My MA, or, Why Disclaimers are Necessary
I've passed! And with quite a respectable grade, too!
My dissertation was on fan fiction and copyright law, looking at the fan fiction as an international pastime and speculating how differences in the copyright laws of different countries, particularly those of the US and UK, impact on how the legality of fan fiction is perceived in those two legislatures.
No surprises, really - it's a legal grey area in both! But it would take different changes in the laws of each to make it legal. In the US, for example, you have the concept of transformativeness, and can argue that a fan work (fiction, art, whatever) that transforms an original work into something different, with a completely different use, is legal.
In UK law, the concept of transformativeness isn't recognised at all. Fair dealing, which is similar to fair use, only covers private non-commercial research or study, criticism, or incidental inclusion. All other copying, and specific adaptations such as translations, dramatizations or pictorializations are illegal. But most fan works, while obviously derivative, are not, strictly speaking, adaptations of the original as specified in the law, i.e. they are not translations, or dramatizations etc., although fanart is often a pictorialization. However, 'substantial' copying has to take place in order for the work to be considered an adaptation, and this has to be judged on a case-by-case basis.
This is just an example of how tricky things can get when one compares the laws. So what happens in the real world when an author in Japan writes a fan fiction based on an English original and publishes her work on a site hosted in California?
Obviously, it would be too much to ask your average fan fiction writer to become a legal expert in the copyright laws of all three countries. But it's only right that a fanfic author considers the rights of the person who created the original inspiration of her work. Some authors can't stand the thought of any fan fiction at all being written about their creations (we've all heard what Anne Rice thinks of it!). Some don't care, as long as you don't make a financial profit (Hooray for JK Rowling!). Some sit mid-way, and set rules (like Anne McCaffrey). A good author will at least take a look to see what the creator of the original work thinks about fan tributes.
But what if you can't find out, or you choose to publish despite knowing the original creator disapproves?
Disclaim! Make it clear that you are not the creator of the original work, and that you are not profiting. You may still not be entirely in the clear legally, but it's the responsible thing to do. Not only are you making it clear to any lawyer who may read your work that you respect the rights of the original creator, but you are showing less knowledgable fanfiction lovers that there are ethical issues associated with fanfic that cannot be ignored.
N.B. My MA was in librarianship, not law, and there's always the chance I got something wrong. In any case, this isn't legal advice.
My dissertation was on fan fiction and copyright law, looking at the fan fiction as an international pastime and speculating how differences in the copyright laws of different countries, particularly those of the US and UK, impact on how the legality of fan fiction is perceived in those two legislatures.
No surprises, really - it's a legal grey area in both! But it would take different changes in the laws of each to make it legal. In the US, for example, you have the concept of transformativeness, and can argue that a fan work (fiction, art, whatever) that transforms an original work into something different, with a completely different use, is legal.
In UK law, the concept of transformativeness isn't recognised at all. Fair dealing, which is similar to fair use, only covers private non-commercial research or study, criticism, or incidental inclusion. All other copying, and specific adaptations such as translations, dramatizations or pictorializations are illegal. But most fan works, while obviously derivative, are not, strictly speaking, adaptations of the original as specified in the law, i.e. they are not translations, or dramatizations etc., although fanart is often a pictorialization. However, 'substantial' copying has to take place in order for the work to be considered an adaptation, and this has to be judged on a case-by-case basis.
This is just an example of how tricky things can get when one compares the laws. So what happens in the real world when an author in Japan writes a fan fiction based on an English original and publishes her work on a site hosted in California?
Obviously, it would be too much to ask your average fan fiction writer to become a legal expert in the copyright laws of all three countries. But it's only right that a fanfic author considers the rights of the person who created the original inspiration of her work. Some authors can't stand the thought of any fan fiction at all being written about their creations (we've all heard what Anne Rice thinks of it!). Some don't care, as long as you don't make a financial profit (Hooray for JK Rowling!). Some sit mid-way, and set rules (like Anne McCaffrey). A good author will at least take a look to see what the creator of the original work thinks about fan tributes.
But what if you can't find out, or you choose to publish despite knowing the original creator disapproves?
Disclaim! Make it clear that you are not the creator of the original work, and that you are not profiting. You may still not be entirely in the clear legally, but it's the responsible thing to do. Not only are you making it clear to any lawyer who may read your work that you respect the rights of the original creator, but you are showing less knowledgable fanfiction lovers that there are ethical issues associated with fanfic that cannot be ignored.
N.B. My MA was in librarianship, not law, and there's always the chance I got something wrong. In any case, this isn't legal advice.