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Old 04-26-2011, 06:45 AM   #73
astrangerhere
Professor of Law
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Quote:
Originally Posted by crich70 View Post
How would that relate to things like fan fictions? I know that living authors sometimes ask people not to post fictions based on their canon writings (Ann Rice is an example if I recall) but could a descendant of a known author take someone to court for posting a fan fiction based on a PD book?
I know some book series for example (like L. Frank Baum's Oz books) were continued after the author's death by others (though they worked through the publisher) but say someone wrote a work using characters from a novel like Dracula for example. Could the author's heirs (if any still live) or a publisher do anything legally to stop such a book coming out? Either one available for free or for sale? I know it's not quite the same thing as an unpublished work by the author, but it would seem to me to be something similar in some ways.
Fanfiction in and of itself is a very odd animal. Alot of different things come into play when determining whether or not any fanfiction is legal, leaving aside the issue of heirs. But for things like Baum or Stoker, those works are no longer protected by copyright and therefore those characters are available for all to freely use (see the Sense and Sensibilty and Sea Monsters and other books like that for examples).

But lets take for example something that actually happened - in the 90s, Fox Broadcasting tried to stop the posting of X-Files related fanfiction. They were sending C&Ds on the basis of copyright. But because fanfic authors in no way make money off their fic, the attempt failed. But as a result, you always see a standard disclaimer on fanfic now ("the show is property of, etc etc").

As to an heirs rights to "publish" via posting that sort of work posthumously, it depends. If there were instructions about what should be done with all papers, documents etc., the courts would view drafts on a computer as documents. But as you cannot profit from fanfic, this really would not be likely to come up. Now if you found a draft of a great Dracula novel re-write and went shopping that around to publishers, you'd be in violation of a term in the will to destroy the papers. If you made a penny of of it, you'd likely find yourself in court and having to divide profits with heirs or fight for your ability to sell it at all.
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