The copyright issues of fan fiction eBooks

[Elfwreck]

Originally Posted by HarryT

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).

Copyright law includes control over public performances of the work. If the key issue is "ethics" of use of someone else's work, not "legalities," esp. with personal creativity being an important aspect, then it's relevant to ask why it's reasonable to perform Shakespeare's plays, but not to enact a section of Harry Potter without the author's permission.

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.

You don't have to add anything, but you do at least have to re-arrange what's given. Mr. Ark was found to infringe, not on the 7 Harry Potter books, but on the two "reference books" Rowling had published--Quidditch Through The Ages and Fantastic Beasts and Where to Find Them. The Lexicon cribbed too much directly from those.

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?

The "we believes" are supported by several lawyers who specialize in copyright law. Until a case involving fanfic goes to court, that's all anyone can say.

There have been no court rulings pertaining to noncommercial fanworks and copyright; there are a number of possible reasons for this. (Starting with, "there's no money in it;" no matter what kind of ruling a publisher could get by squashing a fanfic, they couldn't actually get their court costs back; they'd just wind up with a bankrupt fanfic author.)

The most relevant ruling is:
Suntrust v. Houghton Mifflin, in which the book, "The Wind Done Gone" had an injunction on sales lifted on the grounds that the copyright complaint was not likely to succeed; a settlement was reached rather than a final ruling on copyright law.

From the ruling:
Included in the definition of fair use are "purposes such as criticism, comment, news reporting, teaching ..., scholarship, or research." § 107. The exceptions carved out for these purposes are at the heart of fair use's protection of the First Amendment, as they allow later authors to use a previous author's copyright to introduce new ideas or concepts to the public.
...
For purposes of our fair-use analysis, we will treat a work as a parody if its aim is to comment upon or criticize a prior work by appropriating elements of the original in creating a new artistic, as opposed to scholarly or journalistic, work.
...
While told from a different perspective, more critically, the story is transformed into a very different tale, albeit much more abbreviated.

And from the concurring opinion by Judge Marcus:
the issue of transformation cuts decisively in Houghton Mifflin's favor, in my view. Even a cursory comparison of the two texts reveals that The Wind Done Gone profoundly alters what it borrows--indeed, at times beyond recognition.
...
"market harm" cannot be established simply by a showing that the original's sales have suffered or may do so. Rather, the market harm factor requires proof that The Wind Done Gone has usurped demand for Gone With the Wind
...
The law grants copyright holders a powerful monopoly in their expressive works. It should not also afford them windfall damages for the publication of the sorts of works that they themselves would never publish, or worse, grant them a power of indirect censorship.

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.

Inasmuch as fanfiction is *commentary* on the original, it should be legally treated no different from a review, which also might borrow character names, descriptions, and plot elements. In a review, they are described; in a story, they are incorporated--in both cases, the reader is left with a new understanding of the original.

In cases where fanfiction is parody, the fair use status is obvious. Harry Potter getting it on with Draco? Obviously a parody, right? (As noted above, "parody" doesn't have to mean "funny.")

(I'll sort through my archives and look for other rulings; Campbell v. Acuff-Rose is relevant, and the recent YouTube Prince music drama, establishing fair use as a right, not just an affirmative defense.)

IANAL. I just like reading up on copyright issues.

[Kirok]

Originally Posted by HarryT

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).

LMAO! Old Bill would be a serial offender in the litigation courts if they'd had copyright in his day! ... and yes, I have actually considered writing a Star Trek appropriation of one of his plays!

Originally Posted by HarryT

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.

If that's the case I'm thinking of, that was pretty close to copying it and rearranging it - sort of like "Harry Potter Lego". Little, if any, Star Trek fan fiction slavishly copies the originals. If anything they challenge canon too much by taking familiar characters into outrageous territory!

Originally Posted by HarryT

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'll make no bones about it, CBS/Paramount have been an incredibly lenient studio (on the whole) when compared to, say, Disney

Originally Posted by HarryT

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?

Unfortunately, and I do not mean any disrespect to transformativeworks.org, I agree that they are taking a positive view when I need to consider the worst case scenarios. This is why I have based my ideas on the Stanford Center for Internet & Society webpage on copyright and Fanfic <http://www.chillingeffects.org/fanfic/faq.cgi#QID139> - although this is a little out of date, I see it as being more balanced towards the copyright & trademark owners so, if I prepare using then we should be covered.

Originally Posted by HarryT

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.

My stance, and the stance of TrekUnited, is that we support professional production - it's why we are Star Trek fans in the first place! However in the case of series that are no longer in production we support the fan's attempts to create a resonance of that quality of the original that they so admire in their fan productions.

We are not the enemy. We are the customer - or at least we would like to be! As head of publications and media I see my job as creating a partnership between the studio and the fans

We have three novels at pdf stage so far, uploaded to ISSUU as private documents, and I am going to release the link to one of them for discussion and review purposes - I am not trying to circumvent your ruling against fanfic on MobileRead.

"A Leap of Faith" by House Abukoff Productions is a Star Trek: Enterprise Virtual Season 5.

It's a pre-release copy, pretty close to final, so if anyone spots any typos I'd appreciate you dropping me a PM. On this book, you might notice that ...

* I've used paperback sized paper - If anyone gets this printed they'll probably get it "perfect bound" (ie a glued spine) as a paperback. (Lulu for one won't publish Fanfic though)
* I've made up a small Fan Productions logo to go on the cover somewhere
* I've put a shortened copyright disclaimer on the title page
* I've got quite a comprehensive copyright disclaimer just before the first page of the story
* I've changed the cover to say that it is "A Star Tre..."
* I've changed the page header to take out the reference to Star Trek: Enterprise
* I've added a free advertisement for the two latest eBooks from Simon & Schuster

I've done this to ...

• Prominently brand it as a fan written work so that it can't be passed off as a professional work by a third party.
• Freely and openly agree that CBS/Paramount own the copyrights and Pocket Books are their official licensee
• Show support for Pocket Book's commercially available eBooks

in fact one of the purposes of this project that I might highlight a bit more prominently is that I hope that this project will encourage more people to read eBooks. Pocket Books have a vast back-inventory of books that they could start getting profit from if only more people would read them as eBooks which don't have the same production, transport and distribution costs as a paper-book.

What possible purpose could be served by stopping us? Will they sell more books? Will they win more fans? I see our relationship with the licensee as being a mutualistic symbiosis rather than a parasitic leeching.

Kirok of L'Stok

[HarryT]

Originally Posted by Kirok

I'll make no bones about it, CBS/Paramount have been an incredibly lenient studio (on the whole) when compared to, say, Disney

Unfortunately such things can change with the studio management. I'm sure you member a few years ago Paramount had a "purge" of Star Trek fan web sites and sent "takedown" notices to everyone who was infringing on their copyrights and trademarks!

[Kirok]

Originally Posted by HarryT

Unfortunately such things can change with the studio management. I'm sure you member a few years ago Paramount had a "purge" of Star Trek fan web sites and sent "takedown" notices to everyone who was infringing on their copyrights and trademarks!

It's true that the attitude of the ''Star Trek'' copyright and trademark holders towards fan works has varied over time. In early 1996, as you say, Viacom went on the attack, sending out a wave of cease and desist letters to webmasters of ''Star Trek'' fan sites which contained copyrighted film clips, sounds, insignia, or other copyrighted material. Under threat of legal action, many Trekkers shut down, leaving behind scanned copies of letters sent by Viacom. Shortly afterwards, Paramount launched a subscription-based website, ''Star Trek Continuum''. In the lead up to the release of the film ''Star Trek: First Contact'', then-president of Paramount Digital Entertainment David Wertheimer stated Viacom was targeting sites that were "selling ads, collecting fees, selling illegal merchandise or posting copyrighted materials."

Faced with the threat of legal prosecution, most of the sites complied with Viacom's demands, deleting the offending data. However, a handful of webmasters resisted Viacom's pressure tactics, demanding specific citations of offending material from Viacom.

Viacom's actions were seen by numerous sources as an example of a wider civil liberties issue and poor public relations. In a ''Wired'' article, Jennifer Granick, a San Francisco criminal lawyer who went on to champion cyber rights, felt that the unofficial sites should be covered by the fair use doctrine in United States copyright law. In a 1998 article, UCLA associate professor Howard Besser saw it as an example of the content industry "exploiting concerns over digitization and attempting to reshape the law by strengthening protection for copyrights holders and weakening public rights to access and use material."

Fan fiction has been a specific battleground for the legal issues balancing a copyright owner's legal rights against a fan's use of that material, and ''Star Trek'' has been at the forefront of the controversy. Many of the precedents set by fan fiction apply to other media, particularly fan films and audio dramas - however, the same dangers apply as well. Incidents where fans have broken the tacit agreement between authors and fans (for example, trying to make money from a derivative work themselves, or accusing an author of appropriating their idea) has caused a backlash from certain authors.

''Star Trek'' fan films currently operate in an informational vacuum, since Paramount has made no official statement regarding their existence, pro or con. Fan filmmakers have generally kept a low profile, hoping not to draw attention to themselves. However, with the demise of the TV series, the fan film community has been drawing more attention in the media, and even a certain amount of recognition from the entertainment industry.

Cow Creek Films, the production company at the time for ''Star Trek: New Voyages'', had contact with Paramount to successfully reverse a cease and desist order which resulted in a set of guidelines being verbally agreed on:

1) No profit can come from the film.
2) It cannot be shown in Festivals or at Conventions or any other venue where money is charged for admission either directly for the film or the event itself.
3) It can only be a free download and cannot be offered in lieu of a "donation".
4) They are NOT giving us permission to do the show, but rather turning a blind eye to it as long as we stick to the rules.

Don't bother looking for the TrekBBS thread that had Jack Marshalls statement about the alleged "Secret agreement with Paramount", it has long been archived with the delete button by TrekBBS. Luckily I downloaded a copy. (-_^)

Getting back to Viacom's 1996 campaign, the salient point is, I think, that they saw the fan sites as competition against their ''Star Trek Continuum'' during the early days of the internet. As it turned out their attempt to corral the fans into a paying site failed, although it's successor, StarTrek.com, fared better to the extent where, when CBS wanted to axe it, the fan outcry saved it!

The modern climate towards the commercial use of the internet, is to use it as a publicity tool rather than simply as a marketing tool. The internet can and does make or break a production, so much so that high profile fans are being contacted by productions to create a publicity blog for them. Look at "Snakes on a Plane", "The Numa, Numa Song" and ask anyone between 18-24 who Leeeroooy Jeenkinnns was.


K