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!
Publishers know that a major source of income for artists is the sale of original art. Sometimes we make more money on our original art than we do on the pay from our books. It’s a perk for artists to do sketches as commissions. Sometimes it is even permitted in our contracts. Sometimes not. Publishers want to keep the artists happy so they will keep working on their books for low up-front payment. If artists can make bucks on the back end with no further investment from the publisher, well, good for the publisher.
If the publisher removed original art income from the artists, many artists would be unable to continue working for low up-front publisher payment. We get no employee benefits, and have no incentive to go to conventions and promote work. Most artists are not paid to be there. (EDIT: At one time, artists were forbidden to sell books or comics at conventions – only original art. If creators could not sell sketches, they have less incentive to go to shows. A major reason fans go to shows is to see the artists and get sketches.)
The only publishers I ever worked for which forbade convention sketches in their contracts were Archie and Disney. And yet every Archie and Disney artist I know does sketches. Also, when I worked for Disney, they sat me down at shows…and had me draw sketches. In writing they said no, but their mouths said yes, yes.
If you are respectful of the copyright holder’s work (for god’s sake, you can’t expect the publisher to be happy when you post your superhero porn at an online gallery,) they usually don’t care if you make sketches. For the same reason that most of us don’t run around the internet removing every unauthorized image of our stuff. It’s not really hurting us, and it makes the fans happy. It puts a few bucks in the pockets of the artists.
My copyright enforcement rule: no harm, no foul. Most publishers feel the same way.
Remember that the copyright holder that giveth is also the copyright holder that taketh away. If you step across the line and make naughty pics of Mickey and Minny, the Mouse Monolith with descend upon you with the wrath of a night on Bald Mountain.
Convention sketches are a part of our culture, just like fan art. The publishers realize this.
I’ve seen a few people online get uppity about it, claiming that publishers who oppose piracy are being hypocrites when they don’t go after artists who do convention sketches.
These people don’t get the point of copyright: the public has no say in the matter, only the copyright holder does. Only the copyright holder is in a position to determine whether or not damage is done to their business. The copyright holder whose book is reproduced online 150,000 times is in a position to decide whether or not this copyright violation is harmful to their book sales. The consumer is not.
50 artists making Batman pictures at conventions does not translate to damage to the publisher’s market share or reputation.
If the copyright holder does not choose to go after convention sketches, then don’t worry about it.
And on that note, more and more publishers include clauses in their contracts for artists to create commissions. Some now include licenses for artists to make limited prints. Lucasfilm has contracts that allow artists to sell reproductions and sketches at particular conventions, but nowhere else. These clauses sometimes include a license fee to be paid by the artist to Lucasfilm.
What people don’t understand is that some artists have these licenses and some don’t. They see a popular creator selling prints, and think if one artist does it, it’s OK for everybody.
I avoid doing sketches of characters I have not actually done in officially licensed works, though I have done them in the past (and now that I have done trading cards of almost everyone, I think that about covers every pop culture character, ever). I never do cover reproductions of other artist’s work. I do not sell prints of work on which I do not own the copyright without permission.
Just use your good judgment, be respectful of other people’s property, and, most important of all, don’t piss off Disney.