Not sure where this should go, so posting here (hope that’s OK). I’ve asked Patreon support the same question, and am still waiting to hear, but would be interested to hear what other people here have to say on the matter.
What’s the situation with fan art and Patreon? I’m an illustrator, so I’m concerned here with drawn images, but I guess this issue could also apply in other media. Let’s say I want to do a piece of art based on somethin that’s currently in copyright - say, a cover for one of the Harry Potter books. If I do this on my illustration portfolio, even share it on social media, I probably won’t get into trouble because I’m simply using it to promote my skills, and I’m not making money from it.
Now, transfer that activity to Patreon: even if I don’t sell prints, etc, am I in contravention of J. K. Rowling’s copyright because I’m making money from her characters (albeit indirectly)? I realise that many people on Patreon seem to behave as if this isn’t a problem, even selling commissions of copyrighted characters, and I know that (for instance) comic book artists can supplement their main income from producing commissions of this sort (which the comics industry seems mostly to turn a blind eye to).
I can only answer this from the perspective of how my Patreon income affects my accounting. My CPA says that my Patreon income is essentially a membership fee, so folks are paying for access instead of an product. (I’m in AZ, in the US. Every place is different.) I don’t know if that affects fair use and profiting off copyrighted content. It sounds like a question for an IP attorney.
(If you need a rec, I use Andrea Evans, http://evansiplaw.com/ - if no one can answer and you want to check with one.)
Yes, it does seem logical to treat Patreon pledges as a means of supporting a creator’s practice, not as a ‘purchase’ of product. And if such fairuse is allowed as part of a creator’s normal practice, then maybe that would be OK. But it does seem like a grey area, and one that I’d like clarifying before I go too far down the road.
I live in the UK, so I’m not sure your legal advice would apply(?). However, I’m a member of the Association of Illustrators, which provide some legal advice, so I’m also waiting to hear what they say. I’ll let you know what responses I get, if you’re interested.
The whole copyright thing is a minefield, though. I mean, even if I stuck to works in the public domain, then that would differ according to territory.
The thing to remember about copyright: it covers making copies of something created by someone else.
Are you copying a current cover when you create your illustration? If not, you’re not violating copyright.
What you may be violating is trademark and licensing laws. If you’re using the titles in your artwork, are they trademarked? If so, you could get a happy cease and desist from a trademark holder if your artwork is widely circulated. On the other hand, if the artwork is in a post for patrons only, you’ll probably never hear a peep about it.
The art would not be a copy of anyone else’s work. If - for example - I did art inspired by George Orwell’s ‘1984’, then it would be my own original artwork. However, if I did a mockup of a cover design, then I can’t really avoid using the words ‘1984’ and ‘George Orwell’. I don’t know if there are any trademarks involved there - I assume not - but even if not, I still wonder about my use of Orwell’s characters and ideas.
I take your point about the cease and desist issue and circulation: I guess most copyright holders wouldn’t worry too much, given the context of the activity.
I’m still unsure about this issue really - I’ll let you know if I get a clear answer from official channels.
Ideas cannot be copyrighted. Characters can only be copyrighted if there is a fixed representation of them in the original work. So, in your example of 1984, you wouldn’t be violating Orwell’s copyright by drawing the characters in his story.
You chose a good example, though. George Orwell died in 1950, so his work is still under copyright. His estate controls the rights to his work, and a quick Google of “1984 orwell copyright” showed them to be pretty aggressive about protecting those rights. They sued Apple over their famous ad, and won, and they also sued the TV show Big Brother. They’ve even gone after individuals selling 1984 merch on Cafe Press. I would not mess with trying to interpret Orwell’s work until it falls out of copyright in 2045.
Yes, Orwell’s estate seem to play hardball! Seems the problem with Apple’s ad was that it used the words ‘1984’, and also depicted a scene very similar to the novel. This is an interesting article: http://gcjustice.com/Apple_Computers_Big_Brother.pdf
If I did illustrations from the book, then there’s no doubt that the book is being referred to, so I’m not trying to hide that. I’d also be illustrating/alluding to specific scenes, so that may be a problem.
The only issue I can see that would save me is the lack of direct financial gain - I’m not selling prints or merch. However, it would be indirect financial gain, and I’m not sure I could get away with even giving rewards of prints. Hmm… tricky!
Hey there! I’m Colin, the in-house counsel at Patreon. Happy to answer this directly.
For your example I can’t provide any specific legal advice here, but I can say that fan art is often infringing unless it falls under the fair use exception. Even absent fair use considerations some rights’ holders turn a blind eye to fan art or even actively encourage it. You may be able to determine how a rights’ holder will react by looking around online.
Patreon’s policy is very simple. We do not monitor content being uploaded to Patreon for potential infringement, and do not make any preemptive determination whether a particular piece of fan art is protected by fair use or not. If we ever receive a valid DMCA takedown notice then we follow our DMCA policy. This calls for the works specified in the notice to be removed from Patreon, or if the entire page is dedicated to allegedly infringing works then we will remove the page itself.
Hope that answers your questions, let me know if I can provide any other help!
Thanks for your response. Regarding Patreon’s position, that’s very helpful. So, if there’s a complaint, then you may take down the offending work/whole page.
Regarding the more general legal position, am I right in thinking that even non-commercial use can infringe copyright? If so, I think I may be tempted to avoid this whole issue and stick to works that are in the public domain!
Thanks for everyone’s advice. Just to let you know that, as I said I might, I’ve decided to concentrate on public domain texts - which seems to be working out quite well! It’s nice not to have the headache of whether borderline cases will be a problem or not. I’ve also put a disclaimer on my website to say that, where my work uses non-public-domain properties, that I don’t make any money whatsoever from these, and I’ll be happy to take anything down that a particular copyright holder finds objectionable.
