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Copyright Intent (Or Not) and Disclaimer

icerose05

Scribe
There is a creepypasta I really liked called "One More For the Orphan", and I have based a story around it that I would like to post or publish, or maybe turn into a video game. I tried to hunt down the author of the creepypasta to get permission, but there is literally no trace of him/her. There is no name on the story, no credit, nothing. And everyone I've talked to has no idea who wrote it either. I don't think I will ever be able to find them.

Would it be okay if I continued to write this story, and disclaim everything about it except for the stuff I own, like new characters, and the plot based around the story (the story is set 30 years after the creepypasta). If I make a video game off of it, it's going to be non-commercial, so I won't be seeing a dime of it. And people write fanfiction and make games with creepypasta as well. I just don't want to get sued, and I don't want to hurt anyone.
 

X Equestris

Maester
Well, disclaimers don't protect fanfiction from being sued by the original author. Most authors simply don't care enough to pursue it legally. As long as you're not trying to profit off of it, I think you'll probably be fine.
 

Penpilot

Staff
Article Team
I think this basically falls under fan-fiction. As long as you're not profiting off of it, I think you should be legally fine.

BUT as for not hurting someone. Well, I don't know if you'll be able to guarantee that.

Like it or not, you're playing in another person's sandbox, and since you can't contact them, you have no idea if they want anyone else playing in there. If this was a professionally published work that you're fan-fictioning, I'd say the author would probably understand and not care too much. They've got other things to worry about.

But since it's not, it's a bit of wildcard. I mean let's say you do this and it becomes wildly popular. You keep doing it, but then the author shows up, and says what the hell are you doing? What if they had plans to continue the story themselves, and now they can't because they now have to compete with your fan-fiction that everyone loves so much and who everyone takes to be canon.

You may not have monetarily profited from it, but you may profit in other ways like attention, and maybe even being mistaken as the real author of that story since it's not signed. You may not intend to, but in a way you may inadvertently steal that story world away from the author.

I'm not saying this will happen, or is even likely to happen. I'm just saying it could happen. And if it does, it means you hurt someone.

Like I said, you're probably safe from legal ramifications.

Personally, if you can't contact the author, I'd say make your own world/story up and homage that story. There's nothing wrong with exploring similar themes, characters, and settings with your own story. I mean if you're a writer, why not do something that belongs to you and avoids stepping on someone else's toes?
 

Devor

Fiery Keeper of the Hat
Moderator
What if they had plans to continue the story themselves, and now they can't because they now have to compete with your fan-fiction that everyone loves so much and who everyone takes to be canon.

In copyright law, one of the biggest factors is how much your work competes with the potential of the original creator's ability to make money off the IP.

If this sentence has any truth to it, it's my understanding that you would almost certainly lose the case.
 

Penpilot

Staff
Article Team
In copyright law, one of the biggest factors is how much your work competes with the potential of the original creator's ability to make money off the IP.

If this sentence has any truth to it, it's my understanding that you would almost certainly lose the case.

I didn't know that. Good to know.
 

icerose05

Scribe
I think what I'll just end up doing is changing the plot enough so it is unrecognizable from the creepypasta, and I can call it my own. Thanks for your help, guys!
 
Hi,

I love this site! I learn something new every day here. I'd never heard of a creepypasta before.

As for the query I googled the short and read it. It's a page long, with no names of authors or characters. Just an orphan in an orphanage in Russia who grows as he presumably eats his visitors. That's nothing more than a plot and they aren't usually copyrighted. You might want to change the setting a little bit, say a home for the special needs kids in the backwaters of Louisianna etc, and there are no names to worry about. So if you write it completely yourself and don't reference anything in the original I can't see an issue. I could write Star Wars for example and be unlikely to be sued if I changed enough of the details and wrote it completely myself. If I'm not in the same world build or using the same characters etc I should be okay. Readers might tear strips off me for copying or writing derivative work, but that's another story.

Cheers, Greg.
 

Steerpike

Felis amatus
Moderator
Copyright disclaimers and things like that are meaningless. You see them a lot on YouTube, but they don't have any legal effect. Whether you're making money off the work doesn't matter either, in terms of outright infringement. Whether you're affecting the market for the original work can come into play if you're making a Fair Use argument, but it is only one of multiple factors under a Fair Use analysis. As Devor notes, if you're undermining the market for the original IP, that's a strike against you.

Ultimately, you have to make a risk v. reward analysis. What are the chances the copyright owner will see your work and object? Is the copyright in the underlying work registered (if so, you can be faced with statutory damages in the U.S.)? If you actually got sued and ended up in court it would likely cost a few hundred thousand dollars to take the case all the way through trial, so even if you think you have good defenses, the cost is a consideration.

The fiction seems like it is relatively low-risk, but you can make that assessment better than the rest of us. A video game strikes me as being higher risk, and again the fact that you aren't making money off it doesn't prevent it being copyright infringement. If you're going to argue Fair Use, remember that is ultimately decided by a judge or jury. Hard to say much without more information, but don't assume it'll be Fair Use. If I were to make a straight video game adaptation of The Avengers and give it away for free, I have little doubt I'd not only get sued for it, but also lose.
 
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