"fan fiction "......

[Elfwreck]

Originally Posted by HarryT

It's not a "crime", but I'm afraid it very likely is a violation of copyright, like it or not. I'm sorry, but that's just the way the law is. When you buy a DVD, all you're buying is the physical object. You're not buying any rights to the story, and you just can't (outside a few "fair use" purposes, such as literary criticism or review) just go around publishing stories derived from it without the explicit permission of the rights holder.

It is my firm belief that the vast majority of fanfiction, including the kind I encourage my children to write, is not a violation of copyright. That it falls within the boundaries of fair use in the US. I believe it is mostly a form of criticism or review, and a good deal of it is parody. (I believe the fanfic that isn't transformative is obviously so--such as "taking a chapter of Harry Potter and replacing the character names with my friends.")

I'm aware that the UK and other countries have different boundaries for derived works, and I am glad to live in a country that considers parodies and transformative uses fair.

I happily encourage my children to write and publish their fanfic online. In addition to believing that's both legal and ethical, I reject the notion that people should not be sharing stories about their favorite cultural icons, or that the ethics of "I made up a story about Zeus" are any different from "I made up a story about Batman." If those are two categories, it's very unclear which includes "I made up a story about Thor."

[HarryT]

Originally Posted by Elfwreck

It is my firm belief that the vast majority of fanfiction, including the kind I encourage my children to write, is not a violation of copyright. That it falls within the boundaries of fair use in the US. I believe it is mostly a form of criticism or review, and a good deal of it is parody.

I think it's true to say that the majority of people disagree with your interpretation of the law.

[QuantumIguana]

Originally Posted by fjtorres

Not really.
STAR TREK novels come from dozens of different writers and some have been released as free promos. (To say nothing of being pirated all over.)

With the wide variety of casts, eras, settings and the reboot, to say nothing of the convouted canon, it is one of the easiest mythologies to slip in a fake.

No reasonable person could confuse a Star Trek fanfic with a official Star Trek book. They simply don't look like the same. Fanfic are just text files, without covers. An official Star Trek book would be in a format like mobi or e-pub, and would have a cover.

That and the disclaimers usually found in fanfic would alert the reader. Plus, getting it from a fan fiction website would alert the reader that it is fanfic.

Yes, you could create a book that looked like an official Star Trek book, but that is a red herring. Such a book wouldn't be a fanfic.

Both are popular with younger readers who will grab everything they can find and would find the fanfic a substitute for the commercial product.

Don't forget the second part: "substitute for".

Fanfic doesn't substitute for the original, it supplements it. The person might exist who reads fanfic instead of the original material, but that's like finding a hen with teeth.

The Brito counterfeits, for one, weren't duplicates of his actual designs. They were actually originals done in his own personal style so even if not sold as "Brito originals" they they were sold as Brito-style and were found to devalue his brand.

Just because somebody doesn't intend to confuse doesn't mean it can't happen.

One difference was that these were sold, while fanfic isn't. And people do get knock off handbags as substitutes for the original designs, but they don't get fanfic as substitutes for the original material. And it is telling that no one seems to be able to come up with court cases that actually have anything to do with fanfic.

[citac]

Well said, Elfwreck, thank you. I've been trying to stay away from this thread since it's such a volatile topic for me, and I found some of the comments hurtful. I value my online community as much as I value my real life friends, and they were my pillar of strength when my mother was fighting cancer and then lost that battle.

I think it's important to have in mind that we are living in many different countries that treat this issue differently, and not all the solutions are the same, so that when we meet online, the laws one person lives by might not be valid for another person. I am firmly in the "fanfiction is transformative, therefore not violation of copyright". I have read numerous stories that asked serious questions and answered them - or tried to, in the form of a story containing characters the fandom was familiar with. They used those characters to tell their story because with preexisting characters, you already know what they are like, what their circumstances were like, what their reactions to an event will be, and you don't have to set up a character and spend time on its characterization if you only want to criticize or comment on an issue. To take Elfwreck's example of Thor, a fic may delve into whether or not Loki committed genocide against the Jotnar in the movie, whether the Aesir did, whether the Jotnar are monsters or misunderstood, what are the gender roles among the Jotnar: bi-gendered, monogendered, fluid? - all topics that were prompted and spawned lively discussions on some very important issues, and sometimes gave answers in the form of a narrative. To me, that's criticism.

Whenever someone starts talking about fanfiction as something that is hurtful for the original creators, I bring up this little gem: some 10 years ago, there was this western show called The Magnificent Seven; you may have watched the original western feature films or the even more original Japanese Seven Samurai. Michael Biehn, Ron Perlman, Eric Close and Laurie Holden were some of the actors. Anyway, the powers that be decided to shut it down after the first season, and the fans started a campaign to get it back.

And lo and behold, they were successful. The fans - who wrote fanfiction for the show, did fanart, filks, craft projects - spent thousands of dollars of their own money to enable the creators, cast and crew to work for an additional season. The woman who spearheaded the campaign was given a cameo in the first episode of the second season as a thank you, and the series composer gifted the fans with the score, which was shared between the fans. Look up the story sometime, and think about what that kind of devotion means.

[Elfwreck]

Originally Posted by HarryT

I think it's true to say that the majority of people disagree with your interpretation of the law.

It is irrelevant whether the majority of the public agrees with me--what matters is what IP attorneys think, and what judges believe.

The majority of IP attorneys who have any idea what fanfiction is, agree that it falls into a grey zone, and that each individual case would have to be judged separately. They all agree that there is no simple precedent case to point to that would help people decide.

The lack of a single lawsuit regarding not-for-profit fanfic is strong evidence that no lawyer has yet been convinced it can be successfully prosecuted. If it were clearly illegal according to those trained to interpret the law, I'd expect to see *someone* attempting to shut down unauthorized fanfic sites through courtroom activities.

There have been plenty of C&Ds... but those aren't evidence of legal transgression; they're evidence that some lawyer, who doesn't have to hear from the accused, has decided that a client probably isn't lying. C&D's aren't based on a full consideration of evidence; they're based on one side's interpretation.

This may eventually hit the courts, because AO3 has a legal committee with full awareness of the issues (or as full as possible), and they own their servers--an ISP can't shut them down for being too much trouble. And they host fanfic based on works by authors who believe they can forbid fanfic.

[bill_mchale]

Originally Posted by HarryT

I think it's true to say that the majority of people disagree with your interpretation of the law.

No... I think it is true to say that you disagree with his interpretation of the law and that there are others who would agree with you. However, I have seen no compelling evidence (either in this thread or outside it) that suggests whether most people would agree with you or not.

I also suspect that the law and fanfiction might fall in the same category as the law and speeding. Even if most people agree what the law is, and that the law is reasonable, they see no reason to enforce the law unless the person breaking the law is doing so in an excessive or dangerous way.

--
Bill

[HarryT]

Originally Posted by Elfwreck

The lack of a single lawsuit regarding not-for-profit fanfic is strong evidence that no lawyer has yet been convinced it can be successfully prosecuted. If it were clearly illegal according to those trained to interpret the law, I'd expect to see *someone* attempting to shut down unauthorized fanfic sites through courtroom activities.

Don't you remember when Paramount had a "purge" of Star Trek fan sites some years ago. Could they have succeeded in doing that if the sites were not breaking the law?

[QuantumIguana]

Originally Posted by HarryT

Don't you remember when Paramount had a "purge" of Star Trek fan sites some years ago. Could they have succeeded in doing that if the sites were not breaking the law?

If you have more lawyers and deeper pockets, you can do quite a lot without the other side breaking the law. In any case, cease and desist letters aren't a court case.

[HarryT]

Originally Posted by QuantumIguana

If you have more lawyers and deeper pockets, you can do quite a lot without the other side breaking the law. In any case, cease and desist letters aren't a court case.

But surely one site would have had the guts to say "we're not breaking the law - we're not shutting down" if they felt that they were not breaking the law? It seems remarkable that all these hundreds of sites, all of whom were (some seem to be claiming) doing no wrong, would spontaneously decide to shut down, merely because somebody asked them to, does it not?

[LucyLu]

My little contribution:

1. Legal Fictions: Copyright, Fan Fiction, and a New Common Law: http://www.tushnet.com/law/fanficarticle.html

2. The Messy World of Fan Art and Copyright: http://www.plagiarismtoday.com/2010/...and-copyright/

3. Know Your Rights: Copyright Law for the Creator of Fan Works: http://www.theodoramichaels.com/articles/fan-fic.php

4. Legal publications addressing various fanwork-related issues: http://fanlore.org/wiki/Legal_Analysis

[CWatkinsNash]

Originally Posted by HarryT

But surely one site would have had the guts to say "we're not breaking the law - we're not shutting down" if they felt that they were not breaking the law? It seems remarkable that all these hundreds of sites, all of whom were (some seem to be claiming) doing no wrong, would spontaneously decide to shut down, merely because somebody asked them to, does it not?

A fan site, run by fans, up against Paramount, owned by Viacom? And "merely because somebody asked them to" was likely more along the lines of "threatened to sue for more money than I can conceive of".

[QuantumIguana]

Originally Posted by HarryT

But surely one site would have had the guts to say "we're not breaking the law - we're not shutting down" if they felt that they were not breaking the law? It seems remarkable that all these hundreds of sites, all of whom were (some seem to be claiming) doing no wrong, would spontaneously decide to shut down, merely because somebody asked them to, does it not?

It's not remarkable at all. The owners of the websites couldn't possibly go head to head with Paramount; they don't have the money. Complying with a cease and desist letter is in no way, shape or form evidence of wrongdoing.

[HarryT]

Originally Posted by LucyLu

My little contribution:

1. Legal Fictions: Copyright, Fan Fiction, and a New Common Law: http://www.tushnet.com/law/fanficarticle.html

2. The Messy World of Fan Art and Copyright: http://www.plagiarismtoday.com/2010/...and-copyright/

3. Know Your Rights: Copyright Law for the Creator of Fan Works: http://www.theodoramichaels.com/articles/fan-fic.php

4. Legal publications addressing various fanwork-related issues: http://fanlore.org/wiki/Legal_Analysis

I've only read the third one of these links, but it's excellent. Thank you very much indeed for sharing your knowledge on the subject, which is obviously greater than that of most of us here (certainly mine).

[HarryT]

Originally Posted by QuantumIguana

It's not remarkable at all. The owners of the websites couldn't possibly go head to head with Paramount; they don't have the money. Complying with a cease and desist letter is in no way, shape or form evidence of wrongdoing.

I'm a little surprised that out of all these hundreds of completely innocent site owners, doing no wrong, and convinced that they were not breaking copyright law, one could not find a lawyer to take on Paramount pro bono. It makes lawyers look good to take on large corporations and win.

But, on the whole I tend towards the view that the sites knew damned well that they were breaking the law.

[HarryT]

Originally Posted by CWatkinsNash

A fan site, run by fans, up against Paramount, owned by Viacom? And "merely because somebody asked them to" was likely more along the lines of "threatened to sue for more money than I can conceive of".

MR quite routinely receives "cease and desist" letters from rights holders claiming that something is violating their rights. If you know that you're doing no wrong, you can tell the writer of such a letter where to stick it, and they can't do a thing about it.