# Fan Fiction v. Copyright



## Steerpike (Jul 27, 2012)

An informative video for those who are interested:


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## Androxine Vortex (Jul 27, 2012)

There is actually a big copyrights issue in Warhammer. There are different versions of the story but basically there was a dispute over who owned rights to a Gamesworkshop character. I forget his name but he created a Chaos God named Malal and sent it in for Gamesworkshop and they liked it and was used in several Warhammer comics and books. So technically Malal was not made by GW. But in the end there was a disagreement about who owned the rights and profits so the creator had to take all of his work back and Gamesworkshop discontinued Malal immediately.

EDIT: "Use of Malal in further Games Workshop productions ceased around 1988, the same year the first of the two Realm of Chaos background books was published. Malal is not referred to or mentioned at all in these products. There was also an uncertainty as to who actually owned the rights to the concept of Malal -- the comic's authors or Games Workshop."
-Warhammer Wiki

What is interesting is that GamesWorkshop converted the comic artist's "Malal" into what they call "Malice" and is set in the 40K setting of warhammer and not the original fantasy.


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## Christopher Wright (Jul 27, 2012)

I know there are authors who HATE fan fiction. JK Rowling is one. She rambled something about her characters being her "children" and was therefore very possessive of them. I mean there are authors who HATE, HATE, HATE, HATE fan fiction and if they find out about it they'll hire the lawyers and send 'em out.

So I'm glad there's apparently some legal precedent for applying the fair use doctrine in some situations.

Of course other authors either have no problem with it, or like it, or even engage in it themselves. Cory Doctorow specifically changed his licensing over from a Creative Commons NonCommercial No-Derivs license to a CC-NC-Share Alike license in order to to specifically permit noncommercial fanfic.


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## Steerpike (Jul 27, 2012)

@Christopher: Yes, there are Fair Use considerations, and even issues concerning whether Fair Use is even needed in some case. But if an author with JK Rowling's money comes after you, it could cost you hundreds of thousands of dollars to prevail even if you are in the right.

@Androxine: That raises a number of issues. The extent to which the submitted character was copyright-protected; whether someone else did the artwork for character design; whether anyone ever assigned copyright, and so on. It can get somewhat complex and the status of the work, or components of the work, can't always be resolved with certainty.


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## Benjamin Clayborne (Jul 28, 2012)

I don't mind the idea of fanfic, as long as it's kept out of the public eye. The main reason is that fanfic can cause one very specific, very large problem for an author: If someone writes fanfic that contains elements similar to something the author is writing, the author now has to be concerned about charges of _them_ committing plagiarism, or worse, force them to abandon or rewrite an entire novel (which has happened a few times to established authors).

If (Godzilla willing) I ever get famous enough to inspire fanfic of my work, I'd be flattered -- but I'd also ask that people not publish it on the Internet (not even for free).

Aside from that, I don't have a problem with it.


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## Steerpike (Jul 28, 2012)

Benjamin, the interesting thing is that authors probably don't have the right to do that (ask that none of it be posted on the internet). There is a lot of Fair Use territory and also some ground that doesn't even fall under copyright where fanfic authors can operate, and there's no legal recourse for the author to stop it. If they have enough money they can just spend the fanfic author into oblivion with lawsuits, but that doesn't seem like a particularly moral thing to do.


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## Benjamin Clayborne (Jul 28, 2012)

Steerpike said:


> Benjamin, the interesting thing is that authors probably don't have the right to do that (ask that none of it be posted on the internet). There is a lot of Fair Use territory and also some ground that doesn't even fall under copyright where fanfic authors can operate, and there's no legal recourse for the author to stop it. If they have enough money they can just spend the fanfic author into oblivion with lawsuits, but that doesn't seem like a particularly moral thing to do.



I didn't say I was going to use legal force against them, I said, "but I'd also *ask* that people not publish it on the Internet (not even for free)." I certainly have the right to ask that, even if they aren't obligated to obey.

That said, fair use considers several factors, and fanfic typically doesn't (in my view) meet the standard of fair use. Fanfic is rarely, if ever, for educational purposes (although it is usually entirely nonprofit); it is usually derivative, not transformative; it almost by definition appropriates a substantive amount of material; and it can have a negative effect on the work's value (though not always, if somehow the fanfic increases the popularity of the original). I doubt that most fanfic would survive a copyright challenge, but it's not usually worth the effort for the author, because people who write fanfic don't typically have a lot of money.

Unless someone was actually trying to profit specifically off my copyrighted material, I'd probably leave them alone. Giving free copies to your friends is one thing (hey, exposure! yay!) but as soon as you start earning something tangible from it, I will summon demonic copyright lawyers.


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## T.Allen.Smith (Jul 28, 2012)

That and it probably doesn't make great business sense to start attacking your most zealous fan base.


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## Steerpike (Jul 28, 2012)

@T.Allen - True. That doesn't seem like a good move.

@Benjamin - Some authors do challenge it, though. I don't agree with your analysis of the Fair Use factors. Some fanfic meets your criteria, but not all of it. Some doesn't appropriate a substantial portion of the original work; it can certainly be transformative; and I find the negative effect argument to be dubious is most cases. Also, as I noted above, there may also be little or no copyright protection for certain aspects of the original work, in which case you don't even have to look at Fair Use. Also, I should note that something sold commercially can still be Fair Use. That factor is not controlling, though it can be an important one.


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## Ravana (Jul 28, 2012)

Hmm. 



> …the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.*



Since fanfic is not criticism, comment, news reporting, teaching, scholarship, or research, I can't see how Fair Use would apply to it in any way whatsoever. Other sections of copyright law may–in some cases undoubtedly do–apply to fanfic of various sorts, but not this one: it neither permits nor prohibits fanfic. Unless you can somehow pass the fanfic off as a parody, maybe… which is generally transformative, whereas fanfic is generally derivative.

(Unless you're trying to parody Terry Pratchett, in which case you'd still end up being derivative even where you were being transformative.…  )

-

[* 17 U.S.C. Â§ 107… which of course I'm reproducing under the Fair Use doctrine. Comment and teaching exemptions, obviously. Well, and assuming the U.S.C. is actually itself copyrighted… which I'm not clear on.]


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## Steerpike (Jul 28, 2012)

It says for purposes "such as." It isn't an exhaustive list. Courts have applied the Fair Use analysis to fanfic cases, which wouldn't be necessary if fanfic didn't have the potential to fall under Fair Use. It is worth noting that fanfic could certainly be a vehicle for criticism or commentary as well.


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## Mindfire (Jul 28, 2012)

I hate fanfic. There's a special place in hell for those who write slash fiction. -_-


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## Steerpike (Jul 28, 2012)

Mindfire said:


> I hate fanfic. There's a special place in hell for those who write slash fiction. -_-



Whether you like fanfic or not, we have people who write it on the forums. There is probably a more reasonable way to characterize them.


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## Ireth (Jul 28, 2012)

I love writing fanfic myself, though I'm a little leery at the thought of anyone writing it for my stories. There are so many potential storylines that would go completely against the grain of the story's entire point (Ariel and Fiachra falling in love in a _Winter's Queen_ fic, for example), or put stuff in there that is absolutely NOT there in canon (adding in relationships between the two human male leads and their female Fae companion, or - gag! - between the brothers themselves).

I now realize I sound hypocritical on that second point, since I've done much the same thing with various fanfics over the years (meaning deviating from canon, not delving into slash). But I, like Rowling, think of my characters as something akin to children, and pushing them out of the nest and into the public eye is a kind of scary thought. Then again, the only stories I've written publically-posted fanfic for are by authors long dead (with one exception) -- Tolkien and Mary Shelley. The exception is the creators of _V for Vendetta_, whom I assume are still alive. I do have a crossover fic in progress between two other fandoms, but as it's only just started it doesn't fall under "publically-posted" (yet, if at all).

That said, I know I can't stop lots of people from writing fanfic of my characters even by asking nicely. I guess the best thing I can do is to let it happen and make a point of reading none of it. That keeps the fic-writers happy, and frees me of any risk of being accused of plagiarizing their ideas.


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## Benjamin Clayborne (Jul 28, 2012)

Ravana said:


> [* 17 U.S.C. Â§ 107… which of course I'm reproducing under the Fair Use doctrine. Comment and teaching exemptions, obviously. Well, and assuming the U.S.C. is actually itself copyrighted… which I'm not clear on.]



Nothing the federal government produces can be copyrighted. The fed can _hold_ copyrights assigned to it by someone else. But generally, anything produced by a federal employee (in the course of their job, that is; not private work) is automatically public domain.

As I understand it, anyway...


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## Mindfire (Jul 28, 2012)

Steerpike said:


> Whether you like fanfic or not, we have people who write it on the forums. There is probably a more reasonable way to characterize them.



Hyperbole for the sake of humor. I'll pitch in with Ireth in saying that my creations are dear to me and I take them quite seriously. The idea of some two-bit hack cobbling them together into a trite drama or unnatural (to the characters) romantic relationship merely to gratify their own deluded fantasies sickens me. The fact that I could be accused of plagiarism if what they write bears resemblance to a plot I had planned adds insult to injury. I can fully understand the desire to stomp out fanfiction. Especially when the grand majority of it is, quite frankly, BAD.


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## ThinkerX (Jul 28, 2012)

Hmmm....

Only ever wrote one piece that might be seen as fanfic - and even then, I'm not sure.  Set in the underdark of TSR's 'Forgotten Realms', involving a Drow city - though it was one which so far as I know only warrented a passing mention in the novels and rule books, no official details beyond the name.  Drow culture, meaning Drow gods (though they never appeared.  No named TSR characters appeared.  A couple of established Forgotten Realms cities were mentioned in passing.  Other TSR races did appear, and played something of a significant role.  So...is it fanfic - or just a story set in the Forgotten Realms.  I abandoned it two thirds of the way through when it finally dawned on me TSR would be the only possible market.

That said, some of my earlier stories relied so heavily on D&D concepts you could almost hear the dice rolling in some of the scenes - but that was true of a lot of peoples (published!) stuff back then, not just TSR.  Took me a long, long time to get that (mostly) out of my system, and I still suffer relapses now and again.


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## Griffin (Jul 29, 2012)

As a former fanfiction writer, I can see both sides of the argument. The question is: What is considered fanfiction and what's not? I ask this because in many english classes in the past, teachers have given assignments that asked to rewrite an ending or a scene or even expand on book we have just read. Is this kind of written material considered fanfiction because it is non-canon? Or not because it does not involve the 'gratification of deluded fantasies?" 

To be honest, I see nothing wrong with fanfiction in the slightest, even if characters are slashed or turned into vampires. They're just for fun. In some cases, a form of therapy. At least, that is what it was for me back in my middle school days where I was labeled a "goth" and was bullied by peers for five long years. To simply immerse into a fantasy world where you already familiar with. A place you feel safe.

Sorry for all the nonsense. Yes, most fanfiction is written horribly, plots are overused, and why are those two guys kissing? But it is an outlet for certain fans to show their love for a fandom. A lot of these fans have serious dedication. Why would you snuff them out?


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## Mindfire (Jul 29, 2012)

Griffin said:


> A lot of these fans have serious dedication. Why would you snuff them out?



Well there's the rub, isn't it? On the one hand, someone likes me who detests bad fanfiction would love to stomp the stuff out. On the other hand, that's either impossible or quite expensive to do so and you might alienate your most loyal fans in the process. It's a prickly situation. I think I might handle it by encouraging my fans to work on their own _original_ fiction instead rather than butchering- er- appropriating my work. That way they get to grow as writers and I don't have to find stories on the internet about how my main character cheated on his wife with the king of another country between books. -_-


But I think the absolute worst thing about fanfiction is that it can lead to readers thinking they know your characters better than you do. Even to the point of making demands that you canonize their OTP, even if it makes zero sense, and then ranting and raving about how they loathe you (even though they enjoy your work?) because you're so blind to who your characters "really are" and insist on doing your own thing just to troll them. I've seen this happen amongst Avatar: The Last Airbender fans. It is BAD.


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## Ravana (Jul 29, 2012)

Steerpike said:


> It says for purposes "such as." It isn't an exhaustive list. Courts have applied the Fair Use analysis to fanfic cases, which wouldn't be necessary if fanfic didn't have the potential to fall under Fair Use. It is worth noting that fanfic could certainly be a vehicle for criticism or commentary as well.



Yeah, I did notice that little detail. I'd just hoped, somewhat foolishly, that no judges had. ("Foolishly," because it didn't matter the slightest if no judges ever did, since even borderline-competent defense lawyers inevitably would have brought it to their attention; genuinely competent ones would have had it in the first paragraph of their Motion to Dismiss with Prejudice, no doubt.) Doesn't mean the courts were correct in applying it that way. Of course, once one of them establishes the precedent, escaping it starts to get awfully dicey. And, of course, once parody is allowed, it can become a question of artistic interpretation whether something "counts" as parody (commentary, etc.) or not. 

Which is the problem: it probably would've been better if the courts _had_ interpreted the list as exhaustive—even if they sometimes also chose to shoehorn a particular work into one of those categories to cover it. (Naah, they'd never do that). And the reason they should have done so is because it's a lot easier to draw a line around the categories expressly named in the law than it is to draw a legally meaningful line between, say, fanfic and fiction that _isn't_ fanfic. I'm not even sure how you'd go about trying to draw such a line. (Apart from the trivially obvious one where fanfic overtly makes use of copyrighted characters, settings, or what have you, as opposed to actually changing the names to protect the guilty.)

Conversely, if a given work performs one of those other purposes, it is covered that way _regardless_ of form, which does away with any objection that fanfic (or anything) might be a vehicle for such purposes. And courts have seen fit to make such judgments of purpose, both in favor and against, in various cases. (Or, in other words, they may not be able to define art, but they know it when they see it.  )

At the very least, courts might have recognized that fiction does not bear any direct relation to the categories enumerated; that is to say, it is not a purpose "such as" (i.e. "like," "similar to") the ones mentioned. (For that matter, the way the term is used in the law, fiction is not a "purpose," period.) Even if the list is not taken to be exhaustive, it might have been taken as exemplary… because if it's neither, it has pretty well been taken as superfluous.

But I guess they haven't. So now I can finally feel safe writing that epic I've always wanted to—the one where four midgets, a pipe-smoking witch in robes long overdue for a wash, the tin-plated secret heir to a distant kingdom, said kingdom's straw boss and the heir's chief rival for power, a vaguely leonine garden gnome with a propensity for singing lengthy songs in a Scottish accent, and a spunky undead slayer[SUP]1[/SUP] (and her little dog[SUP]2[/SUP] too) traipse off across the continent, swinging through rivers and swimming under trees[SUP]3[/SUP], battling their way past winged goblins, wrongwraiths, loquacious kudzu infestations, Flanders[SUP]4[/SUP], and the largest cockroach anyone has ever seen[SUP]5[/SUP], on a quest to wrest the mind-stealing Extremely Dark Grey[SUP]6[/SUP] Blade, Sturmundang[SUP]7[/SUP], from the evil[SUP]8[/SUP] clutches of Laird Fool, and bear it to the the Crack of Dawn[SUP]9[/SUP], where it can be reforged into a sequel and/or repackaged as a promotional toy for inclusion in Cheery Meals[SUP]10[/SUP].

What the hell… it worked for Brooks and Eddings.[SUP]11, 12[/SUP]

Don't none o' ya dare steal my idea, neither. I'll sue ya, I will.

•••

[SUP]1[/SUP] That is, she's spunky, not the undead.
[SUP]2[/SUP] Benjollum.
[SUP]3[/SUP] Or something like that.
[SUP]4[/SUP] Waiting to see who gets this one.
[SUP]5[/SUP] Outside of Florida, at any rate.
[SUP]6[/SUP] It just _looks_ black.[SUP]13[/SUP]
[SUP]7[/SUP] German for "You gotta be ÃŸitting me."[SUP]14[/SUP]
[SUP]8[/SUP] Actually, he's just misguided.[SUP]15[/SUP]
[SUP]9[/SUP] Professional drivel. Closed course. Do not attempt.
[SUP]10[/SUP] Contains small parts and sharp, mind-stealing objects. Keep out of children.
[SUP]11[/SUP] So why am I even worrying about it?
[SUP]12[/SUP] Oh, right: the _Harvard Lampoon_ might still take offense.
[SUP]13[/SUP] From a distance.[SUP]16[/SUP]
[SUP]14[/SUP] Never use machine translators.
[SUP]15[/SUP] Neighbors describe him as "a quiet boy who always kept to himself."
[SUP]16[/SUP] Any distance.

•••

P.S. @Steerpike: do you know offhand the bases upon which those rulings were rendered? I'd like to think the rulings had more to do with other legal factors—presumably within the Fair Use law, wherever it was taken to be a factor—than whether or not anything intrinsic to fanfic _itself_ constituted Fair Use. I'd _like_ to think it… though I've long since become accustomed to disappointment.


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## Steerpike (Jul 29, 2012)

Ravana:

Those are good points, and there are a lot of people on both sides of Fair Use who would like a more well-defined and predictable test. There are a few reasons why the Fair Use statute is interpreted the way it is:

1. There is a Canon of statutory interpretation that says a court should assume the legislature chose its words with care (anyone who has been around a legislature knows this isn't always true), and that no words in a statute should be rendered superfluous. So if the words "such as" are there, for example, a court should give them meaning. Of course, there are Canons of interpretation for just about any result you like;

2. Fair Use is a doctrine that was actually created by the courts, and the legislature finally got around to codifying it. When they did, they said they didn't intend to narrow or expand the judicial doctrine, and so courts have a lot of judicial precedent to look at in addition to the wording of the statute; and

3. If you look at the legislative history surrounding the Fair Use statute, you'll see statements by legislators that the listing was not intended to be exhaustive. They specifically rejected a bright-line boundary for Fair Use.

When you get into things like parody and satire, you've got First Amendment issues as well, and, hypothetically, if you had an exhaustive statutory list that didn't include them these types of works could still be protected.

The above all assumes the fanfic is infringing some copyright to begin with. Not all characters are subject to copyright protection, and the extent to which they are protected can vary a great deal. Names aren't protected. The issue of whether a setting is protected is also fraught with uncertainty. In other words, authors tend to think there is a lot more copyright protection for these sorts of things than there is.

With respect to your analysis of the kinds of the things that are on the list, that is actually what the courts do. In fact, I think there was a Supreme Court opinion where, in dicta, the court noted that all of the things on the list shared some characteristic and provided some public good, and that things not on the list should fall into that same general category. What they basically said is that Fair Use permitted works that served "socially laudable purposes." That's open to wide-ranging interpretation, but it can be applied to fanfic.

As to the question in your footnote, cases I'm aware of that fall along these lines purport to look at all of the factors equally. They don't spend much time talking about the statutory list. They seem to assume that fanfic should be treated like any other work (in other words, as potentially Fair Use), and then go straight into the Fair Use factors - transformative or not (purpose and characters; which can be a big one); nature of copyrighted work; amount of the work used; effect on market for original work.

There isn't a lot of guidance out there, but it looks like courts generally assume fanfic and related works are perfectly capable of falling under the Fair Use statute, and so they just launch into the factors. If the work is transformative, that seems to be important and that's where you arguably start getting closer to First Amendment protections as well, because a transformative work may very well serve the purpose of providing social commentary on the original work itself.

What is really going to be interesting is if the courts ever clarify the extent to which characters, settings, and so on are even subject to copyright law. Like I said, above, that is largely an open question. I think there is little doubt that if you create a quick-witted thief named Hands, and I read your book and say "Oh, that's cool, I'm going to use a quick-witted thief named Hands," there is little or nothing in the way of copyright stopping me from doing so. On the other hand, if you flat-out copy a character like Harry Potter, who has been well-developed over a series of books and movies, you've got a copyright problem (and let's not even get into the trademark issue). Where the line is on these things is not settled at all. 

Then, to derail, you've got characters who exist in some form in the public domain. Conan, for example. There are Conan stories in the public domain in the U.S. Presumably, I can write Conan stories all day long as if I'm careful to avoid trademark problems I'm OK so long as the Conan I use is in the public domain. But, if I start using characteristics or backstory surrounding Conan which didn't appear until the later REH stories (which are not in the public domain), do I have a copyright problem? No one knows.


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## Benjamin Clayborne (Jul 29, 2012)

Griffin said:


> As a former fanfiction writer, I can see both sides of the argument. The question is: What is considered fanfiction and what's not? I ask this because in many english classes in the past, teachers have given assignments that asked to rewrite an ending or a scene or even expand on book we have just read. Is this kind of written material considered fanfiction because it is non-canon? Or not because it does not involve the 'gratification of deluded fantasies?"
> 
> To be honest, I see nothing wrong with fanfiction in the slightest, even if characters are slashed or turned into vampires. They're just for fun. In some cases, a form of therapy. At least, that is what it was for me back in my middle school days where I was labeled a "goth" and was bullied by peers for five long years. To simply immerse into a fantasy world where you already familiar with. A place you feel safe.
> 
> Sorry for all the nonsense. Yes, most fanfiction is written horribly, plots are overused, and why are those two guys kissing? But it is an outlet for certain fans to show their love for a fandom. A lot of these fans have serious dedication. Why would you snuff them out?



I don't mind people _writing_ fanfic based on my material, or even sharing it in a closed community; I _would_ mind it being published to the, er, public, for the reasons I already stated. (Parody is fine, of course.) It has nothing to do with the general quality of fanfic.


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## Ravana (Jul 30, 2012)

Steerpike said:


> Those are good points



Thank you. One does one's best. 

The main thing I was getting at (you probably realize this, but to state it for everyone else) is that fanfic shouldn't–and from what you're saying, probably doesn't–enjoy any particular protection under Fair Use in and of itself: it's only protected to the extent _any_ work would be protected. Am I correct in thinking this?



> 1. There is a Canon of statutory interpretation that says a court should assume the legislature chose its words with care (anyone who has been around a legislature knows this isn't always true), and that no words in a statute should be rendered superfluous. So if the words "such as" are there, for example, a court should give them meaning.



Such as taking the words "such as" to introduce a list of examples with relevant connections to each other. Which they mightn't be willing to buy into–but I think I'd still get them on the word "purpose," unless they wanted to hold _that_ one superfluous. (Which is probably why linguists seldom get called to offer expert testimony on legislative language, no doubt.…)



> The above all assumes the fanfic is infringing some copyright to begin with.



And of course if it isn't, then Fair Use can't apply to it. Though if it isn't, it hardly matters. 



> Not all characters are subject to copyright protection, and the extent to which they are protected can vary a great deal. Names aren't protected.



Just remember to call the boy Hermione and the girl Harry. Mix that up and you'll be in for a world of hurt.  (To be on the safe side, change the names to Herman and Harriet. That'll fix 'em, fer sure. Yep.)

Plus, as you mention later, there's trademarks, which is less likely, though hardly impossible, for us marginalized fiction authors to run afoul of. If I ever did a SF story set in a dystopia run by the McDonald's-Disney corporation, _I'll_ be in for a world of hurt. But I'll get out of it by telling the court you said it was okay. (Kidding, of course… the dystopia will actually be run by Coca-Cola.)



> They seem to assume that fanfic should be treated like any other work (in other words, as potentially Fair Use), and then go straight into the Fair Use factors - transformative or not (purpose and characters; which can be a big one); nature of copyrighted work; amount of the work used; effect on market for original work.



Right. (Though it seems kind of silly for them to put greater reliance on the apparently non-exhaustive "factors to be considered shall include" clause than on the "purposes such as" one–particularly when one considers the first item on the list of factors subsumes the list of purposes. And one would like to think that eventually the law becomes exhaustive at _some_ point, rather than being infinitely expandable. Slippery slopes can be such a pain, can't they?)



> There isn't a lot of guidance out there, but it looks like courts generally assume fanfic and related works are perfectly capable of falling under the Fair Use statute, and so they just launch into the factors. If the work is transformative, that seems to be important and that's where you arguably start getting closer to First Amendment protections as well, because a transformative work may very well serve the purpose of providing social commentary on the original work itself.



This was pretty much my understanding as well, from the few examples I've seen… in particular, it appears that judgments have often hinged on the last five words of your sentence: "on the original work itself," as they seem somewhat less sympathetic when copyrighted material is used (exclusively) to provide social commentary on something _other_ than the original work. 



> Then, to derail, you've got characters who exist in some form in the public domain. Conan, for example. There are Conan stories in the public domain in the U.S. Presumably, I can write Conan stories all day long as if I'm careful to avoid trademark problems I'm OK so long as the Conan I use is in the public domain. But, if I start using characteristics or backstory surrounding Conan which didn't appear until the later REH stories (which are not in the public domain), do I have a copyright problem? No one knows.



Hmm. I'm not sure they aren't–if you're referring to the ones Howard actually wrote himself: all but one of his stories was published in 1935 or earlier… and the only one published in 1936 is definitely in public domain. (Barring anything that was not published until well after his death, at least; there are only two of these, and as far as I can tell, it isn't clear who, if anyone, holds the copyright on them.) More likely is that you might run afoul of Carter's and/or de Camp's "completions" (most of which are made up out of whole cloth); both those authors are also dead, but only comparatively recently. I presume they could copyright works based on someone else's copyrighted characters and setting–their own works would still be original [sic]–though there seems something vaguely disturbing about the notion. Since Lin Carter was such an unapologetic plagiarist, I rather hope they _aren't _covered, but I strongly suspect the courts would be unlikely to oblige me in this. (Nor would I expect much traction from an _ipse quoque_ contention.…  )

So there are a couple questions you can have a go at, whenever you get bored:

- Can someone hold copyright on a work that makes use of another author's copyrighted characters/setting? 
- Can someone hold copyright on a work that makes use of another author's public-domain characters/setting? 

I'm guessing both answers are "yes"–if the answer to the second is "no," I imagine it would come as a surprise to a whole bunch of authors with works based on Homer or Malory, and I can't see how the first would be "yes" but not the second.


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## Steerpike (Jul 30, 2012)

Ravana:

Got to get to work, but a quick point on Conan and then an answer to your questions.

I don't know that any original Conan stories are still protected. Some of them may be. Anything published prior to 1923 is undoubtedly in the public domain. After that, the analysis becomes more complex, with publications dates, notice, renewals, and the like figuring into it. They may all be in the public domain, but I don't know that and as I recall the "copyright holders" (assuming there are still copyrights) consider at least some of them to be currently-protected.

Q1: If you create a work, you automatically have the copyright on it (at least in the U.S.). That would include works that have other author's characters in them. However, if the other author has copyright or trademark protection that would render your work infringing, then publishing it will still be a problem.

Q2: Yes. Again, as soon as you write it you have the copyright in it. If anyone reproduces your work, they infringe your copyright. Of course, anyone else can write their own work with those same public domain characters.

One quick note on trademarks as well - to infringe a trademark you have to use it as a trademark in a manner that is likely to cause confusion (setting aside, for a moment, famous marks). The fact that a trademark appear within your story does not automatically mean you are infringing. In most cases, if that's all your are doing there is probably no infringement.


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## J.P. Reedman (Aug 1, 2012)

I believe Mercedes Lackey says you can write fanfic in her world but not with her characters--you have to make up your own. I guess that's pretty fair.
I used to write Tv related fanfic for the 80's show ROBIN OF SHERWOOD, and the creator of that series was very liberal about fanfic. The only thing he asked was that you didn't make the main characters gay as that was not how he had conceived them.


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## Steerpike (Aug 1, 2012)

J.P. Reedman said:


> I believe Mercedes Lackey says you can write fanfic in her world but not with her characters--you have to make up your own. I guess that's pretty fair.
> I used to write Tv related fanfic for the 80's show ROBIN OF SHERWOOD, and the creator of that series was very liberal about fanfic. The only thing he asked was that you didn't make the main characters gay as that was not how he had conceived them.



I see those kinds of requests from authors as well. Of course, they rely on the fundamental assumption that the author has the right to make those requests in the first place. In the situation where a character is covered by copyright, it seems to me the author does have that ability. On the other hand, as discussed above there are situations where a character, setting, &c., may be subject to Fair Use or not be covered by copyright at all, in which case there is no legal authority for the author to make those restrictions. In those cases, the fanfic is operating outside of the control of the original author to begin with.


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## Mindfire (Aug 1, 2012)

Steerpike said:


> I see those kinds of requests from authors as well. Of course, they rely on the fundamental assumption that the author has the right to make those requests in the first place. In the situation where a character is covered by copyright, it seems to me the author does have that ability. On the other hand, as discussed above there are situations where a character, setting, &c., may be subject to Fair Use or not be covered by copyright at all, in which case there is no legal authority for the author to make those restrictions. In those cases, the fanfic is operating outside of the control of the original author to begin with.



Should fanfiction really be considered part of Fair Use? I know this is a moot question, but it seems to me as both ridiculous and unfair that slash fiction should be considered in the same category as satire and intelligent criticism.


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## Steerpike (Aug 1, 2012)

Mindfire said:


> Should fanfiction really be considered part of Fair Use? I know this is a moot question, but it seems to me as both ridiculous and unfair that slash fiction should be considered in the same category as satire and intelligent criticism.



Sure it should, if it serves those functions. For example, if the original work has a very conservative sexual theme, or approaches relationships from a socially conservative angle, 'slash' fiction could very well serve as satire or commentary on the original work.


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## Mindfire (Aug 1, 2012)

Steerpike said:


> Sure it should, if it serves those functions. For example, if the original work has a very conservative sexual theme, or approaches relationships from a socially conservative angle, 'slash' fiction could very well serve as satire or commentary on the original work.



Somehow I find it hard to believe that's the intent of those who write it.


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## Steerpike (Aug 1, 2012)

Mindfire said:


> Somehow I find it hard to believe that's the intent of those who write it.



It may or may not be in any given case, you I don't think you can make a blanket prohibition against Fair Use being available if the criteria are met. And then there is always the question of whether the work might serve that purpose, even if it wasn't the intent of the author.


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## Devor (Aug 1, 2012)

The big issue, if I remember right from Business Law, is whether the fan fiction in question is somehow competing with the market potential of the original work.

Harry Potter's already come up, so I'll use that example.  Parts of Harry Potter are trademarked, and I don't know how that would affect it.

But people write thousands of short stories set in the Harry Potter-verse.  Is it reasonable to assume that these short stories are interfering with Rowling's ability to publish Harry Potter short stories in the future?  Note:  It doesn't matter if it's J.K.'s intention to ever do so, so long as there's the potential.

Probably it doesn't interfere with that potential.  But there might be a case if they're very high quality and popular, are sold for money, or are produced by somebody with a claim to legitimacy - like maybe one of the screenwriters from the movies.

At least, that's my understanding, based on a case study (The _Barbie Doll_ song) in college.


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## Mindfire (Aug 1, 2012)

A compromise then: allow fanfiction so long as it doesn't expressly violate the wishes of the original author. I.e., it's perfectly fine to do it, especially if you have explicit approval, but if the author says stop you have to stop or they can sue you.

I'd be quite comfortable with an arrangement like that. Fan-ficcers can carry on as the wish for the most part, and authors have a recourse if they don't want to see their precious creations butchered.


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## Steerpike (Aug 1, 2012)

@Mindfire - that's a potential over-extension of the author's rights. If copyright law doesn't allow the author to prohibit it, then why should you need their express permission or have to stop if they say stop?

@Devor - that is one of the Fair Use factors. It can be an important one, and different courts may give it different weight, and it may be more important in some fact scenarios than others. No single factor is dispositive, but you're right that effect on the market for the original is a big one.


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## Mindfire (Aug 1, 2012)

Steerpike said:


> @Mindfire - that's a potential over-extension of the author's rights. If copyright law doesn't allow the author to prohibit it, then why should you need their express permission or have to stop if they say stop?



That's just it. I think authors _should_ be able to prohibit it. Think of it this way: fanfiction would be legal by "default" and only become otherwise when the author says enough is enough.

EDIT: However, I think an exception to this rule could be made for characters that have been established to exist in "multiverses" and that have been penned by multiple authors. For example, there are potentially infinite Marvel universes, so someone's fanfiction about Spider-Man could be countenanced because it doesn't necessarily _have _to butcher the original. Fanfictions using characters that are not open to multiversal interpretations should remain under the rule however.


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## Steerpike (Aug 1, 2012)

Mindfire said:


> That's just it. I think authors _should_ be able to prohibit it. Think of it this way: fanfiction would be legal by "default" and only become otherwise when the author says enough is enough.



I don't agree. I like Fair Use, personally, and copyright term has already been extended way past anything envisioned when the law was first put in place. I don't think we need to hand more control over to the authors.


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## Benjamin Clayborne (Aug 1, 2012)

Steerpike said:


> I don't agree. I like Fair Use, personally, and copyright term has already been extended way past anything envisioned when the law was first put in place. I don't think we need to hand more control over to the authors.



I'll definitely agree with the term of copyright being far too long, but that has nothing to do with Fair Use.

I still don't see how your average piece of fan fiction even comes close to meeting any of the Fair Use criteria. Approaching the material from a different angle (e.g. the slash-fic example you gave earlier) does not qualify as "commentary" or "satire." _Satire_ is satire. The bounds and requirements of Fair Use have been pretty well established by case law, and fanfic does not really qualify.


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## Steerpike (Aug 1, 2012)

Benjamin Clayborne said:


> The bounds and requirements of Fair Use have been pretty well established by case law, and fanfic does not really qualify.



This is an overly broad statement, and I disagree with it on two counts: 1) a criticism of Fair Use is that it actually hasn't been well-defined. The statutory categories are non-exhaustive, and the factors and how to weight them leave a lot of room in any given case; and 2) saying fanfic can't be Fair Use seems to me to be false as a matter of law, given how courts have approached the issue.

Also, saying that approaching material from a different angle can't be commentary seems to me to be a conclusory statement that you haven't supported (and furthermore, one that I think it false on the face of it).

If you know of any case or other legal authority (at least in the U.S.) that precludes fanfic from constituting Fair Use, I'd be interesting in seeing the citation so I can read it. I'm not aware of any Circuit in the U.S. that would view it that way (in terms of an outright prohibition) but I'm open to the idea that a decision has gone that way somewhere.


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## Steerpike (Aug 1, 2012)

Here's a nice analysis by Charity Fowler:

Rewriting TV: Fanfiction as Fair Use


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## Devor (Aug 2, 2012)

Steerpike's Article said:
			
		

> The Customary Use Theory posits that a use should be found to be fair if it is “within…accepted norms and customary practice.”



It's pretty hard to beat an industry norm, and it's pretty hard to argue that fan fiction isn't a norm.  Unless it affects your ability to continue with your work, I don't think there's any beating it.

I can't argue in favor of every piece of fanfic ever written, but taken as a whole, I think fan fic has social value regardless of whether it is commentary or not.


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## Mindfire (Aug 2, 2012)

Devor said:


> It's pretty hard to beat an industry norm, and it's pretty hard to argue that fan fiction isn't a norm.  Unless it affects your ability to continue with your work, I don't think there's any beating it.
> 
> I can't argue in favor of every piece of fanfic ever written, but taken as a whole, I think fan fic has social value regardless of whether it is commentary or not.



Social value? Come now, let's not get carried away. You're telling me that not only can I legally rip off someone else's characters and worldbuilding and crap all over them however I choose, but that this practice is somehow also noble and "socially valuable"? Really? _REALLY?_


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## Steerpike (Aug 2, 2012)

Devor said:


> It's pretty hard to beat an industry norm, and it's pretty hard to argue that fan fiction isn't a norm.  Unless it affects your ability to continue with your work, I don't think there's any beating it.
> 
> I can't argue in favor of every piece of fanfic ever written, but taken as a whole, I think fan fic has social value regardless of whether it is commentary or not.



Yes, and Fowler talks about some of that in the article. The "norm" argument is basically a policy position. I don't know that a Court will place much weight on it, but I think it is pretty clear that fanfic can come out on the right side of the Fair Use factors in some situations.

And, again, a point that gets lost in all of this is that many characters, ideas for settings, and the like, are not protected by copyright in the first place, so there is no Fair Use issue. Anyone is free to utilize them without having to do a Fair Use analysis, if copyright doesn't apply. If another area of law, such as Trademark law, comes into play, then you have to look at that as well.


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## Devor (Aug 2, 2012)

Mindfire said:


> Social value? Come now, let's not get carried away. You're telling me that not only can I legally rip off someone else's characters and worldbuilding and crap all over them however I choose, but that this practice is somehow also noble and "socially valuable"? Really? _REALLY?_



Well . . . yes, I do.  If you go and buy a flahlight, take out the bulb and dismantle the circuitry for your home-made light-on-a-stick gadget, that has value, right?  Written works aren't any different.  I can dissect them for whatever personal value I want.  Unless you're profiting on their lightbulb and circuitry, or somehow keeping the flashlight makers from doing so, you are creating value for yourself without stealing or causing harm.


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## Christopher Wright (Aug 2, 2012)

If Shakespeare and Marlowe did it then I'm good with it.

(P.S. Shakespeare and Marlowe did it.)


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## Mindfire (Aug 2, 2012)

Devor said:


> Well . . . yes, I do.  If you go and buy a flahlight, take out the bulb and dismantle the circuitry for your home-made light-on-a-stick gadget, that has value, right?  Written works aren't any different.  I can dissect them for whatever personal value I want.  Unless you're profiting on their lightbulb and circuitry, or somehow keeping the flashlight makers from doing so, you are creating value for yourself without stealing or causing harm.



Yeah but your flashlight example could be argued to be a form of innovation. Fan-fiction is more like vandalism.


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## Steerpike (Aug 2, 2012)

Mindfire said:


> Yeah but your flashlight example could be argued to be a form of innovation. Fan-fiction is more like vandalism.



Again, overly broad. Writers and their writings are not a single, uniform whole. That includes fanfic writers.


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## Christopher Wright (Aug 2, 2012)

Fan fiction is more like jazz. You riff off a song that already exists.

OMG JAZZ MUSICIANS ARE VANDALS


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## Lawfire (Aug 2, 2012)

Devor said:


> Well . . . yes, I do.  If you go and buy a flahlight, take out the bulb and dismantle the circuitry for your home-made light-on-a-stick gadget, that has value, right?  Written works aren't any different.  I can dissect them for whatever personal value I want.  Unless you're profiting on their lightbulb and circuitry, or somehow keeping the flashlight makers from doing so, you are creating value for yourself without stealing or causing harm.



I do not understand how creating your own flashlight (or fan-fiction) has any SOCIAL value. Personal value perhaps.

Also, if you purchased the flashlight, you could use it as you see fit. It is a tangible good. Are ideas and thoughts (characters and worlds) not intangible, and therefore different?


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## Steerpike (Aug 2, 2012)

I don't know - there are a number of large fanfic communities where people write, read, and share, etc. How many people have to enjoy something before it has social value? There are also best-selling novels that are essentially fanfics, and at least one doing well right now that began as a fanfic.


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## Mindfire (Aug 2, 2012)

Steerpike said:


> I don't know - there are a number of large fanfic communities where people write, read, and share, etc. How many people have to enjoy something before it has social value? There are also best-selling novels that are essentially fanfics, and at least one doing well right now that began as a fanfic.



Now you're just playing semantics. It doesn't matter if those works are "essentially" fanfics or "began as" fanfic. They either are fanfics or they aren't. And it sounds more like the latter to me. Once something stops becoming a ripoff of something else and truly comes into its own, you can't use it to justify fanfic anymore really. That's trying to have it both ways.


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## Steerpike (Aug 2, 2012)

Mindfire said:


> Now you're just playing semantics. It doesn't matter if those works are "essentially" fanfics or "began as" fanfic. They either are fanfics or they aren't. And it sounds more like the latter to me. Once something stops becoming a ripoff of something else and truly comes into its own, you can't use it to justify fanfic anymore really. That's trying to have it both ways.



Talk about semantics...

Where is the line between when it is fanfic and when it comes into its own. Where you say it is? Or when it gets a publishing contract? That doesn't make sense. If it uses the original characters and setting, I think it is safe to call it fanfic, don't you?


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## Lawfire (Aug 3, 2012)

Steerpike said:


> I don't know - there are a number of large fanfic communities where people write, read, and share, etc. How many people have to enjoy something before it has social value? There are also best-selling novels that are essentially fanfics, and at least one doing well right now that began as a fanfic.



I get that part, but the flashlight comparison is different. Also, the intellectual property aspect is much different than a flashlight. I should have been more clear. I simply was not understanding the connection (flashlight) that Devor was trying to make.


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## Mindfire (Aug 3, 2012)

Steerpike said:


> Talk about semantics...
> 
> Where is the line between when it is fanfic and when it comes into its own. Where you say it is? Or when it gets a publishing contract? That doesn't make sense. If it uses the original characters and setting, I think it is safe to call it fanfic, don't you?



But suppose the names and setting are changed? Suppose the characters are ones nobody can really have a claim to anyway like Cinderella or Robin Hood? In these kinds of situations it's not fanfiction anymore. It's either become original work or it always _was_ original work. Shared universes, use of public domain characters, or even changing a fanfic into an original work not dependent on the original do not count as fanfiction. Using such things as examples is a bit like saying dropping out of school should be _encouraged_ because a few people who've done it turned into huge successes.


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## Steerpike (Aug 3, 2012)

Mindfire said:


> But suppose the names and setting are changed? Suppose the characters are ones nobody can really have a claim to anyway like Cinderella or Robin Hood? In these kinds of situations it's not fanfiction anymore. It's either become original work or it always _was_ original work. Shared universes, use of public domain characters, or even changing a fanfic into an original work not dependent on the original do not count as fanfiction. Using such things as examples is a bit like saying dropping out of school should be _encouraged_ because a few people who've done it turned into huge successes.



You have a strange definition of fanfic, in my opinion. Whether a character or world is in the public domain doesn't enter into it. Your last statement is just silly, particularly as I have neither encouraged or discouraged fanfic; the discussion was merely about the definition of it and the extent to which an author can protect it.

I think the conversation is going in circles, and I'm not convinced you are getting what I am saying. I'll leave off by just pointing out that works of literature fall along a continuum, and not into neat little packages. A work like _Pride and Prejudice and Zombies_ is dependent upon the original work, and even employs the originals characters, and an alternate version of the setting and story line. Had it not been published by a traditional publisher, it is the sort of thing that would be right at home on your average fanfic site. I suppose we can conveniently label it as a parody if we choose. As for social value and the potential for social commentary, which work do you think would have more to say about our current society - one in which zombies have been introduced into the work, or one in which characters have been made gay? There is the potential for it in each of them, but I'd say the latter stands to be a lot more relevant. 

Anyway, an interesting discussion nonetheless.


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## JBryden88 (Aug 9, 2012)

Fanfic is how I discovered that writing was something I wanted to do beyond just messing around. I wrote a Resident Evil fan fic, had people tell me (I was 10 or 11 at the time by the the way ) I should keep writing.

That said, IMO, if an author requests folks don't do fanfics of their work, the fans should be respectful and not do it. If I respect my favorite author, I'm not gonna write a fanfic of his work if he requests not to.


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