load it, check it, quick - rewrite it

[furiosity]

0001 - A reminder! Don't Like Don't Read is only a logical and reasonable defence if the person hasn't actually read it already or had ample warning they wouldn't like it but read it anyway (i.e. "don't complain about Mpreg in a fic if there's a clear label on the header" = reasonable. "if you don't like Mpreg, don't read it!" when NO labels are

Comments

[tray_la_la]

Taking copyright this semester has been very illuminating on this front. Under US law, at least, fanfic/art has a very strong fair use claim, and so is not infringing. (Being of a commercial nature is only one element of the analysis, and in the case in question would be a minor one due to the virtually non-existent market impact). Not to mention that claims against infringment are bolstered by JKR's approval of fan derivative works so long as they aren't smutty. I can understand a general fear over a potential trend in selling fanworks, but as is stands I think it's fine, legally.

[furiosity]

Can you explain to me (using small words if possible) how "for profit" falls under the "fair use" umbrella. I have read a lot about fanfic/art being transformative (rather than merely derivative) in nature and thus having the right to exist, but I've never heard of the fair use argument being applied successfully in court to sales of unlicensed fanworks.

ETA: JKR's approval of fan derivative works so long as they aren't smutty
She also said as long as we don't get paid for them, so there's that.

[tray_la_la]

sure. here's the fair use analysis

[furiosity]

Thank you for the very clear and accessible explanation! I'm glad the fanartist could possibly win a on grounds of fair use if a suit were to happen (not very likely, but still).

her desire doesn't really matter to the court
No, but it does matter to fandom, at least those of us who actually care that HP is her work, not merely our creative playground. If JKR were to get pissed off and say "fuck you guys, no more fanfic for you", I'd comply, and that would make me really sad (not to mention really fucking annoyed at the person or people who caused it). And I imagine she'd have no problem sending out C&D/DMCA takedown avalanches; web providers generally side with the creator, and most fannish folk don't have the know-how or desire to fight these claims. The OTW is still in its infancy, and the language at Chilling Effects is ridiculously inaccessible to the average person. Under current law, JKR is perfectly entitled to request and be granted takedowns of fanwork. That's what the worry is about, and until a fanartist actually wins the

[tray_la_la]

you're welcome

[furiosity]

Yeah, I know that JKR's potential future disapproval of fanworks will not be reason enough for a lot of folks to stop creating/consuming them, but for me, being a fan comes with a built-in respect for the creator and his/her right to the original work, and parts of that respect are a) paying for the original work in any way I can and b) acknowleding the creator as a fellow human being by behaving towards his/her work in a way that I would if s/he were my acquaintance or neighbour. So if the creator says "no fanfic for you" after years of allowing it, I would not be happy because I LIKE fanfic, but for me respect for the creator outweighs my own wishes to have fun with his/her work. I actually research fandoms now before seeking out new material to read, and if a creator is particularly shrill about his/her dislike for fanfic (e.g. Robin Hobb *bleargh*), I simply avoid that creator's work altogether no matter how much my friends squee about it. OTOH, if a creator is respectful about disallowing fanfic (e.g. GRRM), I will still buy and

[tray_la_la]

I generally do not feel that fannishness and money are a good mix in any situationselling fan works for profit seems to be a big issue in fandom, which inevitably comes up every time some sort of commercial endeavor is pursued by one among us. yet - and this is only just occurring to me now, due to my fandom-centricity, i suppose - there is so much fannish stuff sold for profit outside of fandom, seemingly without consequence or contemplation. for example, i've recently become dangerously obsessed with etsy, on which there are hundreds of shops selling hp related stuff, all for profit. i may be wrong, but i imagine none of these people fuss over cr infringement. granted, we have the benefit of communication en masse, which leads to a sort of community ethics-building and self-policing. but it could be that fandomers, to differing degrees, internalize the respect for original creators you expressed. *shrugs* i don't have an actual point, lol. just that whether or not any of us ever incur liability for our fanworks, it's probably a very

[furiosity]

Crafts are not an exception, I don't think -- Etsy is a fairly new thing in Internet years, and it will get hit just like Zazzle got hit; the legal machines just usually take some time to get all their ducks in a row, pardon the cliche -- that the Etsy sellers don't give a shit doesn't mean they aren't going to get served with C&D (I heard on Regretsy that Twilight merch sellers are starting to get theirs already, though that's admittedly a rumour). The fannish multiverse has been through a lot of legal shit long before JKR ever thought of Harry Potter so maybe it's also like... a collective unconscious thing or something. :D

[tray_la_la]

lol, yes, i also tend to forget fandom existed long before hp/my involvement in it. :P and i really need to keep up with fannish related things: i had no idea about zazzle or anything like that.

i'm all abuzz with dmca questions now! :) i'd be tempted to email my prof if he weren't spending the second half of the semester in israel. or if it wouldn't be terribly self-implicating. although i think he's a secret fan. my final was based on hp fanfic, and he even played a clip of the potter puppet pals in class, lol.