First of all, Zen wants it made absolutely clear that he is in NO WAY
trying to discourage the authors of fanfics, or tell them not to write or
release their stories.  Zen writes fanfics, and has no intention of
stopping.  Zen is WHOLE HEARTEDLY in FAVOUR of fanfics.  That said, they
are still technically illegal.


At 17:40 11/27/96, Christopher Bair wrote:

Zen wrote:

The first being that if the owner of the copyrighted and/or
trademarked character can show that your fic/book/whatever has
damaged the marketability or the value of their copyright, they can
cook your ass with gravy.  Money will NEVER come into it - at least,
not whether you are making any or not.

This is more for the means of civility when it comes to lawsuits. Don't
be afraid, first-time authors, of such claims. Yes, publishers and
owners have sued writers for using copyrighted characters in stories,
even those published completely for free. These have not been copyright
infringement cases, as far as my reference materials list, but rather
civil suits, stating that the stories have misrepresented the owners of
the copyrights.

Zen is sorry to have to disagree.  They HAVE been copyright infringement
cases - and there have been a number where fanfic writers have gotten sued.
Those are rare - very rare, but do not kid yourself, they DO happen.

99% of those that DO happen occur because some idiot tried to be nice, and
ask the author's permission to publish a story - even a non-commercial one.
This puts the authot into a tricky position - the more conservative their
attorney or agent is, the less likely thay are to be ABLE to grant that
permission.  If they withhold it, then if you DO release the story, they
HAVE to sue you.

As long as they can maintain plausible deniability, the validity of their
copyright is not threatened, and they can read, enjoy and tolerate the
fics.  Most of them do.  Like Terry Pratchett.  But if you force them into
a position where they MUST acknowledge the existance of a fic, then their
own situation gets complicated, and it is far safer for them to say no -
and once they do, they will be REQUIRED to enforce that rejection, or they
lose their copyright.  They are NOT going to let that happen.

However, take this into point: Any characters, even those still owned by
copyrights, can be printed, even in magazines that charge prices, and
pay you, as a writer, for the story. Case in point: Star Wars and Star
Trek, two HEAVILY guarded registered trademarks, are regularly published
in trade magazines, books, etc., nearly every month.

This is NOT the same thing!  Not at ALL.  Trade magazines, like Starlog and
the like, or even TV guide for that matter, are not publishing material
that violates copyright - they publish *information* and thus are protected
by what is called "Fair Use" - Copyright law specifically provides for the
publication of excerpts and related material "for the purpose of review and
commentary" - whether that review and commentary is in the form of a
magazine article about a film, or even a technical piece on how special
effects were done, is irrelevant - they have the shield of journalism, and
educational use.

"Research" can also be used to allow some publication of material that
includes copyrighted material.  Files Magazine, and Couch Potato Books,
both publish LOADS of goat tripe about Star Trek and other TV shows.  They
can do this, without paying royalties, under Fair Use, as an academic
venture - They are compiling information on a cultural phenomenon, whether
it had any real impact or not doesn't matter, just that they acknowledge
ownership of the trademarks involved, and stick to materials of "academic
interst" - and this does not have to be highbrow, either.

A book entitled "Stories of Star Trek" could be published, and be nothing
more than plot summaries and stuff about the episodes, and it would be
legal.  Likewise, the collections that you see like "Lost Tales of the Next
Generation" are perfectly allowable - "Scripts that were never filmed"
outnumber scripts that were by ten to one - and once a script has been
rejected, it can be published as a "lost story" - all in the name of
academic interest of course.

The catch there is, that if it was NOT a rejected script, but was, say,
someone's fanfic, then you have violated the terms of fair use - by making
fraudulent claims, and you are wide open to lawsuit.

Now why, when Paramount and Lucasfilm, Ltd., publish their own titles,
would this not stop? Several reasons. It has to do also with the story,
mainly. Most publishers which do this have agreed, to some point, to
partial payments to the owners, but not every single one does so. Also,
these publishers ensure that the story maintains the aspects of the
owned copyrights and storylines.

Look at what these magazines are publishing - anything the publishes
"original fiction" for Star Trek or Star Wars, is likely owned by Paramount
or Lucasfilms respectively.  (Fanzines do not count, they are, like
fanfics, technical violations of copyright, disclaimers be damned)

Example.  Two companies publish Star Trek Novels - Bantam, and Pocket.

Bantam's novels are ALL re-releases of books that were origianlly published
over ten years ago - when Bantam was the license holder for Star Trek
fiction.  They lost that contract, but they KEPT the reprint rights for
those books - as long as they pay their royalties, they can reprint them as
many times as they like.

Pocket Books has the EXCLUSIVE rights to publish novels (original fiction)
based on Star Trek in the commercial market now.  Anyone can write and
submit one, but getting it accepted is VERY difficult, and impossible
without an agent.  But Guess who owns Pocket Books?  Simon and Schuster.
Anyone care to guess just who owns Simon and Schuster?  Bingo.  Paramount.

As a point of additional interest, Paramount also owns DC comics - which
just got the comic book deals that had been going to Marvel and to Dark
Horse.

More and more, the entertainment conglomerates are moving all aspects of
marketing a property like Star Trek, or Star Wars in house.  They even own
the toy companies that produce all the bloody action figures.

Though one thing to note - not ALL of the Trademarks that these companies
claim would stand in court.  Paramount has trademarked "U.S.S. Enterprise"
which must have the JAG officers at the Pentagon, Naval HQ rolling in the
aisles.

Lastly, things that fall under fair use (as discussed above) Paramount and
Lucasfilms can do nothing about.

Yes, it is VERY true that publishing a story could wind you up in court
for damages, but not because of an infringement, rather because of the
probability that you have just misrepresented the company. If there has
been a case otherwise, I have not heard of one.

Zen has heard of many - Zen regularly does legal research for a number of
computer illiterate attorneys in town (Zen's mother being one of them ^_^
Hi mom!)  Misrepresenting the company in this context is not really a
meaningful phrase - it is too broad.  It certainly does NOT rule out
infringement.  Infringement is a form of misrepresentation - if it can be
shown that you have represented yourself as having the rights to use a
trademark that you do not.

Pick up a copy of Writer's Digest Magazine, and you will see some of the
sort of thing that Zen means.  The company that makes RollerBlades (tm) is
forever taking out ads warning authors that "RollerBlade" is not a verb -
not a generic term.  Authors are NOT supposed to use sentences like "such
and such went rollerblading" - even if it IS common usage, if it becomes so
in print, then the Company can LOSE their trademark.  They don't like that.
Name recognition is fine, but poor authors have to use terms like "inline
skates"

Xerox and Coca Cola have both had to deal with this - as much as it
gratifies the soda manufacturer to have "Coke" be a generic term for a cola
drink, they cannot afford to let it happen in print, or they lose their
trademark, and ANYONE can sell "Coke"  Now, they cannot hope to catch every
instance, and the law does not require that they do - but it DOES require
that they make a good faith effort to protect that trademark, so tempt not
the wrath of Dragons, for they have megabux to pay mean, nasty, and very
rich lawyers.  You don't.

ALWAYS be weary of publishing anything. There have been authors who have
published titles they thought they owned all the characters to, and
assumed that it was completely original, but later discovered that a
story similar to theirs was published years before.

No - that is unduly harsh - Publishing, by definition, is the act of making
some work, be it a story, a piece of art, or watever, available to the
general public.  You have the right to do that - the kicker generally comes
in when you start to publish and get PAID for it.  When you submit a story
to RAAC, you are publishing it - but you are deriving no profit from it,
save a measure of egoboo, which is not taxable, and is not recognized as
remuneration in a court of law. ^_^  Commercial publication can get you
into trouble, though.

Best way to avoid any of this:

1) Have MANY ppl read your stories before you submit them ANYWHERE,
including original stories.

Not necessarily - all this can do is establish that you had an idea and had
written it up.  There are a LOT of ways to do that, many of them more
reliable, and more readily accepted as evidence - including, filing a
copyright of your own - it is not difficult, or expensive.

2) If you use anyone's characters that are owned with trademarks or
copyrights, send them the story to, and politely ask for permission to
publish it.

NO!  DO NOT DO THIS!  PLEASE - FOR THE LOVE OF THE GODDESS DO NOT DO THIS!

This is one way to increase your chances of getting sued for a fanfic or a
fanzine a thousand fold.  It msy seem like common courtesy to do this, but
it is a recipe for disaster.

In most cases, an author, or the like will HAVE to deny your request - and
if you release the story at that point, whether you get paid or not, They
MUST sue you!  They HAVE to defend their copyright!

You are not likely to get permission from anyone for this sort of thing -
though there are exceptions.  Anne McCaffrey has given permission to fic
writers to use her Pern universe - but following VERY strict guidelines -
one of which is that you cannot use her *characters* - just the world.  You
also are restricted in any story that might impact her characters, so
timeframe and location become important.

Authors of books are the most likely to be exceptions - books are fairly
simple entities - you have the author(s) and the publisher to deal with,
and as long as the author has a liberal attorney, their risk is minimal,
and they may be inclined to be generous - like Ms. McCaffrey.

However, when you start getting into things like Star Trek, or Ranma, it
gets orders of magnitude more complex - You have the writers, the animation
or television studios, the publishers, and the syndicators and the video
distribution companies, etc to deal with - More people to get twitchy about
the defence of the copyright, and more lawyers.  In short, forget it.

As long as you do NOT call official attention to yourself, they can turn a
blind eye, and reap the rewards of loads of fen who promote their series'
for them - but wake the dragon, and you WILL get burnt.

3) Ensure to all that this story, if using copyrighted characters, that
IT IN NO MEANS REPRESENTS THE OWNERS' OPINIONS, etc. . . . You know what
this looks like, because most of you have seen it elsewhere.

Yes - this is a sensible thing - but it certainly provides no real
protection.  If they want you, they have you.  The good news is that they
generally don't want you, unless you annoy them.

But, in the end, please remember that no matter how much protection you
give yourself, you can always be subjected to the wildest lawsuits,
irregardless of anything.

TRUE!  ABSOLUTELY TRUE!  ABSO-FRIGGING-LUTELY TRUE!

Oh, and one more thing ANY good author will tell you: GET EVERYTHING IN
WRITING, AND READ EVERYTHING THOROUGHLY BEFORE MAKING ANY FURTHER STEPS!

And READ THE FINE PRINT!  ^_^

Again, perhaps there is a case where infringement damages were settled
against the defendent. I have not heard of any, but my books are that in
depth into the worlds of civil lawsuits.

Well, Zen has any number - and WestLaw has more.

[SNIP]

Zen the Heretic-

Thank you, Zen, for your opinions, both beneficial and malign. EVERYONE
needs someone like this to opinionate his or her work. Someone who's
very unbiased.

Do itashimashite!  Zen runs an archive of sorts - collects fan fiction, and
fan artwork, and deals with publication issues like this all the time -
Title 17 of the USCA (Copyrights) occupies a prominent position in Zen's
library.

Christopher Bair
caern3@cris.com

Zen the Heretic-
(Who bloody well DID ramble this time.  Gomen nasai!)