If there is anything that will get me riled up, it's authors playing lawyers. Lee Goldberg and John Scalzi are fighting the good fight against fan fiction..er something. Everybody knows that Lee Goldberg has it out for people who write fan fiction; this is nothing new. He takes any opportunity to slam them and, in a way, is almost gleeful when one of them takes a hit from media when they go beyond what copyright law allows. There is nothing wrong with that alone, but if Lee and John Scalzi had their way, the law wouldn't allow any copying at all, in which case Lee would be living at the end of a thousand lawsuits for quoting other Internet writers without permission to do so.
But the law is on Lee's side on this one. His quote of Scalzi is a small portion of the original, non-competitive, and not for financial gain. It's also non-transformative in nature. He hits every single clause of fair use, and so he can get away with using somebody else's words without their permission. But that doesn't make it right to do it yourself while criticizing other people for doing essentially the same thing.
"You gotta love the hypocrisy and idiocy of fanficcers", Lee says, "It seems the "fanfic community" is in an uproar because some fanficcer stole from another fanficcers work." The question for me is what matters more to Lee, that a copyright issue is involved, or that fan fiction authors -- which he hates -- are screwing each other over.
If the work was original, he'd be the first person on their side in the fight. However, regardless of how original the work may or may not be, something stolen is something stolen. The reality is the legality of fan fiction has not been decided by the only court whose opinion matters. The Supreme Court has decided many cases involving copyright infringement, and they have usually come down on the side of the alleged infringer. This is because anyone with a copyright automatically assumes that any unauthorized use of their material is illegal, when that's far from the reality. But The SC hasn't made any significant decisions involving fan fiction, so this has not been decided.
the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
the nature of the copyrighted work;
amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
the effect of the use upon the potential market for or value of the copyrighted work.
These are the four factors a judge must consider when determining the legality of an unauthorized use of an entities copyright. The first part of the first test is mostly irrelevant, for it is the second part that has become the dominant test in legal cases this decade. If your use of someone else's copyright is not for commercial gain, that alone in most cases will negate the other tests. Given that the entire purpose of copyright is to protect and promote financial gain (not it's original purpose, but most certainly the current purpose of copyright law), it can hardly be considered an offense to use another's work when it is not fiscally damaging.
The second test, the "nature of the work" is fairly ambiguous.
The third test is irrelevant for fan fiction unless this is a matter of word-for-word copying. It is important however to note that especially in the case of blogging and Usenet posting, reprinting an AP or Reuters story in full without permission does not fall under fair use. I am not aware of any case that has stated that a one-hundred-percent copying of a protected material is ever acceptable without permission.
This leaves us with the fourth and final test, effect on the potential market. This can be bundled with the first test to a degree, but is more about competition without profit. In other words taking character names, places and concepts, with original stories, but then also making a TV show out of it (even if the show is free) so that it is competing directly against what it is taking from.
The few fan fiction writers that have done this have been quickly and consistently put down by lawyers, and nobody has ever taken the matter to court, given the certain defeat at the hands of the copyright holder.
Where we find ourselves is a gray area where fan fiction for commercial gain doesn't fly, and everything else is debatable. Scalzi seems to have the same emotional objections that Lee Goldberg does. He's just pissed that fan fiction thrives, and probably is entirely legal. That there is a dispute within the fanfic community at all is just fodder for them to vent their frustrations with people being allowed to get away with it. Maybe not, but that's what it feels like.
"Let's remember one fundamental thing about fanfic: Almost all of it is entirely illegal to begin with. It's the wild and wanton misappropriation of copyrighted material (I'm sure there is fanfic that features public domain characters, just not nearly as much as there is of, say, Harry Potter fanfic). Copyright holders may choose not to see it, or may even tacitly encourage it from time to time, but the fact of the matter is that if you're writing fanfic, you're already doing something legally out of bounds. And, really, if you're already wantonly violating copyright, what's a little plagiarism to go along with it? Honestly. In for a penny, in for a pound." -- Scalzi
As I have already debunked, fanfic is not illegal on face value. He simply doesn't really understand the situation well enough to be talking about it like this. The copyright holders ignore the majority of fan fiction because their lawyers are smart enough to know that a. they aren't worth he money to go after, and b. they probably won't win given the substantial cover that the fair use doctrine gives them anyway.
His entire post falls apart after that, because it's based on the presumption that fan fiction being illegal, everyone is committing the non-crime willfully.
I for one am getting tired of self-righteous authors playing judge and jury, especially when they so egregiously get it wrong. They may not like it, but fanfic is legal and here to stay.
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