Are Print Zines a Particular Risk to Fandom?
Via fanficrants, the topic of fanfiction and copyright law is back on the metafandom radar.
A rather strongly worded rant claims:
YOU DO NOT MAKE MONEY OFF OF FANFIC.
EVER.
Do you realize the trouble you could bring down on the fanfic 'industry', such as it is, if you did? No, of course you don't, 'cause you're special and copyright laws apparently don't apply to you, or something.
If fanfiction is copyright infringement (that is, if it is a derivative work), it is copyright infringement regardless of whether money is made or not.
If fanfiction is infringement, one can attempt to make the defense of 'fair use', however, whether or not money is made is not determinative of whether a use is fair use. The test judges use to consider the defense of fair use has four elements:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
Whether you make money is only one element of the four considered by a court in determining whether a use is fair use; it doesn't determine whether a use is fair or not. A use that makes no money but destroys the market for derivative works produced by the copyright holder is a lot more damaging (and likely to cause a successful lawsuit) than a use that makes some money but has no effect on the copyright holder's market for selling derivative works. A fair use defense is typically difficult to make (the courts apply test rather stringently), so if fanfiction does infringe on copyright, both zines and netfic are likely to fail the fair use test.
Of course, whether a copyright holder wants to go through a trial (with the expense and attendant negative publicity) is entirely another matter.
Selling fanfiction (ie, zines) is not some unique indicator that the work violates copyright, nor does offering your work for free provide a guaranteed 'out' (see this page for some basic information about common copyright myths, including the myth that if you don't make money, it's not infringement).
Also, "making money" does not necessarily "draw attention" to fanfiction. One might make the very strong argument that netfic is much more risky to the fanfiction world because it is so easily discoverable. All the copyright holder has to do is put the name of one of his/her characters into Google and s/he is bombarded with fanfiction. In most cases, zines are no more prominent than netfic, and there are many fewer zines than netfic websites at this point.
I think the poster might be conflating American copyright law with the common fannish custom that a zine maker would not build a profit margin into her publication, since doing so would be profiting off of the fans (her fellow community members, more friends than customers), something which used to be considered gauche.
A rather strongly worded rant claims:
YOU DO NOT MAKE MONEY OFF OF FANFIC.
EVER.
Do you realize the trouble you could bring down on the fanfic 'industry', such as it is, if you did? No, of course you don't, 'cause you're special and copyright laws apparently don't apply to you, or something.
If fanfiction is copyright infringement (that is, if it is a derivative work), it is copyright infringement regardless of whether money is made or not.
If fanfiction is infringement, one can attempt to make the defense of 'fair use', however, whether or not money is made is not determinative of whether a use is fair use. The test judges use to consider the defense of fair use has four elements:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
Whether you make money is only one element of the four considered by a court in determining whether a use is fair use; it doesn't determine whether a use is fair or not. A use that makes no money but destroys the market for derivative works produced by the copyright holder is a lot more damaging (and likely to cause a successful lawsuit) than a use that makes some money but has no effect on the copyright holder's market for selling derivative works. A fair use defense is typically difficult to make (the courts apply test rather stringently), so if fanfiction does infringe on copyright, both zines and netfic are likely to fail the fair use test.
Of course, whether a copyright holder wants to go through a trial (with the expense and attendant negative publicity) is entirely another matter.
Selling fanfiction (ie, zines) is not some unique indicator that the work violates copyright, nor does offering your work for free provide a guaranteed 'out' (see this page for some basic information about common copyright myths, including the myth that if you don't make money, it's not infringement).
Also, "making money" does not necessarily "draw attention" to fanfiction. One might make the very strong argument that netfic is much more risky to the fanfiction world because it is so easily discoverable. All the copyright holder has to do is put the name of one of his/her characters into Google and s/he is bombarded with fanfiction. In most cases, zines are no more prominent than netfic, and there are many fewer zines than netfic websites at this point.
I think the poster might be conflating American copyright law with the common fannish custom that a zine maker would not build a profit margin into her publication, since doing so would be profiting off of the fans (her fellow community members, more friends than customers), something which used to be considered gauche.