[HarryT]

Originally Posted by Elfwreck

Why perform Shakespeare's plays rather than something new? Why do actors perform any play not written by the team that's performing it? Why does Disney make movies of classic fairy tales, instead of just movies about characters they created?

That is a completely different scenario. If you perform a Shakespeare play, you are doing just that - performing Shakespeare. You're not writing your own play using Shakespeare's characters (not that Shakespeare "made up" any of the stories for his plays, of course - they are all based on existing sources).

However, copyright law wasn't designed to be a stranglehold; other people have fair use rights to some of it immediately, and it's supposed to enter the public domain after a reasonable period of time. (That's a rant for another time.) Fair use includes the right to critique it, even very harshly, and the right to make parodies, and the right to transform it--for example, to make a lexicon or encyclopedia, even without permission from the copyright owner.

Certainly, I agree with you. But not that the right to create a lexicon or encylopedia only exists if you add a non-trivial amount of creative input yourself, as Mr. Ark recently found out.

I believe (and I'm supported by the legal advisors at transformativeworks.org) that fanfiction falls in the "fair use" category: that it's no more "theft" of someone's material than a detailed, considered review, one that discusses character motivations, alternate ending possibilities, and hidden symbolisms.

I honestly don't see how fan fiction can conceivably be considered "fair use" to be honest with you. It clearly (IMHO) falls into the category of a "derivative work" which is a breach of copyright unless you have the permission of the copyright holder. That's what Mr. Ark was successfully sued for doing - creating a derivative work.

I have looked at "transformativeworks.org" and it's full of "we believe"'s and other such expressions, but they appear unable to quote one single example where a court has backed their "beliefs". Perhaps you could direct me to such a court ruling if I'm mistaken?

Sorry, but I have very mixed feelings about fan fiction. I accept that it's written by genuine fans and that some publishers and authors probably welcome it as free publicity for them, and for keeping their fans happy, but I honestly do believe that its legal status is very, very dubious.