[HPFGU-OTChatter] Article from the globeandmail.com Web Centr e

Fri Apr 27 13:49:22 UTC 2001

Tandy, Heidi wrote:
> 
> You know, given that Canadian law *is* different from US law, and I am
> certainly not an expert on the law of our friends to the north, *maybe* all
> the assertions about copyright are correct.
> But I don't think so.
> You'd THINK they would talk to a copyright attorney about this, wouldn't
> you?
> 
> Nah. That would be practical reportage.

The reporter didn't do much research on it and it shows.  That was one
of my MAJOR problems with it.  He chose to ask a 15 year old from
fanfiction.net, a very biased source who hasn't showed an affinity
towards research and not representative of the fan fiction community as
a whole, as the major source to speak for fan fiction writers.

For authors he chose Chelsea Quinn Yarbro who is on far right end of the
spectrum when it comes to fan fiction derived from their books to
discuss author opinion and what happens is it makes EVERYONE looks bad
and further perpetuates misinformation and alienates both parties from
eachother.  It's more divisionist (desicive?) and an unfair
representation.  People on both sides wonder why fans and authors can't
see eye to eye on this topic... oye.  It's something that is interesting
to read but frankly, would have been better off having not been written.

Resources on fan fiction as it pertains to copyright law are as follows:
http://writersu.s5.com/law/policy.html (Okay, this is by fandom and
mine....)

The following detail legal aspects:
http://www.whoosh.org/issue25/lee1a.html
http://users.erols.com/tushnet/law/fanficarticle.html
http://www.netfunny.com/brad/copymyths.html
http://writersu.s5.com/law/copyright.html
http://www.zdnet.com/computershopper/edit/cshopper/content/9906/402068.html
http://slashdot.org/features/00/03/11/1124241.shtml
http://www.salon.com/tech/feature/2000/10/10/stolen_porn/index.html
http://www.reason.com/0003/fe.jw.copy.html
http://www.fplc.edu/tfield/COPYSOF.htm

The following is an extract from a paper I am still editing due next
Wednesday on this particular topic:

In the legal world[3] , fan fiction's status is somewhat unclear because
of a lack of clear legal precedent in case law.  Most legal scholars 
consider fan fiction to be a form of "derivative fiction." In the
article "10 Big Myths About Copyright Explained,"  Brad Templeton states
that fan fiction is a violation of copyright: "U.S. Copyright law is
quite explicit that the making of what are called 'derivative works' --
works based or derived from another copyrighted work -- is the exclusive
province of the owner of the original work" (Templeton)  This is
supported by the Copyright Act of 1976 which states that the creator
has:

"the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies . . . to the public by sale or other transfer
of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic . . . and motion pictures
and other audiovisual works, to perform the copyrighted work publicly;
and
(5) in the case of literary. . .pictorial, graphic, or sculptural works,
including the individual images of a motion picture or other audiovisual
work, to display the copyrighted work publicly." (Fisher)

Jeffrey L. Fisher explains in "The Copyright FAQ" that these rights are
exclusive to the copyright owner and  the rights "are not waived through
inactivity or failure to enforce. These rights can be enforced at the
owner's discretion and at any time[4].  It is illegal for anyone to
violate any of the rights provided to the owner of the copyright."
(Fisher) 

	The reality of the situation is that very few companies invest their
time and money in order to protect their copyrights and trademarks of
their media products when it comes to derivative works posted to the
Internet.  Those companies that do seek to protect their intellectual
property often find themselves having to deal with a fannish backlash
such as the one that happened after Lucas Films and Time Warner sought
to protect their intellectual properties. (Weise) For some large
corporations such as Viacom, who owns Star Trek, tolerating fan fiction
is advantageous to their company.  The publishing of anthologies has
created a sense of unity with in that fandom.  Overall, fan fiction has
the potential to expand a companies market share by bringing greater
exposure to their product, increase interest in their product, create
fan unity, and does not directly compete with their product.  

	The situation differs when it is individuals, not companies, who find
their work, their intellectual property, as the basis of derivative
fiction.  Authors have a different set of concerns to worry about.  For
most authors, their work is often their sole source of income  and
actively protecting their work, work that is  protected under the US
civil law through intellectual property rights acts such as the
Copyrights Act of 1976, is the only way to ensure the continuance of 
their livelihood.  Because of this, protecting their copyright becomes a
bigger issue than it might be for a corporation.

[3]   Information on fan fiction as a form of derivative fiction can be
found at http://writersu.s5.com/law/copyright.html ,
http://members.tripod.com/~AvatarHR/legalfaq.html ,
http://www.whoosh.org/issue25/lee1a.html and
http://www.netfunny.com/brad/copymyths.html,
http://www.twin-elements.com/writings/rants/fanfic.html,
http://www.lclark.edu/~loren/cyberlaw97/morrisseybutler.htm. 

[4]   This is different than trademark law, where according to Elizabeth
Weise in an article for USA Today, if you don't protect your trademark,
you can loose it.

-- 
Michela Ecks - mecks at prodigy.net - Textual Poacher - Spastic Hale Girl
"Babylon 5 was last of the Babylon stations. There would never be
another. It changed the future and it changed us. It taught us that we
have to create the future or others will do it for us. It taught us
that we have to care for one other, because if we don't, who will? And
that true strength sometimes comes from the most unlikely of places.
Mostly though, I think it gave us hope that there can always be new
beginnings, even for people like us." - Susan Ivanova