Legal Perils of Fan Art
After reading yet an other misinformed opinion on the legal status of fan art, I want to clear up the station a bit.
If you are creating fan art, you are violating up to three areas of the law. These are copyright law, trademark law and personality rights.
Austin Powers - Goldmember: Due to international copyright law, this is not Godzilla
Copyright law grants the author or rights holder exclusive control over the work of art. This includes characters, items and locations and thus most fan art is affected.
Although copyright law grants authors of derived works (works using parts of / based upon other works) control on the derived work, but only if it was legal to create it. So any claim of fan art (unless you have a license for the original work) is null and void, including the bits you added.
There is one exemption, fair use. The fair use doctrine within copyright law is intended to allow satire and critique. Unfortunately, most fan art is not fair use.
The second exemption is public domain. These are works of art where the copyright has expired or never where under copyright. For example using characters from Shakespeare or pictures from NASA is OK.
Jack Daniels and Broken Piano for President
Trademark law protects marks, slogans, fonts and colors. For example you can not create a book cover that looks like the Jack Daniels label.
But the protection is not absolute, you can reference marks and slogans where it its into context. For example letting your character go to a Mc Donald's and being annoyed of the slogan "I am loving it." is ok, But creating a dystopian future where Mc Donald's takes over the world is not.
The point is that it should not create the illusion that the company owning the mark endorses your work or the image of the mark is severely damaged.
Everybody has personality rights, such as the right to privacy and the right to control the use of one's image and likeness. This becomes an issue when writing fan fiction including famous people. Fortunately, so called people of public interest have a reduced personality rights. This is the legal basis on which it is OK to take pictures of celebrities is public places.
In respect to fan fiction, it is OK to let George Clooney turn up in your fan fiction on the red carpet of the Academy Awards, but the romantic episode that ensures is not.
Fan Fiction Still Exists
But if fan fiction is badically illegal, how come that so much exists?
There is a long tradition of tolerating non comertial fan fiction. After all it is the ultimate fan worship. But this is the only basis on which fan art may exist, with the permission of the rights holder. For example J.K. Roling or Marissa Mayer are not amused by fan art and have suppressed everything they could find. Fan art can not survive a legal challenge.
The only recourse is to create an original work. This does not mean you can not take some inspiration from other works, you just must ensure that it is sufficiently different. For example 50 Shades of Gray is not a Twilight fan fiction, even though the main characters are inspired by it.