load it, check it, quick - rewrite it
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
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1) nature of the potentially infringing work (in this case, fanart): is it commercial or non-commercial (the latter weighing against fair use)? is it transformative, or does it supersede the original work? (basically, is it a similar enough to be a direct competitor; the former weighs in favor of fair use)
2) nature of the original work: is it factual or non-factual (creative works receive the most protection)? is it published or unpublished (unpublished works get greater protection because the right to first publish can't be recovered once lost).
3) amount of the original work taken in relation to the whole. this relates to both quantity taken, and a more imprecise qualitative factor, i.e. was the "heart of the work" taken? the less you take the better, and taking the heart weighs against fair use, except in the case of parody
4) effect on actual and potential markets for the original. here is the big one, which relates to commerciality and access. basically, the courts look at whether the new work could displace the original in the market, or exhaust potential markets, such as derivative markets, which the original author has a right to. it looks at the individual case, as well as the potential effect if the individual's conduct was done on a wide-scale. so in this case the question would be whether the fanartist's book was likely to exhaust the potential market for derivative art books, should jkr choose to publish one (the court's look at the expressed intent of the original author in determining whether s/he'd ever enter into such a derivative market).
in the case of a fanart book, i'd say there is no chance for exhausting the potential derivative market. this is why this kind of thing is different from the lexicon, which jkr had expressed intent on doing, and which could entirely displace/compete with her version in the marketplace. granted, there is potentially another level of complexity when dealing with art, because one could make the case it's also derivative of the art that accompanied the books, but i don't think that's a likely claim. who knows though.
certainly jkr's doesn't want fanworks sold for profit, but her desire doesn't really matter to the court when it comes to fair use, which is really a public policy analysis.
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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 right to sell unlicensed fanwork in a real case (as opposed to in theory), I feel that any fan creator openly profiting off her work is potentially jeopardising the fandom. Hence, do not want.
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i see your point, though if jkr were to decide she hates fanworks, i personally would not stop making them or engaging with them. the profit matter aside (which, admittedly is a much more serious potential issue), it's still legal under fair use to create them. i respect her many rights as the author/cr owner, but there's always a push and pull between the public and cr owners in terms of use and access, and i think fair use serves an important purpose, even at the chagrin of the cr owner. though i agree life would be much better if we avoided provoking her altogether.
tbh, i am fuzzy on the isp safe harbors under the dmca. i know that fair use doesn't apply to the dmca, but i think that would just make it illegal to circumvent any technological protective measures jkr erected to protect access/use of her works, should she choose to do that. in which case isps would have to terminate infringing subscribers and not interfere with any of her tpms. but i'm not sure she could set up tpms blocking fan works, or suddenly make fan works infringing, so long as they remain under fair use.... *scratches head* i've been in the library too long, my brain is starting to spin a bit, lol.
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I know not everyone approaches being fannish in this manner -- it's just for me it's not an issue of legality at all; it's not that I'm scared I'll get sued, I just don't want to be a contributing factor to the creator's stress. I don't engage in fannish activity to promote fair use; I do it for fun, and while I am not unsympathetic to the idea that fair use serves an important purpose, it is pretty much in last place on my list of reasons to create transformative works. Aside from that, I generally do not feel that fannishness and money are a good mix in any situation, with the only exception being fandom auctions where all profits go to charities, not to line fanwork creators' pockets (and even in that situation, I strongly object to people using language like "my fanfic/art sold for $X" because you just never know who may be reading and who may misinterpret it horribly).
I don't think this one artist's book will become the Thing That Ruins Fandom (though I've avoided mentioning her by name in any case and will screen any comment that does) but if more artists decide that hey, they don't need this labour of love crap and can totally make some serious cash selling what they draw, I think it can only lead to trouble for fandom in the long run. I am fuzzy on what safe harbour even means; I just know that I have seen countless successful DMCA claims by creators' legal teams against all sorts of people, including creators of parodies (which is even more fair use than fanfic afaik) and very few counterclaims, almost none successful. If JKR's lawyers come after fandom, fandom is not going to survive it under current conditions. So I'm in the "I vote we never do anything to piss off JKR" camp. >.>
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selling 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 good thing we engage in these kinds of of self-reflexive deliberations.
in terms of isp safe harbors, an isp can't be sued by a cr owner for users' infringements so long as they are not interfering with a owner's technological protection measures, and kick off any repeat infringers. do you know on what grounds creators have sued under the dcma? i've only ever heard of it being in reference to access/use of the original works protected by tpms. the parody one in particular seems alarming.
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I don't think creators themselves have sued under DMCA for fanworks specifically (though I'm sure Anne Rice has tried); I was just referring to the climate under which ISPs seem to operate: most will comply even though they may not have to, because they don't want to piss off the big companies. They get a takedown notice (usually for original works, as you say) and they act. Under these circumstances, if JKR decided to send out the legal basset hounds, ficcers would just find their accounts suspended left and right -- and I do not trust LJ (for example) to investigate, not after what they did during Strikethrough 2007.
I think the parody one was a dude making fun of... some book series. I don't think it was HP or Twilight. *headscratch* I really should put this shit in my bookmarks when I come across it. I will try to Google it after I finish with tonight's Snitch!
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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.
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