Hmmm.... I recall this subject having come up before. Well, I've got a
great little essay about it around here somewhere...
(digs through archives)
Aha! Here it is! (I love archives. I just hafta find the right message, and
it becomes as easy as cut, paste, and ship!) From our esteemed Zen no less.
Read, enjoy, and tell no one acting in an official capacity that we exist.
<--- begin repost here --->
Look. From a legal standpoint here, you are dealing with the difference
between "Used Without Permission" and "Permission Withheld"
BOTH are technically violations of copyright law, Okay? BOTH -infringe- a
copyright. Make sure that you have that straight right now. But there IS
a *critical* difference.
In the case of "Used without permission" - no attempt to gain permission is
assumed to have been made - and the use, as long as it is not done for
profit, does NOT COSTITUTE A THREAT TO THE VALIDITY OF A COPYRIGHT. It is
*still* a *violation* of the copyright, but the original creator is NOT
required to defend that copyright to maintain its validity.
Unless they are stodgy old bastards, the author will generally be
disinclined to sue for a number of reasons:
1) Fanfiction seldom can be said to hurt the creator's bottom line.
Indeed, it can be shown to be beneficial. Free adverts of a sort.
2) Copyright defense cases are *expensive* - To make a suit cost
effective, two things must happen:
A) The creator must secure a damage judgement against the infringer
Few judges are going to think that 'zines constitute serious
damage
so the creator is left with the task of showing how someone who
likes their work well enough to promote it to all of their friends
is damaging their income potential.
B) The creator must pick a target that can, when the damage judgement
*is* secured, PAY THE JUDGEMENT. A $250K judgement against Joe
Fan
will drive Joe Fan into bankruptcy, and generate a lot of ill
will.
The creator still has the legal bills, Joe fan has nothing, and
the
*only* people that made any money were the lawyers.
3) Even at the professional level, having someone appreciate your work
enough to write a fanfiction based on it can be a tremendous ego rush.
Now.
In the case of "Permission Withheld" (as in the case that Travis has cited)
there is a new factor. An attempt to secure permission was made. Due to
the complex nature of copyright law, the author elected, politely but
properly, to play it safe and withheld permission. The fan did it anyway.
To compound the matter, the 'zine editor published the damned story.
When the request for permission was made, a condition was established that
made the author (Yarboro) OFFICIALLY AWARE of the infringement. Under
those conditions, she was REQUIRED by copyright law to sue the infringer,
or risk LOSING the copyright. She could have elected not to sue, but if
she had...
Another fan could have written a story with her characters, and in her
universe.
That fan could have sold that work for profit. Yarboro could (would) have
sued, and properly so. The fan could argue that since Yarboro had failed
to defend her copyright in the previous instance, that she had yielded her
work to the public domain. If the fan had sufficient resources to stay in
court 'til the bitter end, the fan would probably win on that basis.
'So what?' one might ask. If that had happened, then all of Yarboro's
related work would have been cast into the public domain. Anyone, and Zen
means *any one* could then publish her books and sell copies, and none of
them would have to pay her a cent for the priviledge.
The fan in the above case was just trying to be courteous. At first.
When permission was refused, she was probably resentful. She did not
understand the position that she had put Yarboro into. Yarboro was caught
(to borrow the title of a fanfic some schmuck posted here recently) Between
a Rock and a Hard Place. She may not have *wanted* to sue, but she *HAD*
to sue.
Proving damages became unnecessary - the damages are statutory in cases
like this. It amounts to the value of the copyright itself, and the
estimated future earnings potential of the infringed and related works.
Is this a little clearer?
The bottom line is this:
Fanfics are illegal. fact. nolo contendere.
If a case is of the first type, the first step that an author can/will take
is the issuance of a "Cease and Desist" letter. If that letter is ignored,
a suit will follow. If it is NOT ignored, then a suit likely will NOT
follow.
Even this step is *extremely* unlikely. Authors, manga artists, creators
of all types depend on fannish good will for their livelihoods. When
people are willing to spend hours writing stories that will cause others to
go out and buy their work, they are generally going to be happy about it in
an unofficial sort of way. So, DON'T let all of this scare you out of
fanfic writing.
To avoid being put in the position of a case of the second type, remember a
couple of cliches that are also legal truisms:
1) It is easier to secure forgiveness than it is permission
2) What they don't know can't hurt them (or, by extension, YOU)
Also, what they must understand is that we're
not trying to rip them off, but trying to fill
the void left when some stories aren't complete
or something isn't explained to our satisfaction.
Unfortunately, while that's a reasonable moral/ethical position, to the
best of my knowledge it has absolutely no legal standing and can *not* be
relied on as a defense if things ever got that bad. In other words, don't
depend on it to get you out of trouble, or to keep you from getting *in*
trouble.
This is true. It has NO LEGAL STANDING. But it is NOT something to worry
about overmuch. MOST creators are very reasonable people who actively (but
unofficially ^_^) encourage an active fan base. After all, that's how they
sell their books.
There are things to remember... some authors are concerned with the
interpretaions of their characters, or the relative "canon" of their story
lines, and they will sometimes place restrictions on the use of their work.
Anne McCaffrey, as cited in n earlier version of this post, has indeed
granted her fans permission to write stories in her universe, but there
were tow major conditions.
1) They could NOT use her CHARACTERS. This keeps the characters
pure,
and prevents her fan groupd from fighting over the interpretaions
of those characters. It really was smart... she gave them a whole
world to play in, and they do play. With a vengeance! A more
devoted, loyal fan-base you will not find.
2) They could NOT do any of this for a profit. This constitutes what
the lawyers call "limited license" and all it means is that she
has granted limited rights, but KEEPS the power to revoke that at
any time, should she find it necessary. (She has very *good* legal
advisers. ^_^)
You hear about the first condition all of the time - the second is, of
course, assumed, but it sometimes helps to state the obvious for those who
may not appreciate the gift they've been given.
Another example is J. Michael Straczinski (sp? oh, bugger it...) and
Babylon 5.
JMS has his story arc mapped out from beginning to end. As a result, he
has asked that Fanfics not be posted to the 'net in general. As a result,
there are a number of Babylon 5 creative Mailing lists that, while not
sanctioned, are tolerated because fanfic is inevitable, and the people
writing it are making an effort to comply with his wishes.
We don't do it to make money, just to keep that
little section of the fiction universe alive.
Same goes for this. The fanzine publisher made this claim in the Yarboro
case, and it didn't help him.
Because he was stupid. That story was anti-matter from the beginning. The
*story*, not the 'zine, is what got both of them hung... The money issue
was irrelevant in this case.
<--- end repost --->
Hope it was as fun for you as it was for me!
Darren T.
darrent@mail.utexas.edu