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I often see professional and amateur artists posting drawings of characters they don't own. Some sell "con sketches" of Marvel's Hulk, others create erotic fanart to Assassin's Creed.

Who is the copyright holder of this new work? Do I have to ask the copyright holder of the characters, or the artist of the derivative work, if I want to use such an image?

Who can sue me, if I create a derivative work off a derivative work? The creator of the fanart? The copyright holder of the characters? Or both?

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    Derivative works, at least in the US, is defined fairly clearly, but at the same time the details tend to be left up to the jury on a case-by-case basis: en.wikipedia.org/wiki/Derivative_work
    – DA01
    Commented Nov 19, 2012 at 20:18

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Warning, this is pretty long, but this is a copyright lawyer talking at Comic Con about this very subject.

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  • That is an enlightening speech (in that video), but it does not answer my question. My question is: What is the copyright status of fanart? Is it protected under copyright law? Or is a work, that infringes copyright, not in itself protected by copyright? Or is it protected by the copyright of the original work?
    – user8674
    Commented Nov 23, 2012 at 22:44
  • Sure it did. Your fan art is a derivative work. You don't own the rights to those characters and if you decided to make any money off they would likely come down you like a ton of bricks. If you're not making money off it, likely nothing will happen, but they would be totally within their rights to have you take it down. If you were parodying something, you would be on much firmer ground.
    – Sam
    Commented Nov 27, 2012 at 14:38
  • You misunderstand my original question. The creator of fanart infringes upon the copyright of the copyright holder, so much is clear. But what if I, who are not the creator of that fanart, take that fanart and publish it? Who can sue me? The creator of the fanart? The owner of the orignial copyright? Or both? The lawyer in the video only talks about the first level of infingement, not the second level that I am interested in.
    – user8674
    Commented Nov 28, 2012 at 11:58
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Actually the Copyright Law of the United States of America answers my question:

§ 103 . Subject matter of copyright: Compilations and derivative works

(a) The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.

(b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.

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  • Shame I can't vote on my own post :-)
    – user8674
    Commented Nov 28, 2012 at 12:37
  • (b) does seem to answer it. However, there may be court precedent which alters the interpretation of this law...
    – Alex Feinman
    Commented Nov 28, 2012 at 13:51
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    So if I draw Batman on a skateboard and you publish it, DC can sue you for Batman, and I can sue for the skateboard.
    – Sam
    Commented Nov 29, 2012 at 23:15
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I've been trying to research this myself, and I found this document on the matter:

https://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=1036&context=pipself

It seems that the despite the obvious interpretation of 103 (b), courts have tended to side that an unauthorised derived work gets no copyright protection (i.e. anyone with a license to the original work may copy it freely).

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