Quote:
Originally Posted by HarryT
Financial gain is not a consideration in deciding whether or not a use infringes copyright. It can be a factor in awarding compensation, but not in determining whether or not the offence has taken place.
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The "purpose and character" of the use is one of the
four factors to be considered; "not for profit" leans toward fair use. "Effect of use on the market" is another factor--and "not for profit" means "isn't grabbing money that would otherwise be going to the source market."
Being free doesn't guarantee something is non-infringing, but a deliberate choice to keep the use of copyrighted material away from financial issues, makes it more likely to be fair use.
However, that's mere background dressing to the real claim: that fanfiction is not infringing because it's a transformative use. The deciding factors for that are:
- Has the material taken from the original work been transformed by adding new expression or meaning?
- Was value added to the original by creating new information, new aesthetics, new insights, and understandings?
Portraying a villain in the original as a sympathetic character adds new insights. Portraying a romance not obvious in the original can add new information or new meaning. Depicting the original relationship dynamics in a new genre setting adds new aesthetics. And so on.
Whether fanfiction is infringing should be judged by the same criteria as whether a review is infringing: does it quote too much without adding its own insights?