Fanfic is Not Illegal

Wednesday, August 09, 2006 -

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.

Like this post? Subscribe to RSS, or get daily emails:

John Scalzi

Aug 10, 2006, 9:06:00 AM
"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."

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. 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.

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.

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.

Anonymous

Aug 10, 2006, 8:16:00 PM
Let's remember one fundamental thing about fanfic: it's garbage.

Teresa

Aug 12, 2006, 10:02:00 AM
Hi Paul, new reader :)

I disagree with John.

If someone shoves me, I can sue them for assault, and could win if I can prove the necessary elements to make up assault.

This doesn't mean that "shoving people is 'illegal'". Nothing could make that a correct statement.

Maybe that might help other people who are confused like John Scalzi.

I thought it was good of him to leave his comments, though. It's always good to know where someone is coming from.

Paul William Tenny

Aug 12, 2006, 10:14:00 AM
Teresa,

I'm glad he came over here to comment on this not once, but twice. I think the important thing is that we can all agree that debates like this will continue until a court settles the matter.

Thanks to you too for your comment and stopping by. Hope I see you around.

Anonymous

Aug 13, 2006, 4:00:00 AM
"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."

Copyright law does not allow any infringement at all. That is what copyright is, plain and simple, the protection of intellectual rights - in this case, a writer's characters and situations.

"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."

Quoting somebody else's work to illustrate a point and taking their ideas to use as your own are not the same thing.

"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."

It is illegal. That's what copyright law means. You cannot use another writer's characters or situations without their permission.

"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."

Simply because it is expensive to pursure someone through the courts who has stolen your work, does not make the theft legal.

As John says, if someone takes your characters and uses them in their own work - this is illegal; an infringement of the original writer's copyright. However, that writer may decide not to pursue any legal action, but that does not make the copyright infringement legal in any way, whatsoever.

And, personally, I find your attack of writers who care enough about their work to stand up for their rights and voice their concerns to be tasteless.

I sincerely hope no-one ever steals your writing.

Anonymous

Aug 13, 2006, 9:30:00 AM
Teresa -

Don't try your shoving theory out in public, in front of witnesses. Shoving somebody is battery, it is truly against the law, not something that merely has to be sued over. Admittedly, the courts usually do not allow themselves to be tied up with shoving cases, but try shoving a policeman and see where you end up.

I agree with you that there is a grey area for fan-fiction, but that grey area is published vs. non-published. You can write all the fan fiction you want too, and show it to as many of your friends as care to read it, but as soon as you publish it (which includes posting it on the internet), you have crossed over the line into appropriating someone else's intellectual property.

Namely, that once an author creates characters, that author has the right to write any other story using those characters that they might wish to. By publishing other stories using those characters and settings, you have usurped the right for them to write a story similar to yours. However infinitesimal that chance might be.

Paul William Tenny

Aug 13, 2006, 6:45:00 PM
This is for the second anonymous poster in this thread:

"Copyright law does not allow any infringement at all. That is what copyright is, plain and simple, the protection of intellectual rights - in this case, a writer's characters and situations."

17 U.S.C. 107 expressly permits unauthorized use. As is usually the case, people think copyright does not allow unauthorized reproduction at all. It does.

"It is illegal. That's what copyright law means. You cannot use another writer's characters or situations without their permission."

You absolutely can, it's called fair use. I've quoted it half a dozen times, try actually reading the code sometime: 17 U.S.C 107.

"Simply because it is expensive to pursure someone through the courts who has stolen your work, does not make the theft legal."

Copyright infringement is not theft, it's copyright infringement. Copyright infringement is a civil offense, larceny is not.

"As John says, if someone takes your characters and uses them in their own work - this is illegal; an infringement of the original writer's copyright."

Not at all. One of the accepted uses that has strong court precedent already is parody, but it is not the only one. Have you ever read Supreme Court opinions on copyright issues? Have you even read the code at the heart of this debate? Do you have any significant preexisting understanding of copyright law, or are you just repeating and agreeing with John? Because it seems to me your only argument is that John is right because John is right.

"And, personally, I find your attack of writers who care enough about their work to stand up for their rights and voice their concerns to be tasteless."

Quite the contrary, I'm defending writers, because however low regard you may hold fan fiction authors, they are writers too. And they too have rights. There are many parts of copyright law that exist solely to give rights to people other than creators, and I stand up for them because they are often trampled. If you are personally offended by that, then I have no answer for you. Until a court weighs in on this, it's a purely academic debate. If you can't keep your self righteous emotions out of it, then that's your problem.

What I find amusing about all this is that despite what people of your belief keep saying, I'm the only person around that has actually provided logical reasons that back my theory.

I applied each test that a judge would consider to fan fiction, and found that the two most important tests as stated by the Supreme Court fall completely in the favor of fan fiction. One is mostly irrelevant, and the other is a toss up. Not one person has argued that my conclusions or methodology is flawed or incorrect, only that in their personal opinion, I am wrong.

That's not good enough. Not even close. I went to a lot of effort to explain section 107 of the copyright code, and supplied supplementary opinion from a law professor that sustained my own conclusions with her own. No court in the country has ever found as a matter of law that fan fiction is illegal. Not one.

I have lawyers on my side, John as one on his side. There's nothing unusual about that, if lawyers could agree on things like this then we wouldn't ever have lawsuits. Worst case scenario for me is this is a draw (if anyone ever manages to put up a real argument), and worst case for your side is I've got you dead to rights and you're all in for a rude awakening when one of these things makes it to trial.

If you want to ignore it, and just assert yourself as being right without any evidence or method to back it up whatsoever, than you've accomplished nothing, and I'm afraid I cannot respect that.

I respect John because at least he tried. Nobody else has even come close to refuting the case I've made that fan fiction does in fact have legal standing to exist, and until somebody does or a court weighs in, I consider this case closed.

Thanks for reading, and thanks for commenting.

Teresa

Aug 14, 2006, 7:55:00 AM
I concede that my shoving analogy is flawed since assault in tort and battery in criminal law are made up of the same elements.

My point is that breach of copyright has only been criminalised in certain cases. Only in these cases can a breach of copyright be said to be 'illegal'. Fanfiction is not one of them.

I'm getting pedantic here but Paul is right, breach of copyright or not, fanfic is not illegal.

Saying something is illegal is calling the people who do it criminals. In many cases of fanfiction, this is unpleasant, unfair and incorrect.

Dave Klecha

Aug 15, 2006, 5:33:00 PM
Just because it amuses me to do so, not because I have a vested interest in the proceedings.

In fact, I think your interpretation of Title 17, Section 107 to be... lacking and biased in favor of the fanficcer, which you've stated to be your intent, but still. You've claimed the interpretation to fairly clear cut, even stating that copyright holders would face "certain" failure in a courtroom test.

I'm not so sure.

So, test 1: Creating sequels has already been decided as protected, in favor of the copyright holder, up and down the line. So, if the "nature and character" of the use is such that the "fanfic" work exists as a prequel or sequel to the work, expresses it in the same tone and style, and so on, then generally yes, this is not protected under fair use.

Test 2: If the copyrighted work is, for instance, the second part of a trilogy, or an open-ended series, then by all means a fanfic "sequel" demonstrations an infringement; the fanficcer certainly stepped into the place the copyright holder had intended to go with his or her work and usurped the copyright.

Test 3: SC decisions on copyright law have already declared that, not only is the specific composition of a copyrighted fiction work protected, but also are characters, settings, and so forth. This ruling, in large part, helps protect the individual author from having his or her work ripped off by Hollywood. To wit: 20th Century Fox did not actually need to purchase the rights to "I, Robot" from Isaac Asimov's estate in order to call the movie "I, Robot." But, in order to use "Dr. Alfred Lanning" and "Dr. Susan Calvin" and (I think) "Del Spooner" as characters in a drama about robots... they did. They were creating a derivative work (protected under Title 17, Section 106) that did not fall under fair use, and commercial gain was only part of the equation. Regardless, in Test 3, the "amount and substantiality of the portion used" is far from irrelevant since what is used are characters, settings, and significant plot details. Test 3 is not limited to verbatim copying, a/k/a plagiarism.

Test 4: In fact, I'd suggest that most fanficcers' output competes with the original work, since it creates a fiscally competitive (free vs. the cost of a book) market for those seeking derivative works (a protected domain of the copyright holder) of the copyrighted original. I think, in fact, it's been widely acknowledged that Paramount and George Lucas have ample standing in the suit of Star Trek and Star Wars fan-filmmakers, respectively, even though those films are not produced commercially. That they don't is not a testament to their lack of willingness to pursue copyright infringement, or the shallowness of their pockets when it comes to legal fees, or that they're afraid their corporate behemoth will lose out to this army of Davids. It's that discouragement of fannish expressions tends to earn backlash, which can be more financially damaging than the competition their free content represents. (And, in the case of the visual arts, it is hard to get the kind of talent and SFX that a movie studio or George Lucas can muster; the same cannot be said for individually created literary works, meaning a potentially greater degree of competition.)

At any rate, cries of "illegal!" aside, the advice Scalzi offers in his own blog is sound, and likely to be repeated by any IP lawyer out there: that the SC has not decided it does not make this a Schroedinger's Court Room, that fanfic is neither legal nor illegal until the court makes a determination. Given the weight of caselaw supporting the rights of copyright holders to exclusively exploit their characters, settings, plot details, and so forth, barring an express forfeiture of those rights, it seems silly to claim that a work that is, by all appearances a sequel is "probably legal."

Oh, and one other irony noted: Given the arguments that I gave above, it's been observed that the people who hew closest the source material are likely the most liable under the law, while those that compose Alternate Universe, gender-swapping slash are probably the most protected in the realm of "parody."

Got something to say? Post a Comment. Got a question or a tip? Send it to me. If all else fails, you can return to the home page.