There is no loophole. Infringement is infringement even if you're small potatoes and haven't been sued yet. This isn't a fair use issue when you're engaged in commercial sale of appropriated works.
Okay sure, maybe loophole was poor wording but my point is that this really shouldn't be considered infringement and that you should be able to sell fan-art.
It shouldn't be infringement... because you don't want it to? There is nothing special about fan art that lets you break the law even if some copyright/trademark holders have a benevolent attitude toward it.
Yeah, I mean that pretty much the gist of how most laws work. The market for fan-art is absolutely massive which operates in a weird limbo of being de facto licensed as long as the copyright holder likes it or if there would be public outcry if it was taken down.
The current system is kinda stupid. Copyright holders have no incentive to license because reserving the right to sue but not suing is used instead. This is the problem that needs to be addressed.
I want to live in the universe where the resolution is that fan-art is not considered infringement and doesn’t need licensing compared to the universe where the resolution is that all not explicitly licensed art disappears.
> It shouldn't be infringement... because you don't want it to?
Well, yes. That's how laws like copyright work; it's an agreement that we've made to try to achieve some result, with bonuses and tradeoffs. If we decide some part of it isn't working out, then we tweak it to alter the outcomes.
That's not how copyright works. All unauthorized copies are infringing. In the US the only exceptions are "fair use" and home audio recordings. Neither of which apply when selling things owned by another party.
> In the US the only exceptions are "fair use" and home audio recordings.
No, there are lots more.
Fair use is the first of over a dozen limitations and exclusions to the otherwise exclusive rights under copyright in Chapter 1 of Title 17 [0]; fair use and home audio recording aren't the only two exceptions.