Stop Calling Yourselves Criminals!

[elfwreck]

A.k.a. "legalities and fanfiction." Disclaimer: I am not a lawyer. I am not a paralegal, nor a legal secretary. My experience with law is pretty much limited to essays on the web, and scanning depositions for law firms. I'm comfortable with legalese, but I'm aware that I don't understand the fine nuances. This is not legal advice; it's an essay

Comments

[terpsichoros]

Bingo on the trademark. That's actually a very important, and separate, issue from copyright. A copyright holder can decide to not enforce for the life of the author plus 69 years, then in that last year, sue the bejesus out of everyone. A trademark holder has to pursue every single plausible infringement as they hear about it, or they may lose their trademark. There's a case right now where Grocery Outlet is trying to claim that Albertson's abandoned the "Lucky's" trademark, and that they can register it for their own use. Trademarks must be filed, and defended. Disney characters are probably trademarked. Most other authors probably don't bother.

[elfwreck]

I have doubt the Lucky's thing is going to work, since they just re-opened in several places in Oakland. Maybe that's why they re-opened. I wound up talking with their customer service reps last week, when Albertson's was unexpectedly closed--apparently Rob had tried to go shopping on changeover day. They said that Lucky's had "a lot of brand recognition" in some areas, and so was being used instead of SaveMart, which is the actual owner.

[terpsichoros]

I don't know - the case is before the 9th Circuit, and Grocery Outlet has a good case that Albertsons abandoned *all* the Lucky trademarks, not just the four they picked up that aren't contested.

[royalbananafish]

Disney characters are definitely trademarked, though they used to be protected only by copyright. There was a HUGE stink when Disney sought trademark protection for them, and the equivalent of barroom brawls broke out on the legal front.

Technically, yes.

[royalbananafish]

Technically, fanfic IS copyright infringement--most of it (but not all of it) in a very cut and dry kind of way. Use of, say, the Harry Potter characters as the main characters in a story (or setting a story in the Harry Potter universe/world) you write makes that story a "derivative work" for Title 17 purposes. (Where it gets less cut and dry: you write your own story and Hermione makes a cameo appearance for a few chapters.) The author of the original work is the only one who has the right to create a derivative work, or allow others to do so

Re: Technically, yes.

[elfwreck]

Use of, say, the Harry Potter characters as the main characters in a story (or setting a story in the Harry Potter universe/world) you write makes that story a "derivative work" for Title 17 purposes.

But there's no established amount of original material that makes a piece a "derivative work." A collage is not considered a derivative work, nor is referring to the original as a metaphor.

And a certain amount of usage is permitted under fair use--for commentary, review, criticism, and parody. (And other more obscure purposes.) What makes commentary in essay form acceptable, but not in the form of a story? In either case, the reviewer is counting on the reader's understanding of the original to make his or her point. ...copyright law prohibits making derivative works without the consent of the owner, unless they are sufficiently "transformative" to qualify as fair use.

Now, remember how I said that an author is unlikely to go after a fan writing fanfic?Disney has a long and solid history of going after every aspect of infringement

[royalbananafish]

Collage has its own special set of obscure cases, since you can hold a copyright on the "selection, arrangement, and" whatever that third thing was...of non-copyrightable data

[elfwreck]

(The fact that they claimed--and got!--trademark on what were otherwise merely copyrightable works of art is another sticky mess altogether.)

I firmly believe (in my nonlawyerish head) that they did this because they wanted to be able prosecute unauthorized use of those materials--and knew that copyright law wouldn't stretch nearly as far as they wanted it to.

Depending on what people wanted to do with their notes from the seminars, they could theoretically be infringing copyright.

I'm thinking of Gabriel. I don't know how much of the background you're familiar with--but he tried to claim "copyright infringement" even in cases where someone else handed off their original notes from his classes. And while he was a particularly clueless example, there are authors who believe "everything remotely possibly connected to my creation is covered by my copyright, and is a violation if I say it is." (And the law is big and blurry, and publishers encourage that kind of thinking

[anonymous]

whats to consider in the LJ/fanfic issue? LJ is not the one writing fanfic to profit- they sell social networking and storage space. some people just happen to use it for fanfic. the fanfic writiers don't earn money by using lj. if making money by hosting fanfic infringed- the copyright holders would go after every web hosting business that a fan sets their fanfic website up at, or fanfiction.net that sells services and serves ads. (If someone wanted to try going after a provider, ffnet would be a better choice than lj, since lj doesn't market itself as a site for fandom- while ffnet was created specifically for fanfic.)

also I link saying fanfic is derivative is too simplifying- i read a lot that is parody, satire, and what i'd call creative critical commentary, all of which, as i understand it are protected as fair use.

[imkalena]

Thanks for posting this, and I am following the interesting comments.

I, too, wish that fanwriters would quit going on about how what they're doing is illegal, but I can see why they're so insistent on trying to get other fans to STFU that they overstate/misstate the case. It makes me long for the days when fandom flew under almost everybody's radar. Now it's in national newspapers and magazines. Some come to find their place in fandom, some to gawk, some to make money, some want to get rid of us pervs if they possibly can. It's mainly the last batch I don't care for. :P

[elfwreck]

Once the net existed, it was foregone that fandom and fanfic would be a lot more public. What kept it hidden before was pretty much just publishing costs; most fen were perfectly willing to share their work with any and all who were interested--they just didn't want to waste paper.

And hey, it's only taken, what, fifteen years for it to start hitting mainstream consciousness?

I have the feeling that the site hosts and media companies who are starting to notice "lots of fanfiction" have absolutely no idea how *much* of it is out there. They look at ff.net, and think "wow, that's a huge lotsa pile of stories"--and don't realize there are huge collections posted to usenet archived in the wayback machine that go back for more than a decade.

(The internet is for porn. Really. Always has been. Oh, and other stuff too... but on 1200 baud connections, people were painstakingly up- & downloading hideous 64 kb gifs of nekkid people.)

[royalbananafish]

D'ya know that song from "Avenue Q"? ("The internet is great." bum bum "for Porn!")

[elfwreck]

It's got a permanent spot on my MP3 player. :)

[sanacrow]

Another thing that's not often taken into consideration is that many authors *encourage* fanfic and fanart. Others may not actually encourage it, but have made statements of their preferences for what fans write about that either state or imply that they don't much care about fanfic so long as their preferences are taken into consideration.

By most standards, if the author approves of the practice and/or has given reasonable cause to believe they don't have problems with fanfic, there are not any serious legal problems with most fanfic derived from those author's works.

(Personally, I'm amused at how many non-fen folks are *shocked* that an author could approve of and/or encourage fanfic. Even when it's pointed out, lots of them seem to have trouble seeing how much authors benefit from fanfic, and how many folks are introduced to new worlds and authors via fanfic.)

[elfwreck]

There's a widespread belief that such encouragement is extremely rare, and is the exception rather than default assumption to how an author would react to fanfic.

There are, of course, no statistics to support either side. And the legalities are complex enough that several authors who love fanfic have had to forbid it to some extent or another, to keep from being sued by fans who say "you stole my idea and used it in your new book."

NEW ICON!!

[eldriwolf]

since ya'all were rambling about disney---photo of a licensed (I presume) product???
wher will that fall??/ but---the big bad fairy-godmother/wolf how could i not?
Zeke-in drag--Come ON