|Brain Thief . Licensed from Stock Unlimited.|
Before I elaborate on the legal stuff, let me add this disclaimer: I am not a lawyer. I am not licensed to provide legal counsel to anyone. But I do know copyright and fair use, because it's an integral part of what I do for a living (I make things, yay!). That, and the U.S. Copyright Office website is very clear on defining these terms, so I have no problem discussing them and linking to the source material throughout this post.
Here are the icky truths that people don't always want to hear, especially when it comes to fanworks:
- Without permission directly granted from the original copyright owner, any creation of derivative works is illegal.
- Copyright violators do not determine if their work falls under the protection of Fair Use; that decision is made through arbitration.
- Fair Use is not a right. Fair Use is a defense argument used in legal proceedings, and is a circumstantial provision that does not guarantee protection for those who violate copyright law.
- Attribution isn't a protection from copyright violation, but you still need to do it anyway.
- Including disclaimers with derivative works ("All rights belong to their prospective owners" / "These characters don't belong to me" / "Work is protected under Fair Use") is not a protection from copyright violation. If you're going to bother including a disclaimer, you still need to properly attribute the author, copyright holder, and trademark owner.
And probably the biggest one that puts people into defense-mode:
Taking something that isn't yours, without permission, is stealing.
The specific erroneous statement that pushed me to write this post was a pro blogger's claim that fanfiction is "a transformative work protected under copyright law."
Well...there are two ways to interpret that statement:
- Transformation of an original work doesn't violate copyright.
- The transformation itself (the new work) is protected under copyright law.
#2 is correct.
Fanworks--fanfiction, fan art, fan films--are derivatives of an original work. They "transform" the original work by taking major pieces from it (characters, plot, etc.) and placing those original components in new scenarios with new depictions. Without permission from the original copyright holder to build upon, transmit, copy, and transform a preexisting work, derivatives are illegal.
Why are they illegal? Because, as Title 17 of the US Code explains, rights to a created work are exclusive to the creator. It's a Constitutional Provision meant to protect authors and their work, but is also meant to "promote the progress of science and the useful arts" by limiting the exclusivity of the work--meaning, eventually, creations will belong to everyone (Source). Until that time passes, you cannot take what isn't yours, no matter how well-intentioned you may be.
It is very important to emphasize that copyright does not protect ideas, but instead, how ideas are rendered.
|Source; original artist unknown.|
Teachable moment: I am violating copyright law by using this image without permission. I am using it in the hopes that it will be considered legal under the Fair Use provision in US copyright law. However, it's still stealing, so I must be prepared to remove the image if asked; and accept the consequences for publishing it without the copyright owner's permission.
The Star Wars vs. Harry Potter infographic is effective because it illustrates that these works share ideas but their creators render them very, very differently. J. K. Rowling decided to write a fantasy set in a parallel, magical world that exists along with our own, set in the UK in the relative present. George Lucas decided to write a space opera set "long ago in a galaxy far far away." Concepts may overlap, but the key elements of the narrative--characters, dialogue, voice, etc.--are original, wholly belonging to their respective creators.
In other words, ideas are intangibles that belong to and are shared by everyone, but their specific, unique expressions, once physically rendered, belong to the individual creator. In the US (and many other countries worldwide), that uniquely rendered piece is automatically protected under copyright law. What is one man's hobby is another one's livelihood, and copyright law is designed to protect both.
|Source. Original artist unknown.|
Once upon a time, fanfiction author Snow Queen's Ice Dragon took Twilight's lead characters Bella and Edward, as created by author Stephenie Meyer, and wrote them into a new story called "Master of the Universe." She, like thousands of other readers, wanted more from Bella and Edward's relationship--Twilight was marketed to teenagers, and adult readers wanted to see something that reflected adult interests and situations. "Master of the Universe" was a fanfic that included Bella and Edward in a BDSM, sexual relationship--an R-rated Twilight readers were looking for.
Snow Queen's Ice Dragon broke the law when she wrote "Master of the Universe," because she did not invent, and did not own, the characters of Bella and Edward--Stephenie Meyer did. The only way Snow Queen's Ice Dragon fanfic would be legal is if she contacted author Stephenie Meyer directly to get permission to publish "Master of the Universe" (yes, posting online means you are, in fact, publishing your work).
She published it anyway. And it was so popular that it she later decided to commercially self-publish it as an ebook, and after making a good deal of money from that, made a deal with Random House and made a hell of a lot more money. "Master of the Universe" is now known as "Fifty Shades of Grey" and Snow Queen's Ice Dragon is now known as E. L. James. And she's a bazillionaire, because she gave her fans exactly they wanted.
But there was still a huge outcry from the public about the situation, saying that the similarities warranted legal action. My basic understanding is that Random House and E. L. James scrubbed "Master of the Universe" of all of its Twilight references, but kept everything else. Why? Because "everything else" legally belongs to E. L. James--it's her unique rendition of overlapping ideas.
Random House asserts that "[...] the 50 Shades series is wholly original fiction and that the author has warranted it [a]s original fiction, deviating substantially from the original fan fiction known as Master of the Universe" (Source). The internet disagrees with Random House's claim and there's some pretty interesting line-by-line comparisons showing that not a lot was changed between "Master" and "50 Shades"...but legally, does it matter?
- E. L. James's "Fifty Shades of Grey" does not contain Stephenie Meyer's plot, characters, and original prose--it is a work unique to E.L. James.
- Stephenie Meyer recognized that "Fifty Shades" was completely different than her own (source). Her acquiescence demonstrates that she does not see a copyright or legal issue with the publication of "Fifty Shades."
- "Master of the Universe," which did violate copyright, was taken down and is unavailable to readers except for the small snippets in blog posts where people are making comparisons between that and "Fifty Shades." Essentially, "Master of the Universe" no longer exists, and Stephenie Meyer chose not to take legal action against E. L. James for "Master" or "50 Shades."
Basically, the copyright violations were removed, and most importantly, the original author doesn't care about the copyright violation anyway, so that's that.
Why are you writing this? Are you against fanfiction or something?
Nope. I love fanfiction. I wrote Harry Potter parodies and fanfiction starting as early as 1999, before the internet made fandoms and fanworks a tangible thing. I tend to do fanart more than anything else, but I recently wrote fanfic for Darker than Black that I hope to post online at some point, and some dirty fanfic for Dramatical Murder that may never see the light of day because I can't believe my brain could pump something like that out.
Fanfiction is amazing because it allows you to be experimental in safe parameters, and indeed write things you never thought your brain could pump out. Fanfiction is a great way to learn to write, and a great way to learn about directly connecting to an audience and fulfilling their needs, which is key if you want to break out into commercial fiction. Fanfiction communities can provide great support and direct feedback. And above all else, fanfiction is incredibly fun...
Which is why you shouldn't stop writing fanfic, or making fan art, or shooting fan films and making parodies.
You just need to be aware that there is a risk when you publish this stuff, and it's simply this: if the copyright owner makes a claim against your work, you must submit to the demands of the copyright holder.
That means if the author tells you to take something down, you take it down and you leave it down. It also means that if the author seeks litigation, you must recognize that they have the right to do so (and that's when you can hope your lawyer will use the Fair Use defense).
Many authors and artists are just fine with fanworks. They see fans as invaluable, and sometimes even as family; they also recognize the perks of fanfic and fanarts--free publicity, a built-in, dedicated audience, and (depending on their attitude), a source for valid criticism and mutual inspiration.
There are others who are vehemently against fanfiction (George R. R. Martin and Anne Rice, for example) and they have every right, legal and personal, to discourage it (while fans are important, authors don't "owe" them). There may be authors who don't have a problem with fanfiction, but their publishers, agents, or licensees do, so the author professionally sides with them (Ursula Le Guin is an example). And there are some authors who admit they don't quite understand fanfiction, so they stay neutral or avoid it altogether (like Juliet Marillier).
If you're not sure about an author's personal stance on fanworks, you can usually find out their policy or opinion directly on their websites. Another great resource is fanlore.org's vast compilation of Professional Author Fanfic Policies, which continues to grow as more information is made available. I highly recommend checking it out!
Don't be afraid of making fanworks. Fanworks are amazing!
Just be informed, and make decisions that mitigate potential consequences of copyright violation:
- Try to get permission from the copyright holder if you want to publish a derivative work. If you don't know where to start, read this article. It's not as difficult as you may think to contact the owner for permissions, and I'm speaking from experience.
- Know the author or artist's policies on fanworks--if they're against it, then you probably shouldn't publish.
- Authors and artists who are against fanworks are not bad people. One of the arguments I read from a particularly frothy Anne Rice complaint is that she had no right to go after fans, and that she should be appreciative that fanfiction of her work even exists. Nope. Authors don't owe you accolades or adoration because you "borrowed" something they labored over. If they are "unappreciative" of your appropriation, you don't fire back with a "you should be grateful!" argument. Nope nope nope.
- Publish in safe communities, where fanworks are promoted and encouraged (fanfiction.net, deviantArt, Wattpad, etc).
- Don't sell fanworks! If you charge for anything that is derivative or transformative, this will hurt the Fair Use defense if legal action is taken against you. Plus, profiting off of others' work without permission is just a dick thing to do. Although many fanartists sell derivative work (posters, tee shirts, etc.), they might've gotten the licensing to do so. And if they didn't, just because it seems like they're getting away with it doesn't necessarily mean it'll go that way for you, too. There will always be a risk if you sell derivative works without permission; if you want to play it safe, stay not-for-profit.
- Always provide proper attribution when you use things that aren't yours, and if you're going to do a disclaimer, you need to be very clear--writing "I don't own this" is a WELL, DUH. Something like, "This is a non-commercial work of fanfiction. The characters of Draco Malfoy and Luna Lovegood are the sole invention and property of author J. K. Rowling" is a lot more effective than "Rights belong to their prospective owners," which is a weak, deliberately vague statement. Attribution and disclaimers do not negate copyright violation, but they are a factor in determining the Fair Use defense (which again, is decided in the courts, and not by you). Attribution and disclaimers also provide credit where credit is due, which is the proper way to go about acknowledging work that isn't yours.
- Comply with all requests and don't get defensive about it. Again, if you didn't get permission to take it, you stole it. The original owner has the right to send a cease-and-desist or DCMA takedown notice, and you must comply with their request. If they choose to take legal action against you, they are in their right to do so. I personally never hear of litigation happening unless the infringement harms the original owner's livelihood in some way (hurting their business, theft of profits, etc.), so usually, it's a request for deletion and nothing beyond that (in other words, don't panic!).
- If you want to make money off of fanworks, check out places like Kindle Worlds, which has several franchises available for fanfic writers to legally publish their works for profit. You can also check out works in the public domain, or search Creative Commons for licenses that allow derivative works for commercial purposes.
Holy cats, this was a long one. I hope you found it helpful, and if you have any questions about Copyright and Fair Use, don't be afraid to consult the US Copyright Office website, which explains both in detail. The Stanford Law Libraries site for Copyright and Fair Use is another excellent source for more information.
Shameless advertisement: If you like what you've read in this article, check out my Convention appearances on the Works section of the site--I cover this and more in my panel Fanfic into Fiction. I'll be at Matsuricon in August. Stop and say hello!