!Images of the word copyright and clothing rack of costumes

Halloween is the most wonderful time of year, some would argue. Adults and kids alike are brainstorming costume ideas and coordinating with family and friends. This year, the popular costumes are set to be characters from KPop Demon Hunters, Superman, and Wicked.

During spooky season, there'll be plenty of demand for costumes, from pop culture icons to the classic monsters. To meet the demand, online sellers offer character-inspired outfits and fan art. But is it legal to sell fan-made costumes and other creations? If not, how do people get away with selling fan art online?

We’ll look at the copyright implications of capitalizing on popular characters and review some best practices for your online business.

In This Article

Understanding Intellectual Property Rights: Copyright vs. Trademark

Many characters that we know and love are protected by copyright. Meanwhile, brand names and logos are protected by trademark rights. The owners of these intellectual property rights have exclusive control over how their brands and characters are used, depicted, and sold.

Let’s break down these property protections and how they apply to fan art and costumes.

What Is a Copyright?

A “copyright” is a right attached to an original work of authorship that’s fixed in a tangible form of expression. A copyright requires some degree of creativity by a human author. It must appear in a permanent medium so that it can be perceived, reproduced, or communicated. (17 U.S.C. § 102 (2025).)

Some examples of copyrightable works include:

  • characters
  • books
  • songs
  • movies
  • photos
  • artwork, and
  • software.

When you own a copyright, you exclusively choose how the copyrighted work is reproduced, distributed, performed, and displayed. For instance, you have the exclusive right to print and sell shirts, hats, and other accessories with your copyrighted characters on them. (17 U.S.C. § 106 (2025).)

You also own all derivative works. A “derivative work” is a work that’s based on a preexisting work, such as a dramatization, fictionalization, or art reproduction. For example, the James Bond movie franchise is a derivative work of Ian Fleming’s novels about the British spy.

A copyright is created as soon as you fix your original work in a tangible medium. As soon as you post your poem on a website, it becomes a copyrighted work. Or, as soon as you record a song, you have a copyright in that song. But you only have the right to sue someone for copyright infringement if you register your copyright with the U.S. Copyright Office.

“Copyright infringement” is when someone reproduces, distributes, performs, or displays a copyrighted work without permission. (17 U.S.C. § 501 (2025).)

What Is a Trademark?

A “trademark” is a right attached to a word, design, phrase, or combination of those elements that identifies the source of products or services and distinguishes those goods and services from others. A trademark is associated with a specific set of goods or services. (15 U.S.C. § 1127 (2025).)

But famous brands like Disney and Star Wars are usually associated with a large number of goods and services, from video games to baseball bats to cereal. So, chances are the goods you want to sell from that famous brand are protected by a trademark.

The important question to ask is whether a customer would be confused about the source of the goods or services you offer. For instance, suppose you sell shirts on Etsy and your listing has the description “Disney shirts.” It could be reasonable for a customer to believe that you have some affiliation or official connection with Disney.

You have trademark rights for as long as you use your trademark. When you start using your mark in association with your goods or services, you automatically gain common law rights in your trademark. You can enforce your regional trademark rights in state court. To enforce your trademark rights nationally in federal courts, you must register your trademark with the U.S. Patent and Trademark Office.

“Trademark infringement” is when you use a brand, phrase, or symbol that's the same as or confusingly similar to an existing trademark for related goods or services.

Most intellectual property infringement in the e-commerce space is related to copyright infringement. So we’ll focus the bulk of this article on how to identify and avoid copyright infringement. Specifically, we’ll look at how online sellers can sell fan art legally.

Is It Legal to Sell Fan Art Online?

“Fan art” is any art that’s created by a fan of a fictional work. Fan art typically includes drawings, videos, and sculptures. For example, someone might paint a picture of Pikachu eating ice cream, animate a video of Chewbacca doing a popular dance, or sew together an Elsa costume. The work is original, but the character isn’t. It’s a derivative work.

So, is selling fan art illegal? Oftentimes it is. Most instances of people selling fan art are cases of copyright infringement. But in some cases, selling fan art isn’t copyright infringement and is, therefore, legal.

Generally, you can sell fan art legally when:

  • you have the copyright owner’s permission
  • the original work is part of the public domain, or
  • your work is protected under the fair use doctrine.

Let’s discuss these exceptions in detail.

How to Avoid Copyright Infringement

As mentioned previously, selling fan art isn’t always illegal. You can avoid infringing on someone else’s copyright in three major ways.

Get the Copyright Owner’s Permission

Copyright infringement is when you copy someone else’s work without their permission. But if you have the owner’s permission to reproduce their work, then your use is no longer infringement.

You can get permission to use a copyrighted work by:

  • Directly contacting the copyright owner (or their representative). If you wanted to sell pajamas with images of Stitch on them, then you could contact Disney, the owner of the copyright for the character Stitch. Larger companies typically have license request forms you can submit through their website. For example, you can access an online submission form for Disney through the Walt Disney Studios Licensing Website. The copyright owner will decide whether to grant permission. You’ll usually have to pay a licensing fee to use the copyrighted work.
  • Participating in a licensing program. Some sites offer brand partnership programs. These programs allow sellers to legally use copyrighted works by providing a streamlined process for consent. For instance, Redbubble has its Partner Program and TeePublic has its Fan Art Program. Essentially, you create fan art using the owner’s terms and conditions and submit your art for review. If the owner approves your fan art, then you can legally sell your fan art on the site.

You can find out which person or company owns a copyrighted work by searching the U.S. Copyright Office’s Copyright Public Records System. When you buy merchandise, you’ll usually also see a blurb that identifies the copyright or trademark owner.

Use Characters in the Public Domain

A copyright lasts for a set period of time. Characters in the public domain have expired copyrights. These characters were once protected by copyright, but are now free and available to the public to use.

For works published before January 1, 1978, a copyright lasts 95 years. For works published after January 1, 1978, the copyright lasts the lifetime of the creator plus 70 years. This copyright period applies regardless of whether or when you register your copyright. (17 U.S.C. § 302 (2025).)

Many iconic stories and characters have already entered the public domain. You can feel free to make fan art and costumes related to these characters without risk of copyright infringement:

  • Dracula
  • Frankenstein’s monster
  • Wolf Man
  • Peter Pan
  • King Kong
  • Robin Hood
  • Winnie the Pooh
  • Zorro
  • Hercules, and
  • characters from Alice in Wonderland.

For example, you can make a Robin Hood costume, sell a King Kong suit, or print t-shirts with the classic monsters on them.

You can directly copy these original copyrighted characters or create your own version of them. But you can’t reproduce the versions and depictions of these characters that are still copyrighted.

For example, suppose you want to create some coasters with Dracula on them for the Halloween season. You can draw an image of Dracula and use the Dracula name. But you can’t use images from the 1992 film, Bram Stoker’s Dracula. The film’s depiction of Dracula and its accompanying images are protected by copyright. The basic characteristics of Dracula are still available to use, though.

Many of the princesses that Disney uses are based on characters in the public domain. For instance, Cinderella, Snow White, and The Little Mermaid are all in the public domain. But Disney’s versions of these characters, including the character designs, are typically protected by copyright.

You could, for instance, sell a costume that includes a mermaid tail and crown. You could then use the description “mermaid princess” for your handmade costume. Your use would likely not violate any copyright law because you're simply using public domain content.

The Fair Use Doctrine in Copyright

One of the main defenses to copyright infringement is the fair use doctrine. Generally, you can’t reproduce, distribute, perform, or display a copyrighted work unless your use of the work is considered fair use.

To consider whether a work is fair use, a court will weigh four factors:

  1. The purpose and character of the use. How you use the copyrighted work matters. Specifically, courts will analyze whether your work is transformative. If your fan art transforms the intention or use of the original work, then you’re more likely to have a case of fair use. In addition, commercial use weighs against the fair use defense. Academic or nonprofit uses will weigh in favor of fair use.
  2. The nature of the copyrighted work. Works based on factual works, like biographies, are more likely to be protected by fair use. If the original work is fictional and created for entertainment purposes, this factor will weigh against the fair use defense.
  3. The amount of the copyrighted work used. The court considers how much of the copyrighted work is used, including which part of the work is copied. If your fan art samples a large percentage of the original work or the portion you copy is at the heart of the copyrighted work, then this factor will weigh against the fair use defense.
  4. The use’s effect on the market or value of the copyrighted work. The court will look at whether your use will hinder market sales for or negatively impact the value of the copyrighted work. If your use hurts the value or market potential of the copyrighted work, then this factor will weigh against the fair use defense.

(17 U.S.C. § 107 (2025).)

If you plan to copy or create a derivative of a copyrighted work, you should pay attention to these four factors and whether your work can be protected by fair use. These types of works can typically qualify as fair use:

  • criticism and commentary
  • parody
  • news reporting
  • research and academic, and
  • nonprofit educational uses.

If you’re selling items, you won’t qualify for the last three types of fair use. But you could qualify for fair use as criticism, commentary, or parody.

But just because your work qualifies as fair use, it doesn’t mean that the copyright owner won’t come after you. Fair use is a defense to copyright infringement. Even if your work is legal, the copyright owner might flag your online store as infringing and demand that you stop selling your fan art. You can choose to argue either that your fan art qualifies as fair use or to comply with the owner’s demands.

Most sellers are small and don’t have the funds to fight larger companies. So even if you legally can sell an item under fair use, it doesn’t mean that this option is financially practical.

Nominative Fair Use of Trademarks

Similar to the fair use defense for copyright infringement, you can freely use a trademark under the nominative fair use exception. You can use a trademark if:

  • the good or service isn’t readily identifiable without the trademark
  • you only use the trademark as necessary to identify the good or service, and
  • you don’t use the trademark in a way that would imply sponsorship or endorsement by the trademark owner.

In practice, you can reference a trademark to describe a good or service or to compare goods or services to your own.

Best Practices for Selling Fan Art

When selling fan art, you should follow some best practices to help you avoid allegations of copyright infringement.

Know the copyright basics. Before you sell your fan art, make sure you know the basics of copyright and the particular fandom you’re creating fan art from. You should know who owns the copyright to the stories and characters you’re using, how long the copyright lasts, and whether you have a defense to your use of the work.

Take advantage of the public domain. You’ll find plenty of characters and stories in the public domain, and more are being added every year. For example, Superman and Batman will enter the public domain in 2034 and 2035, respectively. Just remember that later copyrighted versions of characters and stories could exist. Make sure you understand what part of a story or character has entered the public domain.

Add a disclaimer. A copyright disclaimer won’t automatically protect you from blatant copyright infringement. But it’s helpful to include to assert your intention in creating the work. Your disclaimer should include a statement that you don’t own the copyright to the original work and, if applicable, that your use is protected by the doctrine of fair use.

Add transformative elements to your work. The more transformative your fan art, the better. If you’re inspired by a certain show or book, try depicting the characters or story in a way that creates a new meaning or message.

Limit your use of elements original to the copyrighted work. When you create fan art, it’s impossible not to incorporate recognizable elements of the original work. But your use should be limited and only the amount necessary to create your own work.

Don’t use trademarked words, logos, or phrases. Avoid using any names, phrases, or images that tie your fan art to a copyright or trademark owner. Instead, use generic or descriptive words in your listing.

You’ll likely come across plenty of sellers who sell copyrighted works through their online stores. Some of them have received the appropriate licensing to do so. Others are selling work that qualifies as fair use.

But you’ll see plenty of cases where the seller hasn’t gotten permission from the copyright owner, and their goods are far from fair use. In those cases, usually the copyright owner either doesn’t know about or is okay with the alleged infringement.

Many copyright owners see fan art as helpful to their brand and their own bottom line. These copyright owners often encourage fan art. They simultaneously don’t want to sour any goodwill they’ve built with their fanbase by going after smaller fan art sellers.

But you shouldn’t assume that the copyright owner will appreciate your work. If you want to build a business selling fan art, then you’ll certainly have the demand. But because this area of law can be complicated and a DMCA notice can undermine your business model, it can be a worthy investment to talk to a copyright attorney. You can run your listings by your lawyer and see what steps you can take to mitigate your risk of copyright infringement. You should also consider speaking with a lawyer if you receive a DMCA takedown notice or a cease-and-desist letter.