Selling Harry Potter Fan Art on Etsy & Copyright Infringement

Publish Date:

Mar 30, 2021

Author:

By Crafting Spree

Selling Harry Potter Fan Art on Etsy & Copyright Infringement

So you’re a fellow Harry Potter fan and you want to learn more about selling Harry Potter fan art on Etsy and if/when it crosses into the territory of copyright infringement? Good for you! So many fans just dive into designing, creating, and selling fan art without even seeking answers about the legality of doing so. 


Harry Potter is a RIDICULOUSLY hot topic today, even so many years after the release of the early books and movies. Harry Potter creates an entirely new universe for us muggles, so it’s only natural that a seemingly unlimited number of new fan art creations would continue to be produced every day.


But, the question remains: is selling Harry Potter fan art legal?


As a huge Harry Potter nerd (a Hufflepuff with a dapple grey mare Patronus- the same as my mom’s, although she’s a Gryffindor), and as an Etsy shop owner, I know just how tempting it is to create ALL the Harry Potter things, and sell them to fellow fans. After all, if you create it from scratch you’re fine right? Wrong. But don’t worry! I explain everything below in layman terms, with direct answers and provide links to where you can read more about things like Etsy’s rules and regulations, copyright law, and more fun legal stuff (is there such a thing as “fun legal stuff?)



For even more information, check out our Etsy Seller’s Guide to Avoiding Copyright Infringement

Avoiding Copyright Infringement



Avoid copyright infringement ENTIRELY and take advantage of these FREE fonts and graphics that are in the Public Domain that are FREE for both personal AND commercial use!


Get Free Fonts Get Free SVGs

What is Fan Art?

By its very definition, fan art is “artwork based on popular works of fiction (such as books, movies, etc.) that is created by fans. (source)


Pretty simple! Anything you make that is based on or inspired by Harry Potter, is Harry Potter fan art. This goes for anything created by hand (your own original work you made from scratch) as well as edited, manipulated, or otherwise revised works that started off as another person’s design that you edited and created your own variation of.


What is Copyright?


Copyright is:


 The lawful right of an author, artist, composer or other creator to control the use of his or her work by others. (source)


This means that the original creator of any work, is the exclusive owner of that content. The original creator is the only person who has the legal right to edit, use, copy, alter, distribute, or sell that content unless they grant specific permission, or give up their copyright and place their work in the Public Domain (creative materials that are not protected by intellectual property laws such as copyright, trademark, or patent laws- source).


According to Harvard University’s Office of the General Counsel "Generally speaking, a copyrighted work may not be duplicated, disseminated, or appropriated by others without the creator's permission." This means that any and every time you create fan art without permission from the original content creator/copyright holder, you are breaking copyright law unless you are protected by the fair use doctrine.


Learn More About Copyright Law Copyright Law for Crafters

What is Fair Use?


Ready for another fun definition? I knew it! Well, since you insist, fair use is:


A legal doctrine [which states] that portions of copyrighted materials may be used without permission of the copyright owner provided the use is fair and reasonable, does not substantially impair the value of the materials, and does not curtail the profits reasonably expected by the owner (source)


In short, fair use means that in some cases you may in fact, use copyrighted material without permission as long as you’re doing it in a reasonable/harmless way which doesn’t lower the value of, or negatively affect the original copyright holder or their brand, and does not cause the original creator of the copyrighted material to lose money. 


Learn More About Fair Use

Is Selling Fan Art Protected By The Fair Use Doctrine?


Short answer: no.


Long answer: it depends (but always assume no). The reason why a lot of specific law questions don’t have straight-forward and direct answers is because laws usually aren’t actually as specific as we think they are (a lot of laws are determined, enforced, and/or changed on a case-by-case basis), and the laws are always changing. Basically, fair use may protect you in some cases depending on the following:




1. Are you making money?


In some cases, if you’re not profiting from using copyrighted work, you’re won't to get in legal trouble for it. However, some content creators and brands such as Disney don’t care if you’re profiting from it or not; they will come after you and they will first likely send you a cease and desist order telling you to immediately stop what you’re doing or else they’ll sue you. Or they’ll skip the cease and desist letter and just sue you first. It all depends on who you’re dealing with and to what degree you were using their copyrighted material.


Fun fact:


In 1989, the Walt Disney Company discovered that three Hallandale, Florida, day care centers had 5-foot-high likenesses of trademarked Disney characters such as Mickey Mouse, Minnie Mouse, and Goofy painted on their walls, Disney threatened to go to court if the centers did not remove the drawings -thank you Snopes


Read more about Disney and copyright law from my fellow Cricut craft blogger: Shawn Mosch!





2. Are you making enough money that the original content creator is clearly suffering monetary loss?


This one makes a lot of sense. Imagine you’re sitting in an especially boring meeting and you keep your brain on, and eyes awake by doodling on your notepad in front of you. The meeting ends and a coworker notices your doodles and says “wow, I love your drawing style! Would you mind if I take a picture so I can use it as my phone background?” You’re a little weirded out because you’ve never talked to this coworker before and you weren’t even trying to draw well, after all they were just doodles right? What’s the harm in that? So you say sure.


Now, imagine you’re a hobby artist who sells your art at local craft fairs on the weekend, and you see that same coworker at the next fair and they have a booth full of art prints… your art prints. From your doodles. You find out they scanned your drawings and made magnets, posters, greeting cards, t-shirts, the whole nine yards, using your original work that you profit off of. If you found out someone else had made $5,000 selling YOUR artwork, I imagine you wouldn’t be too thrilled. 


The same goes for when the roles are reversed. Although in some cases fair use protects you from using copyrighted works without permission, it’s not a loophole for selling copied work. In fact, Etsy states:


Relying on the Fair Use Doctrine as a loophole to copy might be dangerous. Each artist should research potential legal issues and use good faith when assessing the risks and benefits associated with creating and selling art. Sure, the Fair Use Doctrine may provide a defense to copyright infringement for some artists in some cases. But the four part test is complex and unpredictable as many lawyers, judges and artists may disagree on which factor(s) are the most important. The Fair Use Doctrine is not a loophole for copying.” (Etsy)




3. Who is the original content creator?


Just as I mentioned before with Disney coming after people for breaking copyright law when people weren’t even making ANY money off of their brand, not all companies are like that. Etsy explains:


Some intellectual property owners may see a specific use as free advertising, fan art, or otherwise fair. However, others may see a similar use as lost licensing profits, branding issues, and/or copyright infringement… Different intellectual property owners may have different ideas for what constitutes infringement, and what they deem as “fair” and good for their brand.” (Etsy)


In the end, assume you’re not protected by fair use when you know you’re using copyrighted material and/or creative derivative works of copyrighted material (aka: fan art).


Learn More About Copyright & Fair Use

Can I Sell Fan Art on Etsy:


Just as you CAN rob a store, you CAN sell fan art and copyrighted works on Etsy, however just as with any form of breaking the law: it’s at your own risk.


(just because you can do something, doesn’t mean you should. Expect consequences for breaking the law)


In some cases you may be protected by fair use but as soon as you’re making money from it, assume that you’re not. The best way to avoid getting in trouble for copyright infringement or selling fan art on Etsy is to just not do it. I know it can seem incredibly unfair seeing other people on Etsy making 100 sales a day selling copyrighted material but just know they’re putting themselves at risk for losing everything and the more they make off of selling copyrighted material and fan art, the more they can be sued for when the original content creator finds out; and when it comes to big brands, the WILL find out. It might not be today…. It might not be tomorrow, but big brands have teams of intellectual property protection attorneys just waiting to shut shops down and sue for losses/damages and copyright infringement.

Learn More About Fan Art & Etsy

How to Avoid Penalties for Copyright Infringement on Etsy


Be original.


It’s no secret that most fan art, even a unique one-of-a-kind piece, isn’t exactly original when it’s based off of an entire world created by someone else. If you’re basing your work off of ideas, characters, books, movies, or anything else that another person created, then you’re putting yourself at risk for copyright infringement. In order to truly be safe from copyright/intellectual property infringement on Etsy (and every other selling platform) sell only original products OR use copyright-free assets that are in the Public Domain.

Avoid copyright infringement ENTIRELY and take advantage of these FREE fonts and graphics that are in the Public Domain that are FREE for both personal AND commercial use!


Get Free Fonts Get Free SVGs

Join our Cricut Community


Join our Cricut community on Facebook by joining our Cricut group: Any and All Things Cricut!


Here, you’re more than welcome to post photos of your latest projects, connect with other crafters, share your new Etsy shop, products, other social media accounts and more.


It’s also a wonderful place to share tips and tricks that you’ve learned along the way in your Cricutting adventures, as well as an excellent resource for troubleshooting any Cricut issues and getting answers to any questions you may have. What better place to get information and connect, than where all the Cricut crafters are!? 


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