There’s a terrific discussion on Twitter of how fanartists have been “discover

There’s a terrific discussion on Twitter of how fanartists have been “discovered” online, or included fanart in portfolios or other showcases, which have led to freelance and salaried jobsAnd websites and apps like the Hamilton app ask for fanart submissions which feature work by artists who are looking for exposure (and not necessarily looking to be paid for something they’ve created out of love for a show, character, film, band, etc. The language in the Hamilton ToU is generally great - they’re asking for a license, not an assignment, and they say that they will not sell any stickers made from the fanart that a fan submits pursuant to this Agreement. The one line in it - and other similar agreements - that makes some people uncomfortable is the statement that the submitter acknowledges that the submission “is a derivative work based on intellectual property owned exclusively by the Company.” But right now, the Second Circuit (which includes New York) and many other circuits as well hold that while transformative works are a subset of derivative works, if they are Fair Use, then the limitations that would otherwise prevent a person from creating and sharing a derivative work without consent would not necessarily apply. Now, we can all think of Hamilton fanart that isn’t a derivative work at all – using words written/said by any of the characters, in a revolutionary font or red-white-blue colors would be inspired by Hamilton but wouldn’t actually be a derivative work, so I do wish the show’s legal team would tweak that language a bit (ie “…is either a derivative work based on intellectual property owned exclusively by the Company or a work based entirely on content or information that is in the public domain…” but the agreement on the app isn’t a rights grab. It’s a good thing to keep in mind when you share fanart with The Powers That Be - unless they’re paying for it, don’t submit if the Terms of Use demand an assignment of your rights, but do note that if they’re asking for a license, you still own the original aspects of what you’ve created. I’ve been keeping my eye on agreements where fans license or even assign rights to their fanworks since well before we wrote about a Random House project at San Diego Comic Con in 2012, and this is a lot better than what we were seeing five years ago. And take a peek at the gorgeous art in the #fanartgotmepaid tag.  That’s a discussion for another day…. -- source link

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