PSA: A quick and dirty primer on Copyright isuses in fandom
So this was a discussion that got prompted by mairinathaira and her distaste for one author's stance on fanfiction. But I think it touches on a lot of common issues for fanworks, so I thought it'd be helpful to re-post my comments for my flist, just for FYI purposes.
First, I feel like I should say that I'm not a specialist in this area by any means, but I do have a basic understanding of U.S. Copyright law. I'm sure there are much more knowledgeable sources that can and should be tapped if you have serious legal issues you need advice on.
Another caveat and a very common mistaken assumption I've seen around fandom: THERE IS NO SUCH THING AS AN INTERNATIONAL COPYRIGHT PROTECTION SYSTEM. There are treaties and agreements between some countries, but they are by no means global. As it were, what I'll expound on below is relevant to the United States only. If you're overseas, check the laws relevant to your country.
To start, fanfic is, actually, illegal in the sense the creators of the original work get the sole right to create derivative works. Derivative works are basically any work outside of the original, i.e. Harry Potter the book is the original work, and Harry Potter the movie is a derivative work. There are joint ownership issues in who owns the copyright for works licensed by the original creator as well as ownership issues regarding the derivative work itself, but in the interests of not complicating things, let's stick with the basic work without any middleman.
Fanfics and fanarts essentially fall into the derivative work category: you are creating a work either based on a character or a story that already exists. Therefore, when you use someone else's character, you are infringing on their exclusive right to create derivative works, making it actionable infringement.
Another common fallacious assumption I've seen: ordinary infringement is not an intent crime. You don't need to be seeking unsavory things to infringe--if you use the character from someone else's work, that's infringement. Same goes for LJ icons and any other fan based work, especially doujinshi. A disclaimer at the beginning of a fanfic that says "no Copyright infringement" doesn't save you--you're still infringing when you make the work. There is also criminal infringement of Copyright, which does require intent, but that's a different beast altogether.
HOWEVER, this is not necessarily the end-all. In the US, there's something called the Fair Use exception. This is a defense that allows works based on existing works to be created, depending on how it stacks up against a four part test, which includes, yes, the monetary factor. If you're NOT making money off of your fic/art/whatever, your chances of claiming a successful Fair Use defense improves. This test is not clearly defined, though, and it's not guaranteed that you can always raise this defense successfully. This is why the Copyright Office says the safest way to protect yourself is just to ask the creator for permission.
Most creators are aware that fanwork exists, and because they're not stupid enough to alienate their base, they simply give implicit permission. Copyright protection only occurs when invoked; creators do NOT have sue. But for a few authors who tend to throw their weight around, places like ff.net will generally cave to their demands even if there's a basis for a fair use exemption, simply because they don't want to take the chance.
Most authors will think that publicity is a good thing, and enjoy having a fanbase. In cases like the anime industry, it's a really lucrative part of the market that feeds into merchandise, spin-off series, and has a huge potential to create more work for mangaka as they gain supporters. And in the end, it's just not worth their time.
tl;dr
Can authors sue me for writing fanfiction? YES
Will they sue me for writing fanfiction? Probably not.
Man, with my love of irony, I wish I had a fanart to stick at the bottom of this post. :p
First, I feel like I should say that I'm not a specialist in this area by any means, but I do have a basic understanding of U.S. Copyright law. I'm sure there are much more knowledgeable sources that can and should be tapped if you have serious legal issues you need advice on.
Another caveat and a very common mistaken assumption I've seen around fandom: THERE IS NO SUCH THING AS AN INTERNATIONAL COPYRIGHT PROTECTION SYSTEM. There are treaties and agreements between some countries, but they are by no means global. As it were, what I'll expound on below is relevant to the United States only. If you're overseas, check the laws relevant to your country.
To start, fanfic is, actually, illegal in the sense the creators of the original work get the sole right to create derivative works. Derivative works are basically any work outside of the original, i.e. Harry Potter the book is the original work, and Harry Potter the movie is a derivative work. There are joint ownership issues in who owns the copyright for works licensed by the original creator as well as ownership issues regarding the derivative work itself, but in the interests of not complicating things, let's stick with the basic work without any middleman.
Fanfics and fanarts essentially fall into the derivative work category: you are creating a work either based on a character or a story that already exists. Therefore, when you use someone else's character, you are infringing on their exclusive right to create derivative works, making it actionable infringement.
Another common fallacious assumption I've seen: ordinary infringement is not an intent crime. You don't need to be seeking unsavory things to infringe--if you use the character from someone else's work, that's infringement. Same goes for LJ icons and any other fan based work, especially doujinshi. A disclaimer at the beginning of a fanfic that says "no Copyright infringement" doesn't save you--you're still infringing when you make the work. There is also criminal infringement of Copyright, which does require intent, but that's a different beast altogether.
HOWEVER, this is not necessarily the end-all. In the US, there's something called the Fair Use exception. This is a defense that allows works based on existing works to be created, depending on how it stacks up against a four part test, which includes, yes, the monetary factor. If you're NOT making money off of your fic/art/whatever, your chances of claiming a successful Fair Use defense improves. This test is not clearly defined, though, and it's not guaranteed that you can always raise this defense successfully. This is why the Copyright Office says the safest way to protect yourself is just to ask the creator for permission.
Most creators are aware that fanwork exists, and because they're not stupid enough to alienate their base, they simply give implicit permission. Copyright protection only occurs when invoked; creators do NOT have sue. But for a few authors who tend to throw their weight around, places like ff.net will generally cave to their demands even if there's a basis for a fair use exemption, simply because they don't want to take the chance.
Most authors will think that publicity is a good thing, and enjoy having a fanbase. In cases like the anime industry, it's a really lucrative part of the market that feeds into merchandise, spin-off series, and has a huge potential to create more work for mangaka as they gain supporters. And in the end, it's just not worth their time.
tl;dr
Can authors sue me for writing fanfiction? YES
Will they sue me for writing fanfiction? Probably not.
Man, with my love of irony, I wish I had a fanart to stick at the bottom of this post. :p