Discussion Is Fan Fiction Legal?

Discussion in 'Non Star Wars Fan Fiction' started by LAJ_FETT, Jul 20, 2008.

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  1. LAJ_FETT Tech Admin and Collecting/Games Mod

    Administrator
    Member Since:
    May 25, 2002
    star 8
    Literary Review of Canada Essay

    Grace Westcott a practicing copyright lawyer, Vice Chair of the Canadian Copyright Institute, and a fan of fiction, takes a look at the legality of fan fiction.

  2. JadeSolo Manager Emeritus

    Member Since:
    Sep 20, 2002
    star 6
    I think I just found my calling in life:

    "I will make it legal..." (you knew that was coming)


    Here's a question: professional authors don't read fanfic because they don't want to be accused of stealing ideas. But if they were that worried, then wouldn't they have to be just as careful whenever they do book signings? Don't fans like to talk to authors about cool ideas for the author's characters, or even their own fanfic?

    Plus, if you're writing, say, HP fanfic, technically you're already infringing Rowling's copyright. So even if Rowling stole your idea for a prequel, what can you say? "You should've paid me for that idea" doesn't work because you don't get to make money off them in the first place unless she gives you a license (from what I understand of copyrights).

    But then, I'd be happy with a line in the Acknowledgments or a dedication. I think that's cooler than money. :p
  3. 1Yodimus_Prime Jedi Master

    Member Since:
    Mar 13, 2004
    star 4
    Eh, you can cover someone else's song in a live performance and you don't have to ask permission. I don't see the difference. Hell, the singer would even technically be getting paid to do that. We're doing this without any interest in monetizing a single aspect of our output. Things that are done for free shouldn't ever fall under copyright jurisdiction. That they can is frankly a joke.

    Hell, half the fantasy writers out there got their start in fanfiction...they'll just never admit it. :p The literary world, on the subject of fanfiction, is like that scene in "The Life Of Brian" where an adultress is about to be stoned to death by a suspicious-looking crowd, and the Roman Guard stops them and goes, "Hold on, is anyone here a woman? It's illegal for a woman to participate in stonings" to which the crowd shouts "noo." He then lets them go at it. The crowd, of course, is entirely composed of crossdressed women.

    I noticed in that article that she seems to imply a lot of things as originating in fanfiction which I wouldn't have guessed. Did the drabble not exist prior to fanfiction? It sounded like it. Also, she falls prey to the common Fallacy of Visibility, as in - just because these things can now be viewed by everyone does not necessarily mean there was a 'marked increase with the advent of the internet'. People take these things as a given without ever checking to see if they're true. *grumblegrumble*
  4. Thrawn McEwok Co-Author: Essential Guide to Warfare

    VIP
    Member Since:
    May 9, 2000
    star 6
    Technically, any drabble is a Monty Python fanfic. :p

    - The Imperial Ewok
  5. Dev_Binks Jedi Grand Master

    Member Since:
    Aug 7, 2003
    star 6
    Fan fiction is legal unless the originator of the work directly says not to. You can't arrest people for using characters or ideas if they're claiming then for their own or selling them. That's where it changes. When you write a paper for a class you have to include parenthetical citations whenever you quote or reference a work. Fan fiction is the same way. Except you're just using it for fun. Plus if the originator of the work is smart they'll realize it'll just increase their popularity. :p

    Oh and if she's saying it's a lot more now than before the internet that's just stupid because what little kid doesn't play around as if he were a character from a TV show or movie and make up his own story? It's not written down but it's still using the other person's characters or ideas.
  6. LLL Force Ghost

    Member Since:
    Jul 16, 2000
    star 4
    Has anybody gone to the website of the Organization for Transformative Works?

    OMG, it

    is

    awesome.

    Everybody should join for $10 and help these folks out.
  7. LLL Force Ghost

    Member Since:
    Jul 16, 2000
    star 4
  8. inkpenavenger Jedi Knight

    Member Since:
    Sep 26, 2005
    star 1
    OH MY GOD! Am I ever tired of the "is fan(insert activity) legal?" threads! Here it is folks:

    FanFiction, FanFilms, FanArt, FanGames, FanCostumes, FanProps, FanWhatevers are completely and entirely ILLEGAL.

    The survival of these forms of expression and entertainment is totally based on the fact that the owners of the intellectual property we infringe on choose to look the other way. If they chose not to, websites like these would be have to be shut down or face legal action.
  9. Lord Vivec Chosen One

    Member Since:
    Apr 17, 2006
    star 7
    No.

    As long as it's not commerical, you can write/type about any character from any work of fiction.
  10. ophelia Cards Against Humanity Host. Ex-Mod

    Game Host
    Member Since:
    Jun 25, 2002
    star 6
    Hi, Vivec!! Welcome to The Place Where Andalite-Bandit Dares Not Look! :p

    And this is my understanding of the legal status of fan fiction. Jade's the lawyer--she can correct anything stupid that I say. :p

    In the U.S., there are two types of law to worry about when you think about fan fiction. Trademark law, and copyright law.

    Important franchise names and words are trademarked. Those are things like "Indiana Jones," "Batmobile," and "Jedi." Trademark law is pretty clear-cut, and companies have a stake in protecting their trademarks. Trademarks can be eroded into generic names if their use becomes common enough. (Before there were band-aids, there were Band-Aids). So if you write about a character named Indiana Jones, even if he's a 93-year-old rug salesman in Queens who's never been on an adventure in his life, you're still infringing upon Paramount's trademark, and it may come after you.

    But is using trademarked names the defining feature of fan fiction? No . . . unless you want to give a free pass to all OC stories, and create space in your fanfic archives for stories about 93-year-old rug salesmen in Queens who have never been on an adventure in their lives, but who happen to be named "Indiana Jones."

    Since trademarks alone don't put all of fan fiction squarely in our cross-hairs, let's look at copyright law.

    Copyright law is much more complicated than trademark law, and the gray areas in it are generally filled in with court case precedents. These may conflict. Even if we're strictly talking about federal copyright laws, it is possible for a federal appellate court in California to rule one way on a particular issue, while one in New York rules the opposite way. Where that leaves the "real" law is anybody's guess.

    To simplify a complicated situation, we can just say that yes, if you copy a certain type of idea or percentage of ideas out of someone else's work, they can win a copyright suit against you. But what is the exact type or percentage of material you can copy?

    Nobody knows.

    Stories labeled "fan fiction" run the gamut from almost 100% original to near-exact rewrites of already-published material. Therefore, some of them would probably be declared copyright violations, and some would not. Can the same be said about profic? Yes.

    The courts do not actually make distinctions between the two. There aren't "fanfic cases" and "profic cases"--only copyright or trademark cases. The lawyers will circle faster if money is involved, but really there are just stories, which are equal before the law.

    It's fair to say that more fanfic stories would be found in violation of trademark or copyright laws if every single story--pro and fanfic--were taken to every court in the country, and the results were averaged together.

    But does that mean that "all fanfic is illegal?" No. Does it mean "all fanfic is legal?" No.

    Is the question in the title of this thread answerable?

    Not really. :p
  11. Lord Vivec Chosen One

    Member Since:
    Apr 17, 2006
    star 7
    lol


    I written many stories on many different fandoms. They're written on paper. I doubt anybody is going to come and shoot me for it. :p
  12. ophelia Cards Against Humanity Host. Ex-Mod

    Game Host
    Member Since:
    Jun 25, 2002
    star 6
    I WILL DO THIS THING. [face_skull]
  13. JadeSolo Manager Emeritus

    Member Since:
    Sep 20, 2002
    star 6
    f you write about a character named Indiana Jones, even if he's a 93-year-old rug salesman in Queens who's never been on an adventure in his life

    Please write this. Please!!

    I ain't a lawyer yet - I just talk like one to confuse people and make them agree with me. :p Anyone who is actually licensed by a state bar, please tell me if I'm wrong about this stuff, because I would hate to look like even more of a moron than usual. But as I understand it, fanfics and profics are all "derivative works" - all stuff based on an original copyrighted work. Whoever holds the copyright to the original work has the sole right to create derivative works, unless that right has been transferred to someone else. So, George Lucas created Star Wars and gave Del Rey and Dark Horse Comics the right to create derivative works. Actually, I think Lucasfilm gave away the right, and that technically it's a license, not a full-blown right, but the point is that officially and legally, DH and DR get to make derivative works.

    The money isn't really the issue. Under the Copyright Act, you don't have a right to be paid for your artistic product. You do have the right to use, reproduce, distribute, and make derivative works of your product.

    So my understanding is that yeah, at first glance, we're violating the Copyright Act, even though we make no money. But, some authors are really nice because they don't just turn a blind eye to fanfic. They go further and make express and implicit rules. Anne MacCaffrey, for example, has a list of rules. LFL goes after the really raunchy slash sites, implicitly telling us that most every other story type is okay.

    You could even argue that folks like Chris Carter and the exec producers of the Stargate TV shows have given fans an implied license to write fanfic - there's no way they don't know that X-Files and SG-1 fanfic exists. Fans ask fanfic-related questions at convention panels; even if it's only to the actors, I'd be surprised if word didn't get out tot he big whigs. And JK Rowling joked about the stories that would result when she announced Dumbledore was gay - maybe that counts.

    As for the OC-heavy stories...If you know while reading the story that it's supposed to be set in the HP universe, that might be an infringement. It could depend on exactly how you know you're reading an HP story - did you use particular words or locations? And how is "know" determined? There's a difference between an HP fan and Judge Joe Schmo; one of them will pick up on obscure references to the HP universe, and the other will not.

    Trademarks are a whole other arena that I know very little about. I think they're more about protecting consumers from confusion in the marketplace. You can't sell a story about Indiana Jones the rug salesman, unless you prove that people won't be misled into thinking it's a story about Indy the fedora-wearing professor because your Indy has acquired a secondary meaning separate from LFL's Indy (ha! good luck with that). But I think fanfic is okay under this theory, because it's not a commercial endeavor. Maybe LFL would start complaining if all Indy fanfic sucked so much that people associated that suckiness with the movies and assumed the movies were terrible, but only in a lala land where people read Indy fanfic before they ever see the Indy movies.

    Again, I could be totally wrong about this stuff - one class does not an expert make. But I can always fire up LexisNexis and consult the proper legal authorities. :p
  14. 1Yodimus_Prime Jedi Master

    Member Since:
    Mar 13, 2004
    star 4
    See, this is why we keep you around, Jade. :p
  15. The_Face Ex-Manager

    Member Since:
    Feb 22, 2003
    star 5
    This, and those photographs she has. [face_worried]
  16. Drabbi-Wan_Kenobi Jedi Master

    Member Since:
    Feb 7, 2005
    star 4
    There are photographs? I've heard the audio tapes, but I didn't know there were pictures.
  17. NYCitygurl NSWFF Manager

    Manager
    Member Since:
    Jul 20, 2002
    star 9
    I love reading the legal stuff, Jade :D

    In my opinion, it doesn't matter much because there's a different answer for every little situation. As long as the authors are okay with it, I lsupport it (obviously :p ).
  18. LLL Force Ghost

    Member Since:
    Jul 16, 2000
    star 4
    Doesn't help you get read in writing contests, though.

    Thanks for all the expert opinions, ladies.

    The sarcasm and anger above are not appreciated. Not everybody has read all the threads on this topic that some people have read.

    Inquiring minds want to know. If you're fed up, the topic is clearly labeled. You don't have to read it.
  19. inkpenavenger Jedi Knight

    Member Since:
    Sep 26, 2005
    star 1
    Hey, I apologize for the angry remark. It just gets frustrating sometimes, y'know?
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