Fan Merch Poses Problems For Indie Developers

Illustration for article titled Fan Merch Poses Problems For Indie Developers

Fan artists exist in a legal grey area. In order to make a living, they often sell items that bear the image of characters they don’t own the rights to. Many times they slide under the radar—I own bootleg Harry Potter and Dragon Age merch that I’ve bought at conventions. But making and selling these pins, patches and mugs can cause trouble for the original creators of the works that inspired them.


Yesterday on Twitter, Scott Benson, co-creator of the game Night In The Woods, showed what it takes to defend his own copyright while trying to explain to fans why they can’t make and sell merch based on it. “Everyone thinks it’s just kids with Etsy shops or people selling keychains at Fresno Kawaiifest or something and not, like, lots of companies that exist to exploit this,” he wrote. Benson said that companies have reached out to his family and have even called his mother, asking her to okay merch that he hadn’t approved.

“So when I’m like, ‘yeah sorry we don’t ok selling NITW stuff’ it’s in part b/c for every dozen kids to whom [I] could say yeah totally sell whatever you want, there’s a company waiting to, I kid you not, legally use that as precedent to make their own NITW stuff,” he wrote. “And they’ve tried. Repeatedly.”

Fan artists want to make the kinds of merch that isn’t being produced, for themselves and for other fans. In turn, smaller creators have to discourage that without angering their fanbase. The webcomic Homestuck went through a similar struggle, to the point where they created an FAQ about what fans can and could not sell. According to that document, art commissions are fine as long as they aren’t intended to be reproduced, but commissioned cosplay costumes are a no go. “Ultimately a cosplay costume is something that is so broad and can encompass so many items (many of which we are either selling or planning to sell) that the best move for us, legally, is to simply not allow any sales of any of those kinds of items,” they wrote.

This is not Mae Borowski.
This is not Mae Borowski.

Still, even if fans and creators cooperate, that doesn’t mean larger corporations won’t just rip off smaller creators anyway. Olly Moss’s art from Firewatch was traced for an email blast about cars. There’s also a character that looks suspiciously similar to Night In The Woods’ Mae Borowski in a commercial about Taylor Swift’s latest album. “Copyright law wasn’t made to protect folks like us,” Benson wrote this morning on Twitter. “It was made for Disney.”



As an attorney I’ve had to protect a few clients for this myself. And yeah, it sucks for the fanbase but for small indies and people who are just getting started in the creative industry allowing fan works to be sold not only directly competes with your ability to put out your own merchendise but also sets precident that you aren’t properly protecting your IP so a larger company can take advantage of that.

Some of my clients when they first come to me are most concerned about making sure no one else can use their work without permission and I have to warn them that to a certain extent (with trademark) they will need to activley police their use. With copyright policing is less necessary but if a larger companie decides to start making fan merch along with general fans you will have a harder time fighting them because 1. they can more likely afford a lawsuit and 2. they will absolutely bring into court all sorts of merchandise from other people you didn’t authorize.