Copyright & Fanfiction (law stuff and a note for teachers on the list)

[heidi.h.tandy.c92 at alumni.upenn.edu]

No: HPFGUIDX 10283


--- In HPforGrownups at egroups.com, Penny & Bryce Linsenmayer 
<pennylin at s...> wrote:
> Alexa wrote:
> 
> > Legally, disclaimers mean nothing. When we write fanfiction, we 
are
> > infringing on a copyright, we're doing it wilfully, and that 
could be legally
> > actionable. Now, whether a specific case would be won or not, 
that's another question.
> > I'm waiting for the day when we get a good fanfiction test case 
in court,
> > because I think the argument can be made for fair use and the 
validity of art forms
> > that incorporate appropriated material and popular culture as 
modern
> > folklore and yadda yadda yadda.
> >
> Well, I wouldn't say disclaimers mean *nothing* -- they are some 
defense at
> least.  IMO, it's better to have a disclaimer than to have no 
disclaimer.  But,
> as a lawyer, I will say that disclaimers are typically more 
boilerplate than
> anything else ... and definitely not a solid defense in this sort 
of situation.
> Out of curiosity based on recent discussions, I did some internet 
sleuthing on
> legal sites regarding fanfic -- I turned up nothing.  I don't think 
it's been
> litigated really at all yet.  
Penny is absolutely right. I took this opportunity, and my job as an 
intellectual property/privacy/electronic commerce lawyer to do a 
little checking on caselaw for this issue and came across an article 
from last March which said, "Fans of artists and artistic works 
borrow characters, situations and themes from pre-existing works and 
use them as resources for their own stories. The modern-day 
scribblers are housewives, students, average students; their parodies 
pay public tribute to popular narratives that capture their 
imagination. ... Although cease-and-desist orders are routine 
corporate practice, not a single case involving fan fiction has ever 
reached the courts."
None. Ever. Why? No clue. Cease and desist letters have, as we know, 
been sent to fanfic sites (like the Star Wars Slash sites) and I'm 
sure there's been a Zine or 2 which have recieved them as well - but 
no battle has ever gone ot the courts and thus, since there is also 
no statute out there which says that Fanfiction is Not A Copyright 
Infringement, there is *no* law which affirmatively says it is or it 
is not an infringement (at least in the US). A 1999 Berkley Tech law 
Journal article (14 Berkeley Tech. L.J. 43) does discuss certain fan 
books, like a book about Twin Peaks which gives detailed plot 
summaries of each episode, and a book about "connecting" with star 
trek fans which likewise has extensive summaries of the novels, 
movies and tv shows, but that's not fanfic - and that (I believe) 
would be in Scholastic's purview here in the US, not Warner Bros, 
since Scholastic is the book company - and it's not like they've done 
anything about We Love Harry Potter or that damned Schafer Book Of 
Stupidity (tangent - has she a published email address? anyone want 
to send her an invite to this Egroup?)
I also found an excellent Loyola article froom 1997 (17 Loy. L.A. 
Ent. L.J. 651) entitled Using Law and Identity to Script Cultural 
Production: Legal Fictions: Copyright, Fan Fiction, and a New Common 
Law which I highly recommend to any fanfiction writer with an 
obsessive interest in what is & is not legal. The article supports my 
earlier contentions on this list that it is possible to copyright a 
character, independant of the work in which said character is 
created, but the caselaw is mixed and confusing as to how deep and 
extensive that protection goes, especially with regard to fanfiction 
where the author is not claiming originality in the character. 
To quote from the Loyola article, "Quite possibly, fan fiction could 
affect the market for derivative works, such as novelizations of 
shows. The Supreme Court has noted that "the market for potential 
derivative uses includes only those that creators of original works 
would in general develop or license others to develop." There are 
several reasons to conclude that fan fiction does not fall within 
such a market. The nature of most fan fiction, which explores plot 
and situation possibilities generally refused by copyright owners, is 
such that it is unlikely to interfere with officially authorized 
publications. Romances, interior monologues, humor, vignettes, 
poetry, songs, and stories in which a main character dies would not 
support an official market. This is especially true because fan 
fiction often imagines rather earthshaking changes for the 
characters - marriage and death, [Hi Lori!] among others - that 
the "canon" cannot accept without signaling the end ... So long as 
such stories are not official, they retain their appeal because the 
characters return unscathed in the next episode or official form. 
Additionally, because fan fiction on the Web is essentially free, it 
does not use any monetary resources a reader might put aside for 
fiction consumption. Where distribution is free, the readership 
cannot prove that a viable market exists. Having to pay anything 
might deter almost everyone from reading, thus leaving copyright 
owners no better off."
The writer agrees with me that disclaimers are legally ineffective, 
or almost so, but they also provide a way for the fanfic writer to 
both pay alligience tothe canon and demonstrate subordinance to it. 
Therefore, here's my This-Is-Not-Legal-Advice Statement: Fanfiction 
may or may not be copyright infringement, but you're definitely 
better off putting a disclaimer on it, and anyone who wants to risk 
being a test case on the question of whether fanfic is an 
infringement or not should go publish a Zine and send a copy to 
Warner Bros...

> 

On related notes:
Dai Evans wrote:
> On a question of copyright morals, I wonder how many people on the
> list can honestly say that 100% (or even 25%) of the software on
> their computers is 100% legal.
Mine is, 100%. I don't use Napster (although once the pay system 
there works out, I will!) and I don't borrow from friends. Even in 
college, I was such a goody goody on this issue, but that was because 
I planned, even then, to make a career in intellectual property law. 
--- In HPforGrownups at egroups.com, "Zsolt Felföldi" <fefe at f...> wrote:

> I absolutely agree, and excuse me for not thinking about that. It 
was 
> OK that you deleted my "illegal" message. The one thing in which i 
> don't agree with you, is that i still think it's morally absolutely 
> acceptable to download an e-copy of a book that i have BOUGHT and 
to 
> use it only for convenient searching of the text. <SNIP> I have 
another 
> point of view, another opinion, that's all.

I don't want to sound critical or disparaging - but posts like these 
are the reason I want to (and have wanted to for the past 5 years) 
put together a curriculum for teaching Intellectual Property Civics 
in K-12 - if any of the teachers on the list are interested in 
talking with me about this, please let me know (Hi Ebony!)