Proposed treaty may affect those who publish on the Web
I’m annoyed by the title of this post, given that the OP specifically references fanfiction (where writers have no copyright protection to speak of - see below for my comments on that), but the content is solid and relevant to anyone who posts anything that isn’t fanfiction on the Web (including LJ). The Electronic Frontier Foundation (EFF) is working to bring this issue to light, but it needs help spreading the word, so feel free to go to the post above, read through the issues then disseminate the information to your own friends.
Fanfiction is NOT Eligible for Copyright Protection
I’m bothered when I see copyright notices on fanfiction, because realistically, no such protection is available. The U.S. Copyright Office’s Circular 14 is very specific about when copyright protection is or is not available for derivative works. By its very nature, fanfiction is a derivative work, because we’re using someone else’s characters and world to tell a story. Fanfic writers do so without the permission of the original copyright holder, and this is what the U.S. Copyright Office has to say about that:
”In any case where a protected work is used unlawfully, that is, without the permission of the owner of copyright, copyright will not be extended to the illegally used part.”
Assuming she isn’t sued by the copyright holder, the most a fanfic writer might be able to claim is the plot she developed and any original characters she included. For my read of it, however, dialogue used by borrowed characters and action taking place in a recognizable, borrowed ‘verse are not protected. What does that mean in our world? I’ll use three examples from my own work.
One: Three and a half years ago, I wrote Stupid Portal, a BtVS/ST:TNG crossover. The bulk of the action takes place on the Enterprise, and the bulk of the characters belong to either Joss Whedon or the estate of Gene Roddenberry. There are a very few original characters (Meg, DB, the Kamalfitin and a few other minor characters). Note that I didn’t include Sendaru, the “goddess” from whom the Slayer line developed. She was derived from an unnamed CGI character in “Get It Done” from S7:E15 of Buffy, so she isn’t really mine. There’s very little of Stupid Portal that could be converted into an original story. The whole of it is so heavily dependent on either BtVS or ST:TNG, that to remove the borrowed characters and ‘verses is to kill the story completely. Protection available? Essentially nil.
Two: Shortly after I finished Stupid Portal, I started working on The Key’s Watcher/Dark Haven, a series of BtVS/AB crossovers. Once again, I used characters from both ‘verses to develop the stories. The difference between TKW/DH and Stupid Portal, however, is that TKW/DH can be converted to an original fic with quite a bit of work from me. Not only are the plots original to me, but they’re also independent of the ‘verses involved. I can readily create my own ‘verse and characters to tell these stories, because at its heart, each story is about a man doing his level best to keep his daughter safe. Protection available? Limited at best as they currently stand; it’s not an issue I would care to test on these stories.
Three: Almost a year ago, I wrote a story called Freedom of the Mind. It was an AU in which slavery was used as a form of legal punishment; the world is one which I developed independent of an existing ‘verse. There are a few limited references to the CSI ‘verse, but those references can be readily excised, making the world completely my own. After that, all I need to do to make this story fully original is change the names of the characters and develop their backstory away from CSI canon. Those who’ve read FotM know this isn’t a problem, as the only reason the characters are recognizable is that I used canon names and posted the story on CSI boards. Protection available? Considerably more than the other two I’ve mentioned, but again, it’s not an issue I would care to test with this story.
If you want to protect your stories under U.S. Copyright Law, you need to remove anything specific to the original work and replace it with your own characters and settings. Anything less than that leaves you unprotected. The bottom line is that if you write fanfiction, you really need to read U.S. Copyright Law so that you can get a better idea of just how gray the gray area really is. We can claim “fair use” until we’re blue in the face, but until fanfiction is put to the test in a court of law, not rocking the boat with claims of copyright protection may well be the best advice anyone can offer.
Fanfiction is NOT Eligible for Copyright Protection
I’m bothered when I see copyright notices on fanfiction, because realistically, no such protection is available. The U.S. Copyright Office’s Circular 14 is very specific about when copyright protection is or is not available for derivative works. By its very nature, fanfiction is a derivative work, because we’re using someone else’s characters and world to tell a story. Fanfic writers do so without the permission of the original copyright holder, and this is what the U.S. Copyright Office has to say about that:
”In any case where a protected work is used unlawfully, that is, without the permission of the owner of copyright, copyright will not be extended to the illegally used part.”
Assuming she isn’t sued by the copyright holder, the most a fanfic writer might be able to claim is the plot she developed and any original characters she included. For my read of it, however, dialogue used by borrowed characters and action taking place in a recognizable, borrowed ‘verse are not protected. What does that mean in our world? I’ll use three examples from my own work.
One: Three and a half years ago, I wrote Stupid Portal, a BtVS/ST:TNG crossover. The bulk of the action takes place on the Enterprise, and the bulk of the characters belong to either Joss Whedon or the estate of Gene Roddenberry. There are a very few original characters (Meg, DB, the Kamalfitin and a few other minor characters). Note that I didn’t include Sendaru, the “goddess” from whom the Slayer line developed. She was derived from an unnamed CGI character in “Get It Done” from S7:E15 of Buffy, so she isn’t really mine. There’s very little of Stupid Portal that could be converted into an original story. The whole of it is so heavily dependent on either BtVS or ST:TNG, that to remove the borrowed characters and ‘verses is to kill the story completely. Protection available? Essentially nil.
Two: Shortly after I finished Stupid Portal, I started working on The Key’s Watcher/Dark Haven, a series of BtVS/AB crossovers. Once again, I used characters from both ‘verses to develop the stories. The difference between TKW/DH and Stupid Portal, however, is that TKW/DH can be converted to an original fic with quite a bit of work from me. Not only are the plots original to me, but they’re also independent of the ‘verses involved. I can readily create my own ‘verse and characters to tell these stories, because at its heart, each story is about a man doing his level best to keep his daughter safe. Protection available? Limited at best as they currently stand; it’s not an issue I would care to test on these stories.
Three: Almost a year ago, I wrote a story called Freedom of the Mind. It was an AU in which slavery was used as a form of legal punishment; the world is one which I developed independent of an existing ‘verse. There are a few limited references to the CSI ‘verse, but those references can be readily excised, making the world completely my own. After that, all I need to do to make this story fully original is change the names of the characters and develop their backstory away from CSI canon. Those who’ve read FotM know this isn’t a problem, as the only reason the characters are recognizable is that I used canon names and posted the story on CSI boards. Protection available? Considerably more than the other two I’ve mentioned, but again, it’s not an issue I would care to test with this story.
If you want to protect your stories under U.S. Copyright Law, you need to remove anything specific to the original work and replace it with your own characters and settings. Anything less than that leaves you unprotected. The bottom line is that if you write fanfiction, you really need to read U.S. Copyright Law so that you can get a better idea of just how gray the gray area really is. We can claim “fair use” until we’re blue in the face, but until fanfiction is put to the test in a court of law, not rocking the boat with claims of copyright protection may well be the best advice anyone can offer.