Quote:
Originally Posted by HarryT
This position taken by this "organization" is pure nonsense. FanFiction involve the creation of "derivative works" and, as such, is a violation of copyright law if done without the copyright holder's permission. The overwhelming majority of FanFiction is not written for purposes of parady, which is permitted as fair use.
|
The difference between "transformative" and "derivative" is not a simple hard line, and is not legally defined anywhere. One cannot (accurately) say that fanfiction is, or is not, derivative and not transformative.
However, those who've read substantial amounts of fanfiction can make general statements about the majority of it--and among those people, those who are IP lawyers are split. Part of the purpose of the OTW is to publicize the fact that many copyright specialists who are aware of fanfiction believe most of it falls under US "fair use" exemption from copyright, much as a review or critique would. It's possible an individual fic would be infringing, just as a book review can be found to be infringing, without damaging the basic principle that this kind of commentary is legitimate.
A lot of fanfiction explores character aspects left open in canon; these fics can be understood as character study essays in story form. Some depict new adventures for the key characters; again, these can be viewed as pondering hypothetical situations in story rather than essay form. Some fic goes over the events of canon from a non-protagonist's POV--much like The Wind Done Gone. And some fics in all those categories could be parodies.
The legal definition of parody doesn't require humor or awareness of that definition. Most slash fanfiction falls well inside the bounds of "parody" established in other copyright cases. If the song "Big Hairy Woman" is a parody of "Pretty Woman," it seems very reasonable that "Kirk the Interstellar Slut" fanfiction is a parody of Star Trek, regardless of whether it's funny, and regardless of whether the author believed she was writing a "parody" at the time.
Quote:
|
Of course, most authors are only too pleased to have FanFiction written using their characters; it's a compliment of highest order than your readers enjoy your work so much that they want to read more.
|
Most authors are pleased to have fanfiction written if they like the tone of the fanfiction. Relatively few approve of the more transformative types of fanfiction--which are the most legally protected forms.
It's very likely the reason no fanfic has been taken to court for copyright infringement (AFIAK) is not just that "it wouldn't be worth the money," but that the fics that authors find most disturbing and offensive are also the ones most likely to be found legal--The Wind Done Gone case showed that exploring ideas the copyright owner finds repugnant, and therefor refuses to authorize, is solid grounds for a claim of "transformative" rather than "merely derivative."
Without the ability to claim market substitution & financial damages, the case against fanfiction is on very thin ground. Yes, it's using someone else's characters & settings without permission--but so's a detailed review, or an analytical term paper. Putting those details in story form instead of essay form doesn't make them more infringing. The actual copying involved is minimal, and used to comment on or create new insights into the original, just like a review or analysis.