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A Definitive Moment


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John Scalzi dropped into the comments of this post yesterday on fan fiction. He seems to think that I didn't do a good enough job proving my case, yet didn't make any arguments of his own to back that up. The problem, as is often the case, people understand their rights under the law, but never bother to learn everybody else's.
"Your debunking is not very good, I'm afraid, and I wouldn't suggest other fanficcers follow it. The contention that fanfic exists in a "gray area" is mostly a fantasy, Wikipedia entries on subject notwithstanding.

As a matter of law, fanfic is really not any different than other sorts of writing, and there is lots of case law on the matter of the appropriation of copyrighted material."
This is absolutely correct, and most of it comes down to whether or not money is involved in one way or another. When profit and potential market impacts are ruled out, fair use is generally assumed.
"I am not lawyer; on the other hand I have been professionally engaged on copyright matters for more than fifteen years, simply as a matter of knowing my rights under the law. Thereby I can say with confidence that your understanding of the legality of fanfic is not very accurate."
I respect your experience, but not your (mis)understanding. Copyright law prevents unauthorized copying, and section 107 provides exemptions which grant unauthorized copying. As I explained the first time, and as I will explain yet again, most fan fiction gains these exemptions and can be considered legal.

Your fifteen years of engaging in whatever it is you engage in is wonderful, and I'm sure it provides you with great insight. Me, I've been studying IP laws unprofessionally for a touch over ten, and it has given me great insight into technology and intellectual property disputes over the years that have served me well.

Sadly, our collective experience and knowledge has absolutely nothing to do with me being right or not, and since again you fail to make any sort of substantive argument, we move on.
"Likewise, you are incorrect that I have some emotional or intellectual problem regarding fanfic; I say in the entry you note that "I have a generally have a very relaxed attitude toward to the concept of fanfic and find it largely beneficial to the well-being of any media property's longevity," which would appear to belie your assertion on its face. I think fanfic is fine; I also think it's illegal."
I missed that, and so I'll happily take your word on the matter -- but it is legal, if not simply because no court has ever ruled otherwise, but also because the law supports this conclusion. You think it's illegal, I've shown how most of it probably isn't. Show me something I can chew on and we'll talk more.
"Which is to say that if you were to write fanfic in a universe I created, I would have every legal right to sue you, and indeed, I would almost certainly win. However, I would be foolish to do it, and wouldn't anyway, because the idea that people like my universe enough to want to play in it would be pretty damn cool. Personally, I'm inclined to let them play."
This is a bit pointless; you have the legal right to sue anyone for anything you want. If you have more money than the person you are suing, yeah, you'd definitely win because you could spend the into submission. Otherwise, you would have an incredibly difficult time proving your case:
  1. You would have to prove that the fan fiction has a commercial purpose/intent (to make a profit).
  2. You would have to prove that the effect upon your market for selling your work has been, or is about to be (very, very hard) damaged commercially.
...or...
  1. You would have to show that they copied a large portion of your work, verbatim.
The amount taken/used is irrelevant if they are not copying your work verbatim, and the more different their fiction is from yours, the better it serves to prove the transformative nature. That's cookie points for them.

In fact, the only leg you have to stand on is trademarks, if you even have any on your character names, locations, and whatnot.

You've not addressed any of this *at all*, so I can only continue to make assumptions here. Your argument is weak, because it is essentially opinion backed by nothing. I don't mean that as an insult, but you have got to do better than that.

Here We Go Again

Copyright law provides rights for the author of a particular work (a story, book, letter, even an e-mail to your parents) that restrict who may copy that particular work, and for what purposes. Over time, exemptions have been added to these laws that allow people to copy these works without permission, and in fact explicitly against the authorization of the author, should the copying meet any of a number of "tests". These exceptions can be found in 17 U.S.C 107, often called the "fair use doctrine".

Fan fiction can't be cleanly separated from other cases of copyright infringement because in reality, all cases of accused infringement are all unique, which may trigger different tests under the 107's exemptions, and therefore none of them can be lumped together.

The fourth test, as explained by Lydia Pallas Loren (Professor of Law, Northwestern School of Law), has become the dominant test in recent times as copyright has increasingly become a tool of big media conglomerates for making money. Published in the Journal of Intellectual Property Law, 1997 (HTML link citations removed):
In addition to the statutory language, the Supreme Court, in one of its first fair use cases after passage of the 1976 Copyright Act, stated that the fourth factor was "perhaps the most important [factor]. "While in its most recent fair use case, Campbell v. Acuff-Rose, that language is notably absent, the lower courts continue to adhere to the dicta of earlier Supreme Court decisions and over-emphasize the fourth factor, thus making the monetary inquiry a virtual litmus test that must be passed before a use is even eligible to be found a fair use. Even after the Supreme Court's tempered language in Campbell, the lower courts continue to view the fourth factor as the most important, or in the words of one court, at least "primus inter pares." (http://www.lclark.edu/~loren/articles/fairuse.htm#(121))

Agreeing is attorney Judith Gran, who has written on the subject: "It's pretty commonplace to note that the fourth factor, the impact on the market for the original, is by far the most important of the four. In fact, the other rules are important primarily because they help to resolve the all-important fourth question: How will the market for the original be affected if this use is allowed?"

The Supreme Court in 1984 stated clearly that a non-commercial use must be presumed fair on first thought; "A challenge to a noncommercial use of a copyrighted work requires proof either that the particular use is harmful, or that if it should become widespread, it would adversely affect the potential market for the copyrighted work." -- Sony Corp. of America v. Universal City Studios, Inc. This essentially places the burden on the copyright holder to prove that they are being harmed, or are about to be harmed (even harder) by the alleged infringement.

Gran's explanations of the four tests is as follows:
  • 1) The nature of the use. A work that "transforms" the original and adds something new with a "further purpose, meaning or character" is more likely to be fair than a work that merely "supersedes" or "supplants" the original.
Most fan fiction is fair use on this count, though a few may be so badly unoriginal that they fail.
  • 2) The nature of the copyrighted work. This factor recognizes that creative works "tend to be closer to the core of copyright protection" than factual works. Yet some works by their very nature borrow from publicly known, expressive works. This was the case with 2 Live Crew's parody. The Court observed that this factor is probably "not much help" in the case of a transformative work, in which the creators *must* consume the original to produce the derivative work.
This is essentially only useful in cases such as one phone book using another phone books listings, or a website broadcasting live stats and updates of a sporting event. Both have been ruled fair use, right up through the Supreme Court.
  • 3) The amount and substantiality of the portion used. The Court stated that the fundamental question here is not the amount of copying in a purely quantitative sense, but the nature of the copying. Is it the kind of copying that reveals a dearth of "transformative" character?
Character names, places and settings is not much of a copy. If anything, the big problem with fan fiction is related to trademarks, not copyright. Stories that retell other stories from a new perspective is extremely transformative, but also includes a great deal more copying. This is 50/50 and cannot be called either way in general. This can only be decided on a case-by-case basis and is well worth real debate -- in a court room if you want an answer that actually matters.
  • 4) The effect upon the market for the original (and licensed derivatives). This factor requires courts to consider, not just the extent of market harm caused by the particular actions of the alleged infringer, but also "whether unrestricted and widespread conduct of the sort engaged in by the defendant ... would result in a substantially adverse impact on the potential market" for the original. NIMMER ON COPYRIGHT 13.05[A][4], p. 13-102.61. The Court in Campbell recognized that a "transformative" work is likely to serve a different market from the original because, unlike a verbatim copy, it does not serve the same function as the original.
Unless an attempt is made at commercialization, fan fiction does not typically have much if any effect on the potential market of the copied worked, and the bad quality in reinforces it as existing in a different market than the original. Some media companies have made the argument that they consider some fan fiction, such as a number of stories in which Star Trek's Captain Kirk is portrayed as being gay, pollute their intellectual properties with negative public perception. This has never been found as a matter of fact in a court of law, and is tenuous at best.

There is also the consideration that the only potential market fan fiction may threaten would be in short stories, but in this case that market does not even exist in a commercial sense, and therefore can be safely dismissed.

As Gran says, when a work is non-commercial and is not a substantially verbatim copy, it must be presumed to be non-infringing.

I would love nothing more than to cite court precedent on the subject, but there is none. So for now, while debatable academically, the law supports the fan fiction authors.

Conclusion

Fan fiction is supported by fair use, and absent court precedent, it is legal. Any lawyer who has no vested interest in a decision either way ought to tell you the same.

That's as good as it gets. Unless somebody comes back with a better explanation than that as to why fan fiction is illegal, it's game over folks. Write away.

(P.S. I completely left out the section I was going to write on TV spec scripts, because I think I've far and away already made the case, but for those who disagree: TV spec scripts are basically industry sanctioned fan fiction. Not only do they tolerate it, they thrive on it. Almost every television writer has gotten their start doing fan fiction/spec scripts. Beat that with a stick.)
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Aug 11, 2006, 8:42:00 AM
"Fan fiction is supported by fair use, and absent court precedent, it is legal. Any lawyer who has no vested interest in a decision either way ought to tell you the same."

Not really. Your understanding of fair use is over-generous in its assumption that it is at all applicable to most fan fiction, which it is not, not in the least because most fan fiction is not intended for purposes such as criticism, comment, news reporting, teaching, scholarship, or research, which are directly on point for issues of fair use. As you yourself note, "Fan fiction can't be cleanly separated from other cases of copyright infringement" -- and there is ample case law regarding appeals to fair use being knocked down because fair use was not relevant to the purpose of the work. Each case must be considered on its own merits, but certainly the bulk of case law supports the idea that most fan fiction, in intent and use, would not be fair use.

Whether fanfiction is sufficiently transformative, re: Campbell, is an interesting question. I would seriously doubt most is, given that fan fiction relies on a close relationship with an original work for its context, and a several thousand word story relying on the context of an original source material is materially different from a three-minute song relying on a small number of musical bars for context. However, even without considering issues of transformation, there are other sufficient ways to have fanfic trip short of the finish line, as regards legality under fair use. Basically, I would not put all my fanfic eggs into a single transformative basket.

Also be aware that Campbell v. Acuff-Rose Music, Inc. involved parody (a form of criticism and comment), which most fanfic is not likely to be considered, and therefore may not be on point regarding most fan fiction.

As your legal analysis is based on what appears to be a number of incorrect assumptions regarding the scope of fair use, I must again regretfully inform you that your analysis is also once again largely incorrect. As it was the time before, and once again I would not encourage your readers to give it much creedence.

I've written a larger discussion on the issue of the legal of fan fiction over on my site, so if you want my arguments and cites you can go there. Among the commenters there, incidentally, is someone who is both a lawyer and a fan of fanfic (and who, per your limiting factor, has no professional relationship to fan fic), who says "I agree that fair use does not cover a great deal of fanfic." If nothing else, this invalidates your statement quoted above.

As I've noted over at my site, the reason to stress that fanfic is largely illegal is not to denigrate those who write fanfic, but to make sure they understand the possible legal ramifications of what they do, and make sure they understand that under copyright law, a "fair use" defense really isn't likely to keep its writer from legal trouble if the copyright owner wants to press a case. This is, at best, a bit of magical thinking, and an unwise position from which to move forward.

As I say over at my site, and I say this sincerely, without snark, someone who genuinely believes fan fiction is legal may wish to create a test case so that there is what the fanfic community would believe is "on-point" case law. However, I don't suspect anyone will do so; at the end of the day I think it's more convenient to believe fanfic is legal than to know and risk having the answer that case be "it's not," and thus give copyright owners more immediate case law to point to for their own future suits.


Aug 12, 2006, 4:34:00 AM
The problem with the way you're looking at it, and the way your commenting lawyer is looking at it, is that the reasons listed, "criticism, comment, news reporting, teaching, scholarship, and research", are not phrased as to be exclusive. Laws generally aren't.

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as [...]

"Such as", not "for the purposes of".

These are guides outside of the tests that generally trigger exemption immediately, or at least give great weight towards a finding of non-infringement. There have been many findings of fair use that were not for the purposes of "criticism, comment, news reporting, teaching, scholarship, and research".

I read your second writings on the subject, and while I disagree, I did find it interesting. Your warnings to my readers are unnecessary, though. First off, I don't have any fan fiction writer/readers, as I am not one myself (TV and film are my ballgame.) I also have fewer than 10-15 regular readers I'd venture to guess.

I firmly believe fan fiction writers are operating within the law, and I've made that as clear as I possibly can. There is nothing in the world I've seen that would indicate that I wouldn't be able to find a lawyer to agree with me (though I did not speak with her, I have in fact done exactly that in Judith Gran) and perhaps find a great many of them. Having an lawyer agree with you, in and of itself, doesn't mean anything other than you've found a lawyer that agrees with you. The only opinion that matters is that of a judge, and no judge has addressed this yet.

I would love to see a person take a stand, to make the matter clear beyond any doubt, but I just don't see it happening unless someone gets the backing of the EFF, or some organization with such resources. Justice is just too expensive.

Well played, and thanks for coming.


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The text of this article is Copyright © 2006,2007 Paul William Tenny. All rights reserved. This work is licensed under a Creative Commons Attribution-Share Alike 3.0 United States License. Attribution by: full name and original URL. Comments are copyrighted by their authors and are not subject to the Creative Commons license of the article itself.