In September 2024, Riot Games did something unusual at TwitchCon San Diego: it granted selected artist alley creators a free, limited licence to produce and sell goods using its intellectual property in connection with the event. According to the announcement the company published on its own site, it framed this as an experimental programme to gather feedback from artists, and as a first step toward a more open policy.
What makes the gesture interesting is what it takes for granted. If an exceptional licence is needed in order to manufacture and sell product, the rule the rest of the year has to be the opposite. And it is: Riot's fan content policy covers non-commercial projects and excludes commercial ones, with paywalled content named explicitly. Worth being precise here — that programme concerned merchandise designs. On fan art itself, the company says it imposes no restrictions.

That, in essence, is the position of fan art as a whole. Widely tolerated, rarely permitted in writing, and thousands of illustrators work in the gap between the two.

Among illustrators there is a persistent belief that adding "I don't own this character" to a product description is enough. The formula carries no legal weight whatsoever: it grants no licence and limits no seller's liability, and platforms disregard it entirely when a claim arrives.

Meanwhile, much of the activity has moved from the convention table to the digital file and the monthly fee. Platforms have appeared built entirely on that middle ground, among them OtakuOshi, where illustrators sell fan art by subscription and commission.

Fan art is, in legal terms, a derivative work

US copyright law reserves a set of exclusive rights to the rights holder: reproducing the work, distributing copies, and preparing derivative works based upon the copyrighted work, among others. A drawing of a protected character falls into that last category. It makes no difference that you drew every line of it yourself, that you traced nothing, and that the result resembles no existing official illustration.

What copyright protects is the expression of the character: its design, its appearance, the features that make it recognisable. Making something new with it still touches someone else's right, and the effort you put in does not change the classification. Your drawing can be original and derivative at the same time.

This is worth stating plainly, because the opposite belief is what gets people into trouble. Creating fan art requires nobody's permission to exist. Exploiting it commercially is a separate conversation.

Fair use is not a box you tick

There is another misunderstanding, and it costs more than the first. Fair use operates as an exception assessed case by case, and ultimately decided only by a court. Nobody grants it to you in advance.

The US Copyright Office maintains a public index of judicial decisions on fair use that shows how judges have ruled in specific cases. Reading it is instructive: the four factors — purpose and character of the use, nature of the original work, amount used, and effect on the market — are weighed together, and situations that look equivalent end up decided in opposite directions. The index summarises decisions rather than reproducing them in full, and the Office itself notes it is not exhaustive.

For anyone selling, two of those factors carry particular weight. A commercial purpose starts at a disadvantage against a critical, parodic or clearly transformative use. And the effect on the market is the slipperiest ground of all, because large franchises run merchandise licensing programmes, and a print of a character competes head-on with official product that already exists.

A faithful portrait on a T-shirt defends badly as transformative. A work that reinterprets the character to say something about it, about the franchise or about the culture around it has considerably more room. The distinction is subtle, and it is the one that decides cases.

Why almost nobody gets sued

If the theory is this restrictive, how is it that thousands of artists sell fan art at every convention in the world?

Because tolerance is a commercial decision. Rights holders know that the fan community sustains much of the value of their franchises, and pursuing an illustrator who sells fifty prints a year is, for almost any legal department, a terrible use of resources and reputation.

What they do, constantly, is issue takedown notices. Marketplaces and print-on-demand platforms process copyright complaints as routine business, and the usual form is not a letter from a lawyer. It is an automated email saying your listing is gone. Sometimes that the whole account is gone.

Tolerance also varies enormously by rights holder. Some companies publish their policy and stand by it; others, with a strong presence in Japanese gaming, publish nothing and act case by case. Before building a shop around a single franchise, find out whether that franchise has a public policy. It is half an hour of reading and it saves months of wasted work.

Where the claims concentrate

Looking at where complaints actually land, the pattern is fairly consistent.

The high risk sits with mass-produced physical goods sold from an open catalogue: T-shirts, mugs, stickers, keyrings, figures, phone cases. This is where fan art competes directly with official merchandise, where market harm is easiest to argue, and where platform detection systems are best tuned.

The risk climbs another step if you use franchise names, logos or typefaces on the product or in the listing. That is no longer only copyright: it is trade mark, and holders act with far less patience there, because a mark that goes undefended loses strength and can end up weakened against third parties.

The tolerated zone: commissions and direct subscriptions

At the other end sits the individual commission. A client asks you for a drawing of a character, you deliver a file or a single piece, you charge for your time. It remains a derivative work in legal terms. In practice it generates the fewest problems: there is no mass production, no public catalogue competing with the official one, and it is hard to argue market harm from a one-off piece.

Something similar applies to subscriptions, where the audience buys access to an artist's ongoing work rather than a specific product. They have grown sharply for that reason, and there are now direct subscription platforms built for fan artists, such as the one cited at the start, where the illustrator charges for access and for their time rather than for a unit of product.

That said, the Riot case this article opens with is a useful reminder: some rights holders explicitly exclude paywalled content, even where the same policy permits subscriptions during a stream anyone can watch. Lower practical risk does not amount to authorisation. The format of sale and the particular rights holder are assessed separately.

What platforms require, and what they will not protect you from

Opening an account with any marketplace or payment platform means accepting terms that almost always include a representation: you assert that you hold the necessary rights to what you sell. If a claim arrives, the platform will not defend you. It removes the content and, if it recurs, closes the account.

Two practical consequences follow. First, do not build an entire business on a single channel. Second, a takedown notice is not the end of it: the counter-notification procedure exists and you can use it if you believe your use is covered. Take advice before doing so, because filing one means making a statement under penalty of perjury.

What is entirely yours

One part of the work falls outside all of this, and it is the part that gets least attention: your own characters.

An original design belongs to you completely. You can licence it, print it, sell it, assign it, use it as a brand and build on top of it without asking anyone's permission or checking any company's policy. Plenty of illustrators who started out living on fan art end up shifting the weight of their catalogue toward original work, and it is rarely out of legal fear. It is because original work accumulates as an asset and fan art does not.

Fan art brings an audience like nothing else. A catalogue that is only fan art leaves the business hanging on decisions other people make.

What to check before opening a shop

1. Look for published fan guidelines from the rights holder. Some exist and are more permissive than you'd expect.
2. Avoid official names, logos and typefaces on the product and in the listing. It is the fastest route to a trade mark complaint.
3. Assume mass-produced physical goods carry the most risk and the individual commission the least.
4. Do not rely on a single sales channel.
5. Keep sketches and layered files. They evidence authorship of your execution, which matters if someone copies your version.
6. Make room for original work from the beginning, not once a problem arrives.

A closing note

This is general information, not legal advice, and it describes the US framework. Copyright varies meaningfully between countries: US-style fair use does not exist as such in the European Union, which works from an enumerated list of exceptions, and Japan maintains a culture of tolerance toward doujinshi that does not fully match its written law.

If your project involves volume, or if you have already received a claim, consult an intellectual property lawyer in your own jurisdiction. The consultation costs considerably less than the problem.