Where Fan Fiction Stands On Copyright: A Legal Primer

from the know-your-rights dept

Many people who fall in love with a franchise or story will show that love through the creation of fan art, fan fiction and other derivative works. The question over the legality of those works is often a murky area of copyright law. A few weeks back, we highlighted a video that touched on the nature of those works when it comes to copyright and the potential to infringe. However, it did not go into any specifics on the legalities.

Lucky for us, Lauren Davis, over at io9, decided to clear the air a bit by explaining the legal landscape behind fan works, citing case law and the law itself. To help pull it all together she even got the help of Rebecca Tushnet. Lauren's breakdown is pretty thorough and is well worth a full read.

The first area discussed in this breakdown is that of character copyright.
To a certain extent, creators have a copyright on their characters. If I'm writing a story about Harry Potter, for example, J.K. Rowling's copyright definitely comes into play.
Not long ago, we discussed a case revolving the use of public domain stories in which the characters and settings are still in use in copyrighted stories. This case, brought by Edgar Rice Burroughs Inc., relied a lot on the fact that the characters from ERB's Tarzan and John Carter stories are still used in copyrighted works and are trademarked aspects of the estate's business. While that suit revolves primarily around trademark law, it still highlights some of the foggy landscape around the use of characters from others stories. Using the characters from a work currently covered by copyright law can be tricky, especially if it can be shown that your use doesn't fall under fair use.
On a practical level, Professor Tushnet notes that "the boundaries are really super fuzzy. So in general, when courts face an issue like that, they tend resolve them as matters of fair use. They just assume that there's copyrighted character and then analyze what is the fair use."
So what exactly is covered by fair use? Lauren takes a look at the basic four factor test that many judges will use when deciding a case brought against fan fiction.
(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.
We discuss these four factors quite a bit. Many things including blogging, video walk-throughs and tutorials, news and commentary and many other uses of copyrighted works rely on these four factors to prove their use is fair. Unfortunately, these four factors are not a protection from accusations of infringement, merely a defense when brought to court. This has led to the current climate of takedowns on sites like YouTube and others. So it becomes increasingly necessary for fans to be cautious in how they create and distribute their work.

This climate of cautiousness can often lead to over cautiousness as well. This chilling effect leads many creative people to not create or distribute their derivative works in the fear that they might become a target of a lawsuit. These fears can be compounded by the over zealous use of the DMCA, cease and desist letters and other takedown notices that companies use. As people have fan works taken down without an explanation of why, or because of overly broad copyright claims, the culture of fear spreads.

Hopefully, as more and more creators recognize the value of derivative works, we will see fewer and fewer DMCA notices and cease and desist letters. Until then, it is always important to understand your rights as well as the law if you do work with the creations of other people. Knowing your rights under copyright law and fair use, will help you respond to claims of copyright infringement. While it may not get your works back online, it will help those who rely on such takedowns to understand that we aren't just going to roll over for them.


Reader Comments (rss)

 
The fans who write fanfiction, make fan videos, etc....are usually the biggest fans of the original work. They're the fans that are often most loyal, and the fans who often spend the most money. And those fans are often what keeps your work alive during "down" times, and once it's completed and not being added to. To attack fan material is to attack those fans.

I've loved fan fiction since I was a little girl and I've grown up reading it in various fandoms of movies, shows, etc...that I've loved. I've also spent scary amounts of money on official product at the same time.

I love conventions, I love fandom. I love being able to share that love with other fans on the internet. It's an example of one of the best things about the internet: the way you can connect to other fans and share your love of something.

Fan fiction is not about money or profitting from a creator's work. It's not about being "unoriginal". It's about loving the material so much and wanting to share in that sandbox with other fans. It's fun and adds to the fandom experience. Start taking that stuff away, and I have less reason to want to stay on the beach.

I would love to write an original novel myself. And if I were ever lucky enough, I would embrace fan fiction of my work wholeheartedly.

And I'll never buy into the idea that because we suddenly have the the internet, we shouldn't do things we've done for years, like share fan work like fan fiction (which used to exist in printed "zines") or that it's "wrong".

Creators: I'm not making a dime off my fan material. But take away my ability to make it and enjoy it, and I'm a lot less likely to spend another dime on the official stuff out of disgust. I don't like being penalized or criminalized for being one of your biggest fans.
—Anonymous Coward

(Flattened / Threaded)

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    Liz (profile), Aug 16th, 2012 @ 12:43am

    It is fairly easy to turn fan fiction into original fiction. Just change the names and locations of your writing. I'm pretty sure this is how Eragon came about since it's a lot like Star Wars. And that series itself drew heavily from other works.

    Although a lot of times fan fiction, if done well enough can become officially licensed products. I don't remember which titles, but I think I recall some novels written in the Star Trek universe that were later picked up and licensed.

     

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      Anonymous Coward, Aug 16th, 2012 @ 12:56am

      Re:

      The problem is that you should not have to change FanFiction into original fiction in order for it to be sold.

      As long as you say that X is not supported by the original maker of the characters/series in question, you should be allowed to make and even to sell your own derivative works.

      After all, Harry Potter is a derivative of ANOTHER series that I read back when I was in elementary school in the 80's.

       

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      Anonymous Coward, Aug 16th, 2012 @ 1:00am

      Re:

      Thing is, what motivates most fanfic writers is making stories involving their favorite characters.

      If you're a fan wanting to write a story in the Ranma 1/2 universe then replacing ranma with some other aquatransexual superpowered martial artist won't do.

       

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        Anonymous Coward, Aug 16th, 2012 @ 1:03am

        Re: Re:

        Er, unless it's Herb :P

         

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        SujaOfJauhnral (profile), Aug 16th, 2012 @ 11:41pm

        Re: Re:

        This is true!

        Sometimes I make stories about the official campaigns of my favorites games except with my favorite characters running through it, Scrooge McDuck and Sandy Squirrel(from Spongebob) running through Neverwinter Nights Hordes of the Underdark is one example.

        A merge of one of my favorite games of all time with two of my favorite characters of all time, what could possibly be more fun and enjoyable to read/write? Isn't that what art is all about? Fun & enjoyment?

         

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      Alana (profile), Aug 16th, 2012 @ 1:31am

      Re:

      Like Fifty Shades of Grey, which was originally a twilight fanfic?

      ...not sure if a good idea.

       

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      Ninja (profile), Aug 16th, 2012 @ 4:05am

      Re:

      I personally like the erotic/pornographic fan fictions (no, not the XXX parodies, I mean written or in form of comics although the porn can be quite entertaining). Reminds me of that Kyonko doujin (Kyon from Haruhi series turns into a girl).

      The Japanese animation world has tons of fan fictions and fan made stuff and Touhou comes to mind as some fan powered project.

       

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    gnudist, Aug 16th, 2012 @ 12:48am

    Er, FAR use? Is that anything like FAIR use?

     

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      Yoshord, Aug 20th, 2012 @ 8:30pm

      Re: Far use

      Far use is, when after being sued by a copyright owner for making fanfic, one uses the official works they own as target practice, trying to hit the books from as far away as possible.

       

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    Anonymous Coward, Aug 16th, 2012 @ 1:51am

    "This climate of cautiousness can often lead to over cautiousness as well. This chilling effect leads many creative people to not create or distribute their derivative works in the fear that they might become a target of a lawsuit. These fears can be compounded by the over zealous use of the DMCA, cease and desist letters and other takedown notices that companies use. As people have fan works taken down without an explanation of why, or because of overly broad copyright claims, the culture of fear spreads."

    That's a nice paragraph of generalities and nothingness. It's almost vapid.

    Fan fiction in and of itself is never an issue, provided it's for personal consumption (ie, you give it to a couple of your friends for a laugh). However, when you add "on the internet", you run into all sorts of issues as result of the publication, even if you never intended for problems to exist.

    Specifically, while your intention may have been non-commercial, the site or sites that choose to publish it may be of a commercial nature, or the use of your work may be of a commercial nature. That gets you into all sorts of trouble. Your intentions as an author can be usurped by the actual use of the work. Even if it doesn't seem like it should, it's something that could cloud your fair use claims.

    Really, fan fiction is very high risk, with low return. I understand why people do it, but it's a pretty hard thing to justify in simple terms. It is almost entirely depending on the copyright holders being nice about it.

     

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      Anonymous Coward, Aug 16th, 2012 @ 2:15am

      Re:

      Of course, one of the points of writing fanfics is sharing them with the fan community.

      You know, the one that you can best distribute to using the internet.

       

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      Anonymous Coward, Aug 16th, 2012 @ 2:32am

      Re:

      If it's so high risk and low return why should authors get their panties in a twist over it? Have authored works ever come under threat by fanfiction? Are authors expecting fanfiction to be run on user-paid servers?

       

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      PaulT (profile), Aug 16th, 2012 @ 2:33am

      Re:

      "Fan fiction in and of itself is never an issue, provided it's for personal consumption (ie, you give it to a couple of your friends for a laugh)."

      ...and if the friends are a worldwide group of fans into the same thing you are, and you post it on a non-commercial fan page? You know, the thing that's most likely nowadays as the internet brings fan groups together far more easily than offline methods?

      "I understand why people do it, but it's a pretty hard thing to justify in simple terms."

      Judging by your tone, you're one of the usual ACs who claims that art will never be created without a direct financial incentive behind it, so I doubt you understand anything here.

      "Really, fan fiction is very high risk, with low return."

      Which is part of the problem. It's the people spending the most money on the original material creating new fiction with no financial motivation or any real motivation outside of the fact that they've already bought all the official fiction available. That this is deemed risky in any way is part of the problem with modern copyright.

      "It is almost entirely depending on the copyright holders being nice about it."

      Any copyright holder who attacks true fan material is a moron. Sadly, and we see over and over, if the original creators aren't morons, their lawyers usually are.

       

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        Anonymous Coward, Aug 16th, 2012 @ 4:07am

        Re: Re:

        "...and if the friends are a worldwide group of fans into the same thing you are, and you post it on a non-commercial fan page? You know, the thing that's most likely nowadays as the internet brings fan groups together far more easily than offline methods?"

        Problem there is that many of sites that host the stuff are commercial in nature, and the works often presented on pages with advertising, sometimes as the feature entertainment. The author may not have any commercial intentions, the sites do. Hard to pull it apart. Also, the definition of "friends" generally doesn't includes thousands of people all over the world, it's beyond the scale that copyright holders might easily ignore.

        Simply put, if you buy into the mindset that the internet gives eveyrone the same distribution levels, then the fan fiction is as available as the original. That tilts things against fair use.

        " It's the people spending the most money on the original material creating new fiction with no financial motivation or any real motivation outside of the fact that they've already bought all the official fiction available. That this is deemed risky in any way is part of the problem with modern copyright."

        No, it's the risk of being less than fully creative. When you base your work off of someone else's copyright material you take risks. It's nothing to do with "modern copyright" and everything to do with "modern distribution". Quit trying to blame the copyright holders for being more original.

        "Any copyright holder who attacks true fan material is a moron. "

        *sputter*. Got your broadbrush out? All or nothing? Aren't you thinking hard!

         

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          PaulT (profile), Aug 16th, 2012 @ 4:47am

          Re: Re: Re:

          "Problem there is that many of sites that host the stuff are commercial in nature, and the works often presented on pages with advertising, sometimes as the feature entertainment."

          There's only a problem if you choose to equate the platform used to distribute material with the material itself. Even if a site is profiting from the material, that's an issue for the site, not the author. It shouldn't affect the fair use of the material itself, it should just mean that the particular distribution method may not be covered. The distributor may be liable. The author should not.

          "Simply put, if you buy into the mindset that the internet gives eveyrone the same distribution levels, then the fan fiction is as available as the original. That tilts things against fair use."

          Why? Availability has sod all to do with profit, and one could argue that freely available fan faction is MORE available than the original (at least in terms of intent if you discount the inevitably piracy). Why should that count against fair use? It counts against assumptions that are no longer relevant, but that's not the same thing.

          Oh, and yes I do buy into that mindset since it's demonstrably and obviously true. Should there be another reality I subscribe to?

          "No, it's the risk of being less than fully creative."

          That's a subjective criteria that should not be subject to law. I would argue that I've seen a lot of fan fiction that's a great deal more original than half the "original" crap that's published. That doesn't make you right or me wrong - it's just opinion.

          "When you base your work off of someone else's copyright material you take risks."

          Every artist has done so in the past. it's a shame that "protection" for some people includes attacking the fans who get most creative with their material for no other reason than to be a fan.

          "Quit trying to blame the copyright holders for being more original."

          Quit putting words into my mouth and address the ones I actually type.

          "*sputter*. Got your broadbrush out? All or nothing?"

          Yes, if you read the words I say (*true* fan material, i.e. material created and distributed for the joy of it and not for profit).

          Feel free to explain why I'm wrong without the usual sarcasm and personal attacks if you disagree.

           

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            Anonymous Coward, Aug 16th, 2012 @ 6:31am

            Re: Re: Re: Re:

            "There's only a problem if you choose to equate the platform used to distribute material with the material itself. "

            They are intertwined without any possible simple way to separate them. The distibution wouldn't happen with out the site, and the site wouldn't have material without the stories. So they are sort of symbiotic here.

            "Availability has sod all to do with profit, and one could argue that freely available fan faction is MORE available than the original (at least in terms of intent if you discount the inevitably piracy). Why should that count against fair use? It counts against assumptions that are no longer relevant, but that's not the same thing."

            Availability has a lot to do with the size of the market, and can make one wonder at what point the fan fiction goes from merely a cute fun thing for friends and becomes a competitive product. Again, if you buy all the DIY horse crap here on Techdirt, you have to accept that the market for the fan fiction is EXACTLY the same as the original, and thus can perhaps harm sales of the original, and can also dilute the original writer's privilege to write future books in a series or as a sequel. So the size of the market would certainly be an issue, even if the writer didn't specifically intend it.

            "That's a subjective criteria that should not be subject to law. I would argue that I've seen a lot of fan fiction that's a great deal more original than half the "original" crap that's published. "

            it's one of the key issues of law. A derivative work, by definition, would be less creative, as it uses the characters and settings created by someone else. A portion of the world is done for them.

            "Every artist has done so in the past. it's a shame that "protection" for some people includes attacking the fans who get most creative with their material for no other reason than to be a fan."

            No, you are playing the idiotic game again of confusing "influenced by" and "copied from". I can write a civil war book influenced by Gone With the Wind and other books about the era, or I can write "The Wind Done Gone" which copies the characters from the original.

            Again, if you are going to hold Disney up as a copycat, you have to admit and accept that fan fiction is just as bad, and deals not with public domain work but with copyright material.

            "Yes, if you read the words I say (*true* fan material, i.e. material created and distributed for the joy of it and not for profit)."

            The intention doesn't matter if the product is getting widespread distribution on commercial or for profit sites. See my point above. Heck, if the fan fiction is written in part to boost the profile of the writer, there is "intent" to profit, even if it's not directly financially.

            Fair use isn't cut and dry, and the more things that pile up against fair use the more likely it is that the DMCA claim will be upheld.

            Tagging yourself as a "fan" doesn't suddenly negate the laws - or common sense.

             

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              Dark Helmet (profile), Aug 16th, 2012 @ 7:04am

              Re: Re: Re: Re: Re:

              "Availability has a lot to do with the size of the market, and can make one wonder at what point the fan fiction goes from merely a cute fun thing for friends and becomes a competitive product."

              This is spoken like someone who is unfamiliar with Fan Fiction in general. FanFic does NOT compete with the original product. In most cases, it has little to no effect on the original product, since nearly everyone reading it is a fan and likely already a paying customer of the original.

              On the other hand, if that FanFic is REALLY well-written, it can only generate interest in the original. Who the hell would read FanFic without wanting to read the original work?

              I, for one, would absolutely LOVE is someone liked my novels enough to build off of them further. I'd expect that it could only generate interest in my books no matter what, but I would also build a symbiotic relationship with the FanFic'ers to the point of asking them to include a link or blurb to my book at the start of theirs. Hopefully they'd be cool enough to do so, but if they didnt?

              *shrugs*

               

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              PaulT (profile), Aug 16th, 2012 @ 7:12am

              Re: Re: Re: Re: Re:

              "They are intertwined without any possible simple way to separate them. The distibution wouldn't happen with out the site, and the site wouldn't have material without the stories. So they are sort of symbiotic here."

              You're aware that fan fiction predates the internet, right?

              "Availability has a lot to do with the size of the market"

              Which has what to do with non-commercial fair use?

              "and can make one wonder at what point the fan fiction goes from merely a cute fun thing for friends and becomes a competitive product."

              When it starts being distributed for profit, perhaps? You seem to be trying to pin that down to the number of people it's available to. I disagree.

              "and thus can perhaps harm sales of the original"

              Or expand them. Try looking at all the angles here, not just the ones that allow you launch half-assed attacks on this site and its commenters.

              "can also dilute the original writer's privilege to write future books in a series or as a sequel."

              Only if you presume that fans will be happy with unofficial knock-offs rather than officially produced books by the original authors. That's a rather strange position to take.

              I'd personally be more concerned with the massive numbers of non-fanfic rip-offs that flood the market to fill the gaps created by people waiting for the official sequels. But they're for-profit and use different character names, so you seem to find those more acceptable for some reason.

              "I can write a civil war book influenced by Gone With the Wind and other books about the era, or I can write "The Wind Done Gone" which copies the characters from the original."

              ...and the difference between those books other than the character names and the direct acknowledgement of influence would be...? Other than the characters, they'd both be original works, who cares what the characters are called if the motivation for writing is not profit?

              "Again, if you are going to hold Disney up as a copycat"

              Try addressing the words I actually say if you're going to attack me. I didn't say that.

              "The intention doesn't matter if the product is getting widespread distribution on commercial or for profit sites."

              Yes it does - to the author. The sites can be prosecuted for profiteering, but that doesn't affect the original work nor the intentions of its author. A pity you seem to think that the actions of a 3rd party should cause problems for an unrelated 1st party, but that is consistent with your other views I suppose.

              "Heck, if the fan fiction is written in part to boost the profile of the writer, there is "intent" to profit, even if it's not directly financially."

              If the financial benefits are not direct, then there's no more problem with an author doing this than a musician covering the songs of others before writing his own original work. Are you saying that all musicians who ever played cover versions for a group should owe their later financial success to earlier musicians? Other than the fact that the internet allow more people to read/hear/view the fan pieces, what's the problem? Should E.L. James hand back all her profits to Stephanie Meyer because the early versions of the story were Twilight fanfic?

              "Tagging yourself as a "fan" doesn't suddenly negate the laws - or common sense."

              Something you display very little of when on your "I'm right you're wrong" high horse, as seen here.

               

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                Anonymous Coward, Aug 16th, 2012 @ 7:26am

                Re: Re: Re: Re: Re: Re:

                "You're aware that fan fiction predates the internet, right?"

                yes, of course. But it's a similar question to the difference between mix tapes and bit torrent: Scale. Pre-internet, pre-computers, the costs to the writer to distribute a work of fan fiction were such that it would have been incredibly rare for a non-commercial book to have made it past a very few copies.

                When it moved to diskettes, it got cheaper, but still physically demanding. Bit Torrent and the web in general change the scale of how these things move, and as such, moves the pendulum much further towards violation.

                "Which has what to do with non-commercial fair use?"

                In part because you have the potential to harm the original writer's ability to make a living from the characters they created, by "using them up" in fan fiction stories. You could very directly diminish the market for a sequel, as an example.

                "When it starts being distributed for profit, perhaps? You seem to be trying to pin that down to the number of people it's available to. I disagree."

                Number of people is still pretty key here. Whatever case law may exist from the pre-internet era doesn't address the scale of the current distribution systems. In e-book terms, the fan fiction has exactly the same distribution potential. That is a pretty big change, don't you think?

                "and the difference between those books other than the character names and the direct acknowledgement of influence would be...? Other than the characters, they'd both be original works, who cares what the characters are called if the motivation for writing is not profit?"

                The second book would have not existed but for the first, this collection of characters, time, and subject matter are only relevant because of the first book, and as a result unfairly enriches itself from them.

                "Yes it does - to the author. The sites can be prosecuted for profiteering, "

                No, it does not. The author puts the work out there knowing it will get distribution, seeding it on bit torrent or publishing it on a site "for free" that sells fan fiction as a compilation download. Putting it on a commercial site, even if the writer does not get specific commercial benefit, should still be an issue for the writer.

                "If the financial benefits are not direct, then there's no more problem with an author doing this than a musician covering the songs of others before writing his own original work."

                Yes, and the musician has to pay for the rights to use the song. They can make their own performance, but only as they pay the rights holder for the right to use the song.

                Thanks for making my point for me!

                "Something you display very little of when on your "I'm right you're wrong" high horse, as seen here."

                Umm, hello Mr Ad-hom. Would you care to stick to discussions, or should I start making reference to the fact that your parents weren't married when you were born?

                 

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                  Anonymous Coward, Aug 16th, 2012 @ 8:14am

                  Re: Re: Re: Re: Re: Re: Re:

                  You are full of shit, fair-use has nothing to do with the number of people that see the work or if money it made. Fanfiction is fair use and will always be so. And there's nothing you can do about it.

                   

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                  PaulT (profile), Aug 16th, 2012 @ 8:20am

                  Re: Re: Re: Re: Re: Re: Re:

                  "But it's a similar question to the difference between mix tapes and bit torrent: Scale."

                  Well, ignoring the stupid attempt you're making to try and equate fanfic and piracy - so? Are you honestly saying that the only thing that keep people buying original work instead of reading fan fiction is its availability? Because if so, that not only reflects poorly on the quality of the original, it does show a misunderstanding of why and how people create/consume these works to begin with. Certainly my experience of such fiction is that it fills the gaps for the biggest fans while they wait for the official stuff. Casual fans will just do something else unrelated until the next sequel comes along.

                  "In part because you have the potential to harm the original writer's ability to make a living from the characters they created, by "using them up" in fan fiction stories. You could very directly diminish the market for a sequel, as an example."

                  Is this just what you "feel", or do you have anything to back this up? Do you honestly think that the huge number of Harry Potter stories out there means that Rowling wouldn't be able to sell a sequel, for example, or that Meyer couldn't sell the next Twilight book if she decided to finish it?

                  As with your anti-piracy comments, this seems to come from a vague feeling rather than anything related to reality. Can you name a franchise that's been stopped due to fan fiction? Because I can name a great many that have coexisted with fan fiction for decades...

                  I also notice you don't address the other side of the coin (a constant stream of fan material can keep interest alive in an otherwise dormant franchise).

                  "The second book would have not existed but for the first, this collection of characters, time, and subject matter are only relevant because of the first book, and as a result unfairly enriches itself from them."

                  Again, what does this matter if it's a non-commercial work created purely for fans to have something to enjoy after consuming everything that's officially available?

                  "No, it does not. The author puts the work out there knowing it will get distribution, seeding it on bit torrent or publishing it on a site "for free" that sells fan fiction as a compilation download. Putting it on a commercial site, even if the writer does not get specific commercial benefit, should still be an issue for the writer"

                  Wow. So your position is literally that the author should have some responsibility for profit gained from the work, even if they personally put it out for free and somebody else profited later on without their blessing or intent? That's a mighty stretch there.

                  "Yes, and the musician has to pay for the rights to use the song."

                  No they don't. If they're recording or playing professionally, yes, but did Justin Beiber pay royalties when he played the cover version that got him noticed, or the thousands of other amateur musicians posting videos of them singing? Did other musicians pay royalties for the music they played to friends or on a pirate radio station before they got proper gigs? No, but it's the same thing.

                  "Thanks for making my point for me!"

                  You seem to be deliberately misunderstanding both the point and my words. What a surprise.

                  "Umm, hello Mr Ad-hom"

                  Aw, sorry did I hurt your delicate feelings? I can't help but notice you get all upset about that but don't address your false attribution of earlier comments to me. Keep it civil, but if you're the AC I think you are you really don't have room for the moral high ground.

                   

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                    dennis deems, Aug 16th, 2012 @ 10:48am

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    I disagree with the AC, natch -- but it seems to me that everything he's posted to this thread so far has been even-tempered and reasonable.

                    Specifically, I disagree with his view that fan fiction is in competition with the work from which it derives. Those who read fan fiction want MORE of the source material, not less. I find it beyond impossible to imagine readers would desire a proliferation of fan-written Harry Potter stories INSTEAD OF a single new story by J. K. Rowling.

                    The example of cover songs is an interesting one in comparison with fan fiction. A cover of another artist's song actually DOES compete with the original work for our attention, and not infrequently the cover version supplants the original (thus the term "cover"). For this reason I think the comparison serves as a contrast to what fan fiction does. A musical analogue to fan fiction would create MORE interest in the work of the original artist.

                     

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                      PaulT (profile), Aug 17th, 2012 @ 1:39am

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      "A cover of another artist's song actually DOES compete with the original work for our attention, and not infrequently the cover version supplants the original (thus the term "cover"). For this reason I think the comparison serves as a contrast to what fan fiction does. A musical analogue to fan fiction would create MORE interest in the work of the original artist."

                      I would disagree with the idea that cover versions *replace* the original. In fact, I can certainly name many times where I've enjoyed a song, then realised it was a cover version and tracked down other songs by the original artist. Without the cover version, I may never have heard the original. Of course, that varies a great deal depending on the type of audience, the popularity of the original song, and so forth. There's plenty of times an original and a cover version can be equally loved, and the fact that songs regularly sell well after being covered on The X Factor and the like shows that they can definitely create interest in an original version as well.

                      It's a clumsy analogy when you get into specifics but the general idea (fans using the work they love to expand/create new offshoots simply for the love of the original) is sound.

                       

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                  Anonymous Coward, Aug 16th, 2012 @ 9:16am

                  Re: Re: Re: Re: Re: Re: Re:

                  I have come to the conclusion that you do not understand Fair Use any more than you understand fan fiction. You make many assertions that cannot be factually made. Commercial use does not negate fair use. Scale does not negate fair use. Fair use can only be determined on a case by case basis.

                   

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                  Anonymous Coward, Aug 16th, 2012 @ 11:18am

                  Re: Re: Re: Re: Re: Re: Re:

                  "In part because you have the potential to harm the original writer's ability to make a living from the characters they created, by "using them up" in fan fiction stories. You could very directly diminish the market for a sequel, as an example."

                  This is possible, but unlikely. I think it's more likely to increase interest in the series as a whole. But I can think of two cases where it might hurt:

                  Scenario 1: The fanfaction community (as a whole, not just one fanfiction) takes your characters in a direction you don't want them to go. So when your sequel comes out, the fans have a hard time adjusting. (You can probably nip this in the bud by providing "hints" to the fanfiction community that they're mistaken about the nature of that character, or something.)

                  Scenario 2: The fanfiction is so much better than your sequel that nobody wants to read your junk. (Not much you can do about that except write better.)

                  "Number of people is still pretty key here. Whatever case law may exist from the pre-internet era doesn't address the scale of the current distribution systems. In e-book terms, the fan fiction has exactly the same distribution potential. That is a pretty big change, don't you think?"

                  The distribution does matter, yes. One of the factors for fair use is impact on the original, and the greater the distribution, the greater the impact. However, that does not change that the impact is usually a positive one for the original. As has been stated, who reads a fanfiction without reading the original?

                   

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                    Nathan Gibson (profile), Aug 16th, 2012 @ 2:47pm

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    Porn is a big issue. Rule 34 can get quite disturbing, especially for authors who see characters that are practically their own children put in situations by fans that the author would never put them in.

                     

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                      SujaOfJauhnral (profile), Aug 16th, 2012 @ 11:54pm

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      Tell me about it. Scrooge McDuck rule 34.. They almost always make him gay, and a pedophile, molesting his nephews =(

                      In the official story he has a girlfriend somewhere, I want to see him fucking her, not a bunch of kids =( Kids are NOT sexy =(

                       

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                      PaulT (profile), Aug 17th, 2012 @ 1:59am

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      Rule 34 is an issue, but realistically it's a moral/taste one rather than anything that should come under legal/business restrictions. The fact is that once your art is out there, people will do things with it and one of the overriding impulses humanity has involves sex. If you've created something even remotely popular, something sexual will be created using it. Always has, always will.

                      I can understand authors being uncomfortable or even shocked and disgusted by this, but it's going to happen. The only way to stop it is not to release your characters to the public to begin with.

                       

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              silverscarcat (profile), Aug 16th, 2012 @ 7:44am

              Re: Re: Re: Re: Re:

              "Again, if you buy all the DIY horse crap here on Techdirt, you have to accept that the market for the fan fiction is EXACTLY the same as the original, and thus can perhaps harm sales of the original, and can also dilute the original writer's privilege to write future books in a series or as a sequel."

              Lol, whut?

              Oh my... MWAHAHAHAHAHAHAHA!

              you have no idea what fanfiction really is, do you?

              The fact that you go "fan fiction" alone negates all your points.

               

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              Torg (profile), Aug 16th, 2012 @ 9:45am

              Re: Re: Re: Re: Re:

              "A derivative work, by definition, would be less creative, as it uses the characters and settings created by someone else. A portion of the world is done for them."

              That depends on the original work and the fanfiction in question. There are forms of creativity beyond creating something out of whole cloth. For example, the creativity required to make the worlds of Fallout and My Little Pony mesh nicely together is substantial.

               

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                SujaOfJauhnral (profile), Aug 17th, 2012 @ 12:02am

                Re: Re: Re: Re: Re: Re:

                the creativity required to make the worlds of Fallout and My Little Pony mesh nicely together is substantial.

                Absolute truth!

                I make these kinds of stories all the time, they are called 'crackfics', the entire point is to take a bunch of often clashy things and try to make it work out.

                It is NOT easy, it takes ALOT of careful thinking and finesse to even out the edges. Often you will have to come up with very creative solutions to make it work.


                My personal example was making the setting a dimensional conduit/HUB where things have been blending together for millions of years, aswell as having the characters be alternate dimensional versions of the originals so I could further smooth out compatibility issues. It worked out great, but it took a long time.

                In the end I probably had to do about equal, if not more, work than the original sources to make it all work together properly, this is also counting my own 'reinventing' of existing things, I never 'plug and play'.

                 

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          Anonymous Coward, Aug 16th, 2012 @ 5:49am

          Re: Re: Re:

          "...if you buy into the mindset that the internet gives eveyrone the same distribution levels, then the fan fiction is as available as the original. That tilts things against fair use."

          More extensive distribution than the original is not a criteria for or against fair use.
          And since there's no Amazon or brick-and-mortar distribution of the fan-fic, your "statement" is a lie, boy.

           

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          Anonymous Coward, Aug 16th, 2012 @ 5:52am

          Re: Re: Re:

          "No, it's the risk of being less than fully creative."

          So anyone doing work based on existing characters is being "less than fully creative"

          Tell that to the combined staffs of Marvel Comics, DC Comics, Disney, Paramount (Star Trek), Lucasfilm (Star Wars and Indiana Jones), newspaper syndicates (the creators of most comic strips created pre-1960 are dead.), etc.
          You're an idiot, boy.

           

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          ld, Aug 16th, 2012 @ 6:39am

          Re: Re: Re:

          "No, it's the risk of being less than fully creative. When you base your work off of someone else's copyright material you take risks"
          That's got to be one of the lamest things I've ever read, you obviously don't create much of anything yourself as EVERYTHING human being create is derivative because human creativity feeds on and is inspired by everything the human being doing the creating has ever experienced in their lives, mostly at the subconscious level. Multiple human beings will often create similar things at similar times in history simply because the right influences line up at the right times. Also, this:""Any copyright holder who attacks true fan material is a moron. "
          *sputter*. Got your broadbrush out? All or nothing? Aren't you thinking hard!" indicates you're clueless about fans and creativity, any copyright holder who came down hard on fan material would quickly turn off their fan base and they would move on to something else to satisfy their needs, killing the goose that lays the golden eggs in a misguided attempt to get a couple extra.

           

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          Anonymous Coward, Aug 16th, 2012 @ 9:11am

          Re: Re: Re:

          I would point out that 'for profit' does not automatically negate fair use.

           

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      Ninja (profile), Aug 16th, 2012 @ 4:16am

      Re:

      However, when you add "on the internet"

      Stop. STOP. Just because your creative work reaches more ppl it doesn't change the fact that it is derivative (and nowadays crowdsourced). Please. STOP.

      the site or sites that choose to publish it may be of a commercial nature

      Yes, they earn their money from the service they provide that attracts people and eyeballs for their advertisers, not from the fan fiction and much less from the original work. So your point again?

      Your intentions as an author can be usurped by the actual use of the work.

      This comment is so wrong that it's depressing. The original work is not altered. It's a derivative and completely different work. Disney made many of their stories based on Public Domain. It didn't change anything for the original stories, they are there available. If anything it made them more widespread and well known.

      Really, fan fiction is very high risk, with low return.

      Actually the return is unfathomable. And it is NOT expressed as a monetary value. And that's where you fail, you believe that ppl only do things for money.

      I understand why people do it, but it's a pretty hard thing to justify in simple terms.

      No you don't understand. Because it's not hard to justify doing a fan fiction. If you find it hard to justify then you simply don't understand. Hint: one creates fan fictions because he loves the original work. Simple as that.

       

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        Ninja (profile), Aug 16th, 2012 @ 4:18am

        Re: Re:

        God, where the hell did I take the word unfathomable from?

         

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          Wally (profile), Aug 16th, 2012 @ 7:42am

          Re: Re: Re:

          Ninja, you get ten points for the use of the word "unfathomable". :-)

           

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          ltlw0lf (profile), Aug 16th, 2012 @ 7:53am

          Re: Re: Re:

          God, where the hell did I take the word unfathomable from?

          It worked. I think you said it quite well. As someone who has, on occasion, written fan fiction (and been beaten for it,) I agree with your statement.

          I have no interest in making money off my work, that is what I have a job for, and thus it was written solely to add more to what the original author had left out of their story. It gave an alternative picture to what they wrote, and it furthered their story which they could no longer do themselves because they have been dead for 70+ years.

          What bothers me most is the authors, lawyers, and commenters here that say "just go off and write something original." What if there is more to the story than the original author decided to write? What if there is a different way of looking at the story (The Wind Done Gone)? This AC has gone loopy thinking that only original works are creative...I've seen fan fiction that is far more creative than the original material.

          It isn't about the money for most of these folks, and often it isn't about the fame either (which is why quite a few of them do it anonymously.) It is about sharing -- furthering the story -- and keeping a good story from dying. And in some cases, like my favorite fan-fiction of all time, the Barney fan-fiction, it is an extremely creative (and violent) parody of the original material (Barney the Purple Dinosaur who attempts to take over the world...)

           

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      John Fenderson (profile), Aug 16th, 2012 @ 11:27am

      Re:

      Just a couple of nitpicky things.

      Fan fiction in and of itself is never an issue, provided it's for personal consumption (ie, you give it to a couple of your friends for a laugh).


      Copyright violation hinges on distribution. As soon as you give it to even a single friend, it opens the possibility.

      Specifically, while your intention may have been non-commercial, the site or sites that choose to publish it may be of a commercial nature, or the use of your work may be of a commercial nature.


      Whether or not it's for commercial purposes is not a major factor in determining if it's fair use.

       

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      Lisa, Aug 19th, 2012 @ 5:19am

      Re:

      If YOU aren't making the money, the site it, YOU are not profiting commercially, so this argument doesn't fly. Of course, it's about the copyright holder being ok with it. And 90% are. That number is increasing with major studios like Warner Bros now actively encouraging this kind of fan engagement. In Canada, the fair dealing exception in the copyright statute has a user-generated content exception - so NO risk.

       

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    Seegras (profile), Aug 16th, 2012 @ 3:11am

    Copyright

    I can't find anything in copyright which deals with fan fiction. It's an original work. It's only set in front of a background another author wrote, but the background consists of "ideas", and these aren't copyrightable. Anyone who wants to assert any "copyright violation" to fan fiction obviously does this out of a gut-feeling, and not with any basis in law.

    Fan fiction might of course violate trademarks. But that's a totally different thing.

     

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      aethercowboy (profile), Aug 16th, 2012 @ 6:06am

      Re: Copyright

      I know! It seems to me that "character copyrights" seem more like a fictional character's "publicity rights" than they do actual copyright issues?

       

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      Anonymous Coward, Aug 16th, 2012 @ 6:07am

      Re: Copyright

      Mostly agree to this. Depends on whether it's 'good' or 'bad' fan-fic though.

      Having a spouse whose written numerous Dragon Age fanfics (an RP video game for those unfamiliar), I've seen first-hand the time, effort and imagination to insert original content, including actions, personality expansion for existing characters, and dialogue for those bits that aren't shown within the core material.

      I've also read 'bad' fanfic though that basically rehashes each scene within the game.

      The former totally is original work with some TM violations, but the later is a more compelling case of copyright violation. Granted both was on fanfic.net and not offered as a commerical venture.

       

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      John Fenderson (profile), Aug 16th, 2012 @ 11:35am

      Re: Copyright

      It's only set in front of a background another author wrote, but the background consists of "ideas", and these aren't copyrightable.


      This is one of the areas where the boundaries of copyright has been expanded beyond reason. It's not in the law, but there have been at least a couple of infringement suits that successfully asserted copyright on settings & characters.

       

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    Ninja (profile), Aug 16th, 2012 @ 3:51am

    Mike, this just begs for one of your best articles (in my opinion): https://www.techdirt.com/articles/20120727/14251019859/dear-permission-culture-this-is-why-no-one-wa nts-to-ask-your-ok.shtml

    It should be very simple: if it's not used for commercial purposes (ie: it's not directly sold) then it's exempt from copyright.

     

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    Wally (profile), Aug 16th, 2012 @ 5:52am

    Fan Fiction

    I can honestly say that in spite of all the copyright trolls out there, it's extrememly bad business to go after fan fiction. It is practically free advertising. A good citation I can give is Phineas and Ferb. Some of the most awesome fan fiction pertaining to the series comes from that show.

    Funny thing is, it's never the executives or the artists that complain. Cartoonist Gary Larson once did a cartoon about Jane Goodall where a female chimp referred to her as a chimp. She ended up firing the lawyer that sued her without consent.

    Then you have your toy companies. My Little Pony: Friendship is Magic. More fan fiction. The CEO of Hasbro herself was advised by lawyers against the fan art.

    I saw a pattern here that may be prelude to a conspiracy theory I made up, but here goes.

    Is it just me? Or are most of the major issues the company executives themselves, or is it all just copyright lawyers seeking opportunity to take advantage of a bad economy spreading FUD?
    Think about this for a moment. This idea can be spread to the RIAA and MPAA who both are essentially entities mainly consisting of lawyers and former law makers running a bad businsess model.

    Fan fiction is never touched I think because it puts the lawyers at risk against the fans. Gary Larson's story is one of the first to come to mind with his Jane Goodall cartoon.

    Lawyers making decisions rather than allowing artists and CEO's to connect to fans are overstepping their bounds.

     

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      Wally (profile), Aug 16th, 2012 @ 5:59am

      Re: Fan Fiction

      Correction, saw my bit of error:

      *She ended up firing the lawyer that tried to sue him.

       

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      identicon
      Transbot9, Aug 16th, 2012 @ 8:46am

      Re: Fan Fiction

      The only creators I've seen go after fanfiction are authors, but for some authors the work is more personal than other creators.

      Lawyers, like everyone else, like to justify their paychecks.

       

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    identicon
    Anonymous Coward, Aug 16th, 2012 @ 6:14am

    Immediate response

    "Professor Tushnet's Super Fuzzy Boundaries" would be an excellent title for a piece of fanfic.

     

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    Anonymous Coward, Aug 16th, 2012 @ 8:40am

    The fans who write fanfiction, make fan videos, etc....are usually the biggest fans of the original work. They're the fans that are often most loyal, and the fans who often spend the most money. And those fans are often what keeps your work alive during "down" times, and once it's completed and not being added to. To attack fan material is to attack those fans.

    I've loved fan fiction since I was a little girl and I've grown up reading it in various fandoms of movies, shows, etc...that I've loved. I've also spent scary amounts of money on official product at the same time.

    I love conventions, I love fandom. I love being able to share that love with other fans on the internet. It's an example of one of the best things about the internet: the way you can connect to other fans and share your love of something.

    Fan fiction is not about money or profitting from a creator's work. It's not about being "unoriginal". It's about loving the material so much and wanting to share in that sandbox with other fans. It's fun and adds to the fandom experience. Start taking that stuff away, and I have less reason to want to stay on the beach.

    I would love to write an original novel myself. And if I were ever lucky enough, I would embrace fan fiction of my work wholeheartedly.

    And I'll never buy into the idea that because we suddenly have the the internet, we shouldn't do things we've done for years, like share fan work like fan fiction (which used to exist in printed "zines") or that it's "wrong".

    Creators: I'm not making a dime off my fan material. But take away my ability to make it and enjoy it, and I'm a lot less likely to spend another dime on the official stuff out of disgust. I don't like being penalized or criminalized for being one of your biggest fans.

     

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      Nathan Gibson (profile), Aug 16th, 2012 @ 8:49am

      Re: One concern

      Wow, a link tag somehow got my comment borked (that I should have been signed in for).

      Basically, it would have been nice if the article went into a bit more detail about the Derivative Works clause of US copyright law and how it affects fan works.

       

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    Luna, Aug 17th, 2012 @ 6:39am

    Tell all of this to Fanfiction.net, which covers just about every popular book and movie out there today with it's library. Hell, the sections based off of Marvel films are HUGE (something like 12k for X-Men and 14k for Avengers). I doubt that Marvel HASN'T gotten wind of the site, and if it has; hasn't felt bothered enough to do anything about it.

    I just think some folks need to pull that giant stick out of their ass, but that's just me...

     

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    identicon
    Anonymous Coward, Aug 21st, 2012 @ 12:23pm

    Considering how many creators are allowing for fanfiction it looks like our time is coming.

     

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