With conventions starting up again, one of the most popular parts of cons is also making a come back: the artist booths. Fan content created by talented artists based on franchises they love and cherish, however, if you plan to hold you’re own booth, there are certain guidelines that you have to follow to stay out of legal trouble with the IP holder.
Fan content or ‘Derivative works’ are any creation a fan makes based on an existing IP. This can include fan art, cosplay, props, and more. While this sounds harmless, fan artists have always existed in a legal grey area.
The IP holder is the only one who has the right to make the content of their IP and is legally allowed to prevent other parties from making their own derivative content. Thankfully most of these companies understand the importance of fan communities and how derivative work can essentially act as a free advertisement while also keeping consumers happy.
As such they tend to allow people to make fan content based on their franchises but with certain guidelines put in place. These are to make sure that the IP is used in a way that does not harm their brand or business.
In order to help any potential convention-goers out there, we’ve managed to find the guidelines for a number of the more popular franchises among the convention crowd and what kind of fan content their respective companies will allow artists to produce. Take a look below:
Let’s start out with everyone’s favorite group of vtubers Hololive. Hololive Production has laid out its derivative work guidelines on its official website. The company says that they will not attempt to halt and monetize derivative works but creators also have to follow their guidelines:
We consider derivative works to be creations born of fans’ ideas and creativity, based on content created by us. We will not exercise our rights in regards to works that we deem to be derivative works, as long as they comply with these overall guidelines. Please note that we may use any derivative works you create as stream thumbnails, on social media, etc.
Please comply with the following guidelines regarding derivative works.
- Please be mindful of our talents, and refrain from creating derivative works that they may find unpleasant.
- Please limit your creation of derivative works to a fan or hobby level. Do not use our content for business purposes (including, but not limited to, cases where a business bears the production costs, etc., even if it is under the name of an individual), or for purposes that can be deemed as a for-profit.
- Please comply with all applicable laws and regulations, including the terms and rules of any relevant platforms.
- Please refrain from creating derivative works that fall under the following categories:
- Content that is falsely represented as official, or can be misinterpreted or mistaken as official
- Content that is contradictory to public order and morality, or exceeds what is socially acceptable
- Content that includes matters pertaining to any particular ideology, belief, religion, or politics
- Content that damages our image, that of our talents, or our content
- Content that damages a third party’s image, or violates their rights
The most important of these is “Do not use our content for business purposes” as it implies that you cannot sell your fan work for profit, only for roughly cost.
The term ‘business purposes’ means that you’re making a larger sum of money from selling your art than you spent to produce it. For example, if you are going to a printing company to get your art produced professionally and selling to make an income, that might just be breaking the guidelines.
That being said, if you need a professional printer to make art to give to your friends as say, a birthday present, that should be fine.
MiHoyo’s ever-popular adventure game, Genshin has taken the convention community by storm so it’s important to know what they allow before you sew that Paimon dakimakura. We actually made a previous guide regarding the games Fanwork guideline but it bears repeating:
Individuals or unincorporated entities may create, display, distribute and publish derivative works based on our games for non-commercial purposes only. Secondary creative activities by companies and organizations with legal personality, or secondary creative activities that exceed the criteria of these Guidelines, will be dealt with on a case-by-case basis, so please contact us in advance. Please note that we may take legal action if we deem that there is a breach of these guidelines.
Scope of permitted secondary creative activities
- The Production, exhibition, distribution, and publication of various operations of illustrations, doujinshi, manga, novels, etc.
- Production, exhibition, distribution, and publication of cosplay costumes, various activities using cosplay, and various operations thereof.
- Production, exhibition, distribution, and publication of props, items, and food.
- Distribution of live games and posting of videos (as long as the following prohibitions are not infringed, you are free to do so for commercial or non-commercial purposes).
- Use for commercial purposes of a commercial nature, whether paid or unpaid.
- Direct secondary use of official works (illustrations, videos, audio, music, logos, marks, cartoons, etc.)(copyright infringement) or use by scanning, tracing, etc.
- That which is deemed to damage the image of the Company or its content, or damage the honor or dignity of a third party.
- That which misleads or may mislead the viewer into believing that the user is related to a company that is sponsored, authorized, or affiliated with the Company or a company involved in the Company’s games.
- Any use of the Contents for the purpose of producing imitations or pirated versions of official goods and for the purpose of monetizing them (including acts of sale and preparation for such acts).
- Material that may mislead people into believing that it is an official production of the Company or the Game.
- That which misleads or may mislead as if it supports or endorses a specific individual, political party, religious organization, etc.
- Material that is or may be offensive to the law or public order and morals (including anti-social expressions)
- That which infringes or may infringe the rights of others
- Material or acts that infringe trademark rights, copyright, portrait rights, design rights, patent rights, utility model rights, or other rights
Like with Hololive, the rules regarding Genshin fanworks seem to be most reasonable. That being said, there are some additional rules regarding merchandising fan content.
Another factor in Genshin fan content is that you need to apply for MiHoYo’s authorization. You need to get permission for every character you use and each piece of merchandise you plan to make. So to make that Paimon bodypillow, you have to specify that you’re making a body pillow and that Paimon is gonna be on it.
You also have to state if you are an independent creator or a fan group. If you as an individual create fan merchandise based on Genshin character that exceeds 500 units, you need to get authorization MiHoYo. If you make the merch as part of a fan group then you’ll need to get authorization if the units exceed 200.
Most small times booths aren’t going to reach these limits as fan art usually doesn’t sell up to those numbers. If you are selling for that much, firstly good for you, and secondly, you really need to look into these guidelines so that you don’t get into any trouble with the powers on high.
There was a little trouble a year or so back when Studio Khara, Hideaki Anno’s studio that produced the Rebuild of Evangelion movies, created new guidelines for Evangelion fan content which included not allowing fans to sell NSFW art.
According to Khara’s guidelines:
- Fan activities should generally be done without monetary compensation or for commercial purposes. This includes using it to promote another work or service. Evangelion rights management company Groundworks must be contacted for permission to use the IP for commercial purposes.
- Fan works (video, images, novels, etc.) that follow the guidelines can be posted on social media services, illustration uploading services, novel submission services, and video uploading services, as long as these services mainly deal with all-ages content and have rules against profane content/behavior.
- Please refrain from creating works that: are hurtful to the source material or to another person; are created to further a specific religious or political agenda; express hateful points of view; are overly violent, grotesque, pornographic, or otherwise offensive; infringe on another creator’s ownership rights; or are works that could be mistaken for an official product.
- Official images can be used for citation or reference purposes, but this must be the only purpose for the usage, and you must please refrain from generally using video, music, and audio.
- Fans can submit works to the following premium services, as long as they follow the guidelines of those sites and agree that their accounts will not be used primarily for Evangelion fan content or for excessive monetization purposes: YouTube Live, Twitch, pixie sketch Live, Nico Nico Doga, Patreon, PixivFanbox, Ko-Fi.
- Do not release fan creations to announce something with a separate scope. Only release fan creations within the scope of the guidelines or under a similar license.
When these rules were announced, it was a little controversial considering Khara is considered a successor to Gainax, the studio that made the original Evangelion. Gainax was started by a group of Otaku and was known for their support of Otaku culture like conventions, doujinshi as well as producing very fanservice-heavy anime.
The gist of their guidelines is that they don’t want NSFW materials or anything else that could potentially hurt the brand. We should also keep in mind that most conventions won’t let you sell more explicitly lewd works anyway so chances are you won’t be losing out.
Zun’s Touhou Project practically lives on through the high amount of fan content generated through doujins, fan art, and even fan-made games. That being said, there are still clear rules that you have to follow if you wanna stay in Gensokyo.
To start with every piece of fanwork should have a clear note that your fan content is a fan-made work based on Touhou Project. If you have an explicit license from Zun, then it should be made clear as well.
Fan Content should Never have:
- Anything that means to harm Touhou Project’s reputation.
- Anything that infringes upon other intellectual property.
- Anything that means to mistake your Fan Content as one of the official Touhou Project titles.
- Anything that is extracted from official Touhou Project games.
- Ending scenes from official Touhou Project games.
- Anything that means to advertise personal beliefs beyond the bounds of fiction.
- Other Touhou Fan Content without the creator’s permission.
- Excessive sexual content that is considered unlawful.
- Anything that promotes hatred against individuals or groups.
In general, your Fan Content may only be distributed through platforms where:
- you can find official Touhou Project contents
- they are licensed or permitted by ZUN
Examples (includes but are not limited to):
- Local doujin events in Japan
- Local doujin shops in Japan
- Events are explicitly permitted by ZUN
- A small home business (physical media only)
- Touhou Digital Music Distribution
- Local events with admission fees on an individual scale
While the guidelines themselves are pretty fair, we can see the distribution rules as being trouble for Touhou fans outside of Japan. Since Touhou has few official international releases, fans will have to make sure whatever con they’re attending is licensed by Zun or perhaps even see if they can contact him or a representative to get explicit permission.
While Devisisters policy guidelines doesn’t say a lot about fan content at conventions, they do say that they will not endorse any user-made content.
- Devsisters does not endorse any User Content (any form of content such as fan art, blogs, wikis, discussion forums, posts, chats, digital images, videos, and/or any other forms of media created by users) supplied by users, and each user is responsible for his or her User Content, and we expressly disclaim any implied warranties with respect to User Content.
- Devsisters does not, and cannot, pre-screen or monitor all User Content. Devsisters is not responsible for monitoring the Service for inappropriate or illegal communications by users. Your use of the Service is at your own risk. However, we reserve the right to block, remove, refuse to post or edit User Content if necessary.
- The Service may include various forums, blogs, and chat features where you can post User Content, including your observations and comments on designated topics. Devsisters cannot guarantee that other members will not use the ideas and information that you share. Therefore, if you have an idea or information that you would like to keep confidential and/or don’t want others to use, do not post it on the Service. Devsisters will not be a part of nor hold responsibility to evaluate, use, or compensate you for any ideas or information that you may choose to submit.
This doesn’t mean they won’t allow fan content, but it means that they will not be held responsible for any fan content you create. It also says they have the right to block or take down fan works they don’t like for whatever reason which seems pretty standard for fan content
They also say that they have the right to use any fan works of their IP in official media if they so wish.
- Regarding your User Generated Content, you hereby grant to Devsisters a non-exclusive, sublicensable, irrevocable, and royalty-free worldwide license under all copyrights, trademarks, patents, trade secrets, privacy and publicity rights, and other intellectual property rights to copy, reproduce, fix, adapt, modify, create derivative works from, manufacture, commercialize, publish, distribute, sell, license, sublicense, transfer, lease, transmit, publicly display, publicly perform, or provide Devsisters with access to electronically broadcast, communicate to the public by telecommunication, and display, perform, enter into computer memory, use and practice, in any way (including, but not limited to, third-party sites and platforms such as Facebook, Twitter, and YouTube) without further notice to you, with or without attribution, and without the requirement of permission from or payment to you or any other person or entity.
This means that if you want to make a gijinka of Raspberry Cookie, just be aware that Devsisters can put it up on their own social media account or put on official merch and won’t have to pay you.
The Importance of The Guidelines
From all of these guidelines for fan content and conventions, you can definitely see some patterns. Most fan works like doujinshi, fan art, cosplay and works are completely acceptable however you can’t use them for commercial purposes. You can’t depict the IP in a way that can be seen as disrespectful, which can include being NSFW, hate speech, or infringing on the rights of others. Anything that can potentially be damaging to the brand or the company that produces it.
With this in mind, most forms of fan works should be perfectly fine whether that’d be dressing up as your favorite Genshin waifu or making a full watercolor depiction of the third impact.
Of course, there won’t be any cops asking you for your license or anything however, not following these guidelines could cause the convention to get in trouble with the IP holder which won’t be good for anyone.
Conventions are meant to be a fun gathering for nerds of all kinds and art booths are a big part of that. As such, it is important to follow the guidelines set out by the IP holder which in all honesty aren’t asking for anything too unreasonable. If anything it’s great that we’re able to make so much fan content with the IP holders mostly just being ok with it.
This way, we, as a community, can help conventions run smoothly and keep all parties: fans, artists, organizers, and IP holders happy.