Quote:
Originally Posted by pwalker8
Fair Use was originally a judge created exception to copyright that was later written into the law. As far as I know, the idea that fanfic would fall under fair use has never gone to court, and I suspect is on fairly shaky legal ground.
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I'm not any kind of legal expert, so I've no idea whether fanfic actually counts as fair use. But since we're discussing not only copyright as it is, but as we think it should be: I think fanfic
should be legal, at least as long as it fulfils
the criteria listed by OTW.
Quote:
Originally Posted by pwalker8
I think that where fanfic runs into philosophical problems is the idea of indirect profits, i.e. you have a website devoted to Buffy the Vampire Slayer fanfic. You don't charge people to read the stories, but you do have advertisement on your website.
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I'm pretty sure this is more of a philosophical question than a real issue. I doubt there's that much money in advertising, especially as long as there's a huge, well run, completely free and non-commercial place for fanfiction at Archive of Our Own.
Quote:
Originally Posted by Alanon
A thing to note, however, is that the premise of indirect profits cuts both ways. Fan fiction might make the original work more popular, and as a consequence, more profitable, yet no one seems particularly interested in having a discussion on compensating those folks? No one has put forth any justification for having hordes of people that popularise original work for free, that's somehow become a given.
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In my opinion, that doesn't work as either legal or moral defense of fanfic. After all, the same argument is used to defend piracy, and the same counterargument applies: It's up to a creator to decide how they want to do PR. More generally: You (generic "you") shouldn't do someone an unasked and possibly unwanted favour, and then act as if they owe you something in return, beyond (at most) a polite "thanks".
Also, if this argument was the basis of the legality of fanfic, a creator could remove that legality if they didn't want the PR. To take one example: After the lengths Marvel went to to straight-wash Captain America and Bucky Barnes, I strongly doubt they are very happy about the existence of more than 46 000 fanfics about the romantic relationship between those two, ranging from devoted husbands to tentacle porn.
Quote:
Originally Posted by Alanon
Harry Potter, on the other hand, might not have turned into a wildly successful film franchise without a dedicated fan fiction community spreading the word. And yet one word from Rowling could end it all.
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Since the legality is unsettled, we can't be sure that a word from her could do that, legally. And it would be a huge risk for her to do so, potentially leading to lots of negative publicity. A small fanfic site or a commercial one might well choose to comply to avoid hassle. But Archive of Our Own would put up a fight, both legally and in the court of public opinion.
Quote:
Originally Posted by Alanon
It's an interesting paradox - great fan fiction authors might do the work of entire PR teams, completely free of charge, and still be constantly at risk from litigation, and suffer the snobbery of internet trolls telling them their work is not original and is somehow near-worthless. I suppose if impartiality is too much to ask from our culture, we might at least hold some hope for impartiality in resentment.
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Archive of Our Own and Organization for Transformative Works have done a lot change to this, both with regard to the vulnerability and the snobbery, especially with their recent Hugo award:
https://www.vox.com/2019/4/11/182924...t-related-work