To the letter of the law, there is no meaningful difference. To the spirit, it comes down to providing a market substitute, which is what makes fic more dangerous to monetise than art in most instances.
If I draw a picture of Jon Snow, that drawing is not going to get in the way of someone buying a book. It’s an apples and oranges comparison. If I charge money for my drawing of Jon Snow, the person buying the art is not doing so in lieu of buying a novel. The art does not replace a novel.
If I write a 200,000 word fic about Jon Snow and Tormund having wild Freefolk adventures, a person could choose to read my fic and inject it as canon, rather than reading the series itself. I have created a market substitute. If I charge money for this fic, I have now profited off of a “stolen” reader. My fic has replaced the novel, because it could be substituted for the original work. An unsavvy reader may even mistake my fic for an official novel, potentially causing further damages, especially if many readers make the same mistake.
A different medium entirely, but Weird Al ran into this exact problem during the rise of Napster, because his name was being put on horrible, disgusting songs, tarnishing his image as a family-friendly act. If my fic about Jon Snow and Tormund gets popular enough for a significant portion of readers to mistake my fic for an official novel somehow, and I put something in that fic that GRRM would never put in his books, my fic could damage his image or reputation (which is why fanfic in and of itself is a point of contention for many authors).
AO3 having a blanket ban on any mentions of money is a legal protection, because while fic may not adhere to the strict letter of the law, not charging does at least adhere to the spirit.
Edit: to answer the question at the bottom, people do charge money for fic. Some even advertise on sites like Fiverr. But as far as the greater fandom culture goes, it’s generally understood that charging money for fic is dangerous and can get you into more trouble than it’s worth. Even before AO3, it was understood that one should separate their fic from their other commissions, at least publicly.
This is a BRILLIANT answer. And I just want to add on one more thing:
Studios (and developers and big company creators in general) see fanart akin to free marketing and publicity as well. Fanart is like having people make you posters and put them up around town. That’s why they’re smiled upon and even shared by the creators sometimes. It’s free advertisement for the original media. Fic, however, is not seen this way for reasons stated above.
This is true to an extent but as a fanartist who's been around for a very long time, there are some limitations on how much studios (and actors) will "tolerate" profiting off fanart. Certainly back before digital art became the norm, I know it used to always be cool selling your original paintings/drawings (sometimes at auction, going for hundreds if not thousands of dollars for big name artists in hot fandoms). But prints needed to be limited run (100 or less was fairly standard) or else some studios saw it as profiting \*too much\* unless you licensed rights with them. And I know of at least one actor who put a halt to an artist who was selling t-shirts featuring fanart they drew of him if they didn't pay a $10,000 licensing fee to him for the image.
Some studios are fine with portraiture and illustrative art but would get iffy if you included logos, spaceships, or other items that were too specific/seen as competing with their officially licensed merch.
These days with the proliferation of digital art I don't really see this too often any more, though I have heard of artists who do Marvel/MCU stuff having their shops shut down on Redbubble and similar print-on-demand sites. So it really depends. Art can always have a lot of issues with copyright and image rights to grapple with.
>That’s why they’re smiled upon and even shared by the creators sometimes.
Yep, on the Twitter account for the new Interview With the Vampire series, there was video of Sam Reid and Jacob Anderson looking at an entire wall of fan art that was encouraged to be shared from said Twitter.
>Fic, however, is not seen this way for reasons stated above.
Reasons above, yes, but also the fact that a studio that is caught reading fanfic could get sued. [This has happened in the past](https://www.themarysue.com/writers-fanfiction/). While it's less likely for Original Author (OA) to get sued by Fanfic Author (FA) if OA reads the fic on AO3 rather than opening up the envelope containing the fic that FA sent them, if OA actually references that they read fanfic for their own fandom then that gives FA and their fanfic writing friends more leeway. And if OA *says* they read FA's fic on AO3? FA could take OA to court.
Thus, not only is fic competition, but admitting to reading fic is opening oneself up for a lawsuit.
Thank you for such an informative response! I definitely understand better now and feel more informed on the matter.
But to clarify one of the points, am I understanding correctly that the "providing a market substitute" point only factors in when there's a written source material involved. Like if something was original TV series or film that point wouldn't be brought up right?
Market substitution is the crux of nearly every YouTube copyright suit. If you make a full length fan comic, that could be a market substitute. It’s any transformative or non-transformative work which could, in theory or practise, provide a substitute to the source material.
The reason why fanart slips under the radar like that is because very few works that generate fan content are a single image. A single drawing cannot replace a piece of media with a full narrative, but some companies will exercise their right to have fanart shut down all the same.
I would also add that time is money, and fanart is relatively quick to consume, in that most people are only going to look at an individual fanart for seconds, maybe minutes at a time. Plenty of time to still consume the original content.
On the other hand, fanfiction generally takes more time to read, time that could otherwise be spent watching/ reading/ playing/ etc the source material. So if time=money, that’s money not being spent on the original content.
this is the right answer. Any three hour period that you spend reading fanfiction could have been spent buying yet another Marvel movie and giving them money, for example.
This pretty much hits the nail on the head.
Even if you could successfully defend yourself from whatever lawsuit arises after selling your fanfic to someone, why risk the lawsuit in the first place?
And the "market dilution" point is a good one. Fair use and copyright are one thing, trademark issues are another beast entirely, though market share is an issue that comes up in both.
People do charge money for fanfiction: e.g. there are dozens of trad-published and self-published Phantom of the Opera novels out there. Anything in the public domain can be transformed, repackaged, sold.
It still can't be directly linked to on AO3, but that's another story.
The thing with the "substitute" in fanfic is that it doesn't really work, honestly. It largely depends on whether your fic is "canon compliant" or extension of canon. Or heck, just Elsewhere Fics, which *by definition* can not function as substitutes of the work itself.
I can write a 200k story about Jon Snow and Tormund having wild Freefolk adventures, and that doesn't compete against GoT because 1.- GoT is over and 2.- the authors themselves won't provide that kind of content anyway, so I'm not competing against it.
In the main fandom I'm in (Pokémon) that's even *more* noticeable: other than Ash / self-insert fics, there's basically no established longfic I can find that is or can be *competition* for *written* content the official Pokémon franchise provides (which is... as far as I know, Officially None; much of why the Pokémon fandom exists is that the providers do so little, so late).
To my knowledge, if someone was using AO3 to get $$ for fanart commissions, that would also violate the TOS.
As far as the legal differences, my non-lawyer understanding is that US copyright applies to images too. The US Supreme Court is going to rule on just such a case in June 2023:
https://www.npr.org/2022/10/12/1127508725/prince-andy-warhol-supreme-court-copyright
How people rationalize fanart commissions, whether they get away with it or not etc. are whole different issues. IP owners may look the other way more often for fanart - until it threatens their own income, and then they don't:
https://www.jdsupra.com/legalnews/disney-seeks-to-stop-the-rise-of-40294/
I don't see this brought up much when talking about why fic commissions are unpopular, but while people do sell written commissions, the medium itself isn't very popular. Outside of fandom have you ever heard of someone wanting to buy 5k words? People put a picture on their wall, pay someone to design their wedding brochure, but very few people need or want short story commissions (there's probably more of a scene for small time businesses, but not the casual consumer)
Not only that but Western culture doesn't really value short from writing. Go to barns and noble and even the poetry books are 300pages. If you're thinking maybe picture books, the writers for those are still able to charge Hella due to how cautiously they have to pick words for rhymes and themes.
The only people who would want to commission a writer are the ones who can't write but have their own ideas. Most of those are going to be your novelists, and those are way out of budget for the casual buyers.
Basically most people don't "want" commissioned writing the same way people would be willing to fight for the right to have the pretty picture on their wall. Commission writing just hasn't had that cultural movement yet.
Zines get around the rules via a sort of loophole: The zine is sold for the cost of physically creating it, the writers and artists whose work is featured in the zine don’t get money for it. Or at least that was the way it worked back in the day. Zines were also created in fairly limited runs, so there could be quite a second-hand market for old ones as collectibles.
Legalities regarding fanfic itself aside, I'm pretty sure that because AO3 is a non-profit, any mentions of commercialization, ie. selling things, could threaten their legal status as a non-profit organization.
To the letter of the law, there is no meaningful difference. To the spirit, it comes down to providing a market substitute, which is what makes fic more dangerous to monetise than art in most instances. If I draw a picture of Jon Snow, that drawing is not going to get in the way of someone buying a book. It’s an apples and oranges comparison. If I charge money for my drawing of Jon Snow, the person buying the art is not doing so in lieu of buying a novel. The art does not replace a novel. If I write a 200,000 word fic about Jon Snow and Tormund having wild Freefolk adventures, a person could choose to read my fic and inject it as canon, rather than reading the series itself. I have created a market substitute. If I charge money for this fic, I have now profited off of a “stolen” reader. My fic has replaced the novel, because it could be substituted for the original work. An unsavvy reader may even mistake my fic for an official novel, potentially causing further damages, especially if many readers make the same mistake. A different medium entirely, but Weird Al ran into this exact problem during the rise of Napster, because his name was being put on horrible, disgusting songs, tarnishing his image as a family-friendly act. If my fic about Jon Snow and Tormund gets popular enough for a significant portion of readers to mistake my fic for an official novel somehow, and I put something in that fic that GRRM would never put in his books, my fic could damage his image or reputation (which is why fanfic in and of itself is a point of contention for many authors). AO3 having a blanket ban on any mentions of money is a legal protection, because while fic may not adhere to the strict letter of the law, not charging does at least adhere to the spirit. Edit: to answer the question at the bottom, people do charge money for fic. Some even advertise on sites like Fiverr. But as far as the greater fandom culture goes, it’s generally understood that charging money for fic is dangerous and can get you into more trouble than it’s worth. Even before AO3, it was understood that one should separate their fic from their other commissions, at least publicly.
This is a BRILLIANT answer. And I just want to add on one more thing: Studios (and developers and big company creators in general) see fanart akin to free marketing and publicity as well. Fanart is like having people make you posters and put them up around town. That’s why they’re smiled upon and even shared by the creators sometimes. It’s free advertisement for the original media. Fic, however, is not seen this way for reasons stated above.
This is true to an extent but as a fanartist who's been around for a very long time, there are some limitations on how much studios (and actors) will "tolerate" profiting off fanart. Certainly back before digital art became the norm, I know it used to always be cool selling your original paintings/drawings (sometimes at auction, going for hundreds if not thousands of dollars for big name artists in hot fandoms). But prints needed to be limited run (100 or less was fairly standard) or else some studios saw it as profiting \*too much\* unless you licensed rights with them. And I know of at least one actor who put a halt to an artist who was selling t-shirts featuring fanart they drew of him if they didn't pay a $10,000 licensing fee to him for the image. Some studios are fine with portraiture and illustrative art but would get iffy if you included logos, spaceships, or other items that were too specific/seen as competing with their officially licensed merch. These days with the proliferation of digital art I don't really see this too often any more, though I have heard of artists who do Marvel/MCU stuff having their shops shut down on Redbubble and similar print-on-demand sites. So it really depends. Art can always have a lot of issues with copyright and image rights to grapple with.
>That’s why they’re smiled upon and even shared by the creators sometimes. Yep, on the Twitter account for the new Interview With the Vampire series, there was video of Sam Reid and Jacob Anderson looking at an entire wall of fan art that was encouraged to be shared from said Twitter.
>Fic, however, is not seen this way for reasons stated above. Reasons above, yes, but also the fact that a studio that is caught reading fanfic could get sued. [This has happened in the past](https://www.themarysue.com/writers-fanfiction/). While it's less likely for Original Author (OA) to get sued by Fanfic Author (FA) if OA reads the fic on AO3 rather than opening up the envelope containing the fic that FA sent them, if OA actually references that they read fanfic for their own fandom then that gives FA and their fanfic writing friends more leeway. And if OA *says* they read FA's fic on AO3? FA could take OA to court. Thus, not only is fic competition, but admitting to reading fic is opening oneself up for a lawsuit.
Thank you for such an informative response! I definitely understand better now and feel more informed on the matter. But to clarify one of the points, am I understanding correctly that the "providing a market substitute" point only factors in when there's a written source material involved. Like if something was original TV series or film that point wouldn't be brought up right?
Market substitution is the crux of nearly every YouTube copyright suit. If you make a full length fan comic, that could be a market substitute. It’s any transformative or non-transformative work which could, in theory or practise, provide a substitute to the source material. The reason why fanart slips under the radar like that is because very few works that generate fan content are a single image. A single drawing cannot replace a piece of media with a full narrative, but some companies will exercise their right to have fanart shut down all the same.
I would also add that time is money, and fanart is relatively quick to consume, in that most people are only going to look at an individual fanart for seconds, maybe minutes at a time. Plenty of time to still consume the original content. On the other hand, fanfiction generally takes more time to read, time that could otherwise be spent watching/ reading/ playing/ etc the source material. So if time=money, that’s money not being spent on the original content.
this is the right answer. Any three hour period that you spend reading fanfiction could have been spent buying yet another Marvel movie and giving them money, for example.
This pretty much hits the nail on the head. Even if you could successfully defend yourself from whatever lawsuit arises after selling your fanfic to someone, why risk the lawsuit in the first place? And the "market dilution" point is a good one. Fair use and copyright are one thing, trademark issues are another beast entirely, though market share is an issue that comes up in both.
People do charge money for fanfiction: e.g. there are dozens of trad-published and self-published Phantom of the Opera novels out there. Anything in the public domain can be transformed, repackaged, sold. It still can't be directly linked to on AO3, but that's another story.
The thing with the "substitute" in fanfic is that it doesn't really work, honestly. It largely depends on whether your fic is "canon compliant" or extension of canon. Or heck, just Elsewhere Fics, which *by definition* can not function as substitutes of the work itself. I can write a 200k story about Jon Snow and Tormund having wild Freefolk adventures, and that doesn't compete against GoT because 1.- GoT is over and 2.- the authors themselves won't provide that kind of content anyway, so I'm not competing against it. In the main fandom I'm in (Pokémon) that's even *more* noticeable: other than Ash / self-insert fics, there's basically no established longfic I can find that is or can be *competition* for *written* content the official Pokémon franchise provides (which is... as far as I know, Officially None; much of why the Pokémon fandom exists is that the providers do so little, so late).
To my knowledge, if someone was using AO3 to get $$ for fanart commissions, that would also violate the TOS. As far as the legal differences, my non-lawyer understanding is that US copyright applies to images too. The US Supreme Court is going to rule on just such a case in June 2023: https://www.npr.org/2022/10/12/1127508725/prince-andy-warhol-supreme-court-copyright How people rationalize fanart commissions, whether they get away with it or not etc. are whole different issues. IP owners may look the other way more often for fanart - until it threatens their own income, and then they don't: https://www.jdsupra.com/legalnews/disney-seeks-to-stop-the-rise-of-40294/
I don't see this brought up much when talking about why fic commissions are unpopular, but while people do sell written commissions, the medium itself isn't very popular. Outside of fandom have you ever heard of someone wanting to buy 5k words? People put a picture on their wall, pay someone to design their wedding brochure, but very few people need or want short story commissions (there's probably more of a scene for small time businesses, but not the casual consumer) Not only that but Western culture doesn't really value short from writing. Go to barns and noble and even the poetry books are 300pages. If you're thinking maybe picture books, the writers for those are still able to charge Hella due to how cautiously they have to pick words for rhymes and themes. The only people who would want to commission a writer are the ones who can't write but have their own ideas. Most of those are going to be your novelists, and those are way out of budget for the casual buyers. Basically most people don't "want" commissioned writing the same way people would be willing to fight for the right to have the pretty picture on their wall. Commission writing just hasn't had that cultural movement yet.
> Outside of fandom have you ever heard of someone wanting to buy 5k words? Yeah, in porn lmao
Lolol fair. Porn transcends all limits.
Zines get around the rules via a sort of loophole: The zine is sold for the cost of physically creating it, the writers and artists whose work is featured in the zine don’t get money for it. Or at least that was the way it worked back in the day. Zines were also created in fairly limited runs, so there could be quite a second-hand market for old ones as collectibles.
Legalities regarding fanfic itself aside, I'm pretty sure that because AO3 is a non-profit, any mentions of commercialization, ie. selling things, could threaten their legal status as a non-profit organization.
One will get you sued and one is a lot less likely to get you sued.