you to draw a comic-character that’s not your own and offers money for it.
I’m not a professional artist, but I do little cartoon-illustrations for advertising purposes as a hobby. Advertising is very different from the comics-industry (the main problem is that we advertising-illustrators are totally unknown. They never put your name in the advertisements, so you almost never get any credit or public recognition…but the money’s okay).
However, there are some situations where the two industries come together. I was at a fair once where board games where sold (= product advertising), and the same fair had an area for comic books. And somebody walked up to me and asked me to draw Batman. I was a bit clueless whether this is okay or not. There was another artist sitting at the table next to me, and he told me that I could do it, and it would be no legal problem.
The answer is yes and no.
Technically, everything you do that is based on someone else’s work is a derivative work. That includes convention sketches of Batman. Derivative works are the exclusive province of the original copyright holder.
However, copyright law also allows for individual original images using existing works for purposes of artistic commentary. For example, if you were to create a fine art painting in a Roy Lichtenstein kind of way using a panel from a comic book as your source. This transformative use puts the art in the context of original commentary.
That’s Lichtenstein’s excuse and he’s sticking to it.
A sketch of Batman at a convention is probably not artistic commentary. It’s a sketch of Batman to make a buck.
So, where does that leave all those artists at conventions selling sketches of Batman?
DC Comics doesn’t care. Really, they don’t. As long as you are not making sketches of Batman and Robin having sex, for the most part, DC will ignore you. For the same reason I don’t care if you draw a pic of Rieken and sell it at a convention. I’m not a copyright absolutist, and the great thing about copyright is you don’t have to enforce copyright law in order to maintain your copyright.
If someone makes a sketch of Rieken and sells it at a show, there is no danger to my copyright. I have lost nothing.
However, if you decide to make a major commercial operation of your use of my characters, and start selling paintings which are your copies of my cover art (which has happened,) I’d be upset. And I’d send you a letter asking you to scale it back.
DC and Marvel Comics have quietly asked artists who have gone too far to stop making pictures. It’s on a case by case basis, and they can look away if they want, or come in and stop you if they want.
I asked both my attorney and the attorneys at several of my publishers for their stand on this and every single one of them had the same answer: Which boiled down to “Meh.”
BTW, my attorney enthusiastically commissions artists to do sketches at conventions.
TEAL DEER AFTER THE BREAK! ↓ Read the rest of this entry…
