At 20:07 5/6/97, David Lerman wrote:

At 06:17 PM 5/6/97 -0500, Zen wrote:

No.  As long as they can maintain some measure of plausible deniability,
they can ignore them or not, as they choose.  It is when it can be
documented that the creator has failed to protect a copyright that they
have a risk.

If nothing calls specific attention to a fic, then they can do whatever
they want - prosecute or not - but the *requirement* to prosecute is not
present.

  Are you sure you're not confusing copyright with trademark?  Trademark
must be protected, but I don't think copyright has the same 'guard it or
lose it' quality.

Pretty sure!  Zen can double check his copy of Title 17 if you like, but,
yes, copyrights have the "guard it or lose it" quality, same as trademarks.

However, there IS a difference.

Copyright -
        Permission is sought and denied, and the product/fic/whatever is
produced anyway - MUST be defended.

        No permission is sought - Copyright holder NOT put in a position
where they cannot deny knowledge - Existance of violation can be ignored
without risk to the copyright.

        No permission is sought - Copyright holder IS put in a position
where they cannot deny knowledge - OPTION - can grant permission retro-
actively, or can sue.  One or the other, required.

        Further, one of the reasons that a copyright holder in this sort
of situation cannot afford to admit to knowing too much about such things
is the chance that THEY might get sued if one of their future works shows
any similarity to a fan work that they can be shown to have read.

Trademark-
        ALL violations must be pursued, or at the very least, a good faith
effort to pursue those violations must be shown.  This is because Trade-
marks are particularly likely to become associated with a CLASS of product,
rather than the specific brand.  Writer's magazines are filled with ads
from various companies warning writers not to mis-use their trademarks.

(Consider that "coke" is now almost a generic term for "soda"... examples
of other words that have been so absorbed are 'aspirin', 'Xerox' and
'RollerBlade')

  What falls under copyright is not easy to define.  Almost any story that
has a boy who changes sex when hit with water will probably fall within the
Ranma copyright.  OTOH, it would be much harder to say that a story about a
high school girl who taken to magical planet/plane/universe and finds that
she has mystical powers violates any copyright just by having this plot
line.  Would any story about a high school student who was an esper and had
two girlfriends be a violation of KOR's copyright?  What if he had three
girlfriends? What if he was gay and had two boyfriends?  Because we
explicitly label the stories as Ranma or MKR or whatever, using the same
names and building on plots from anime or manga, it is very likely, but by
no means certain that a fanfic automatically violates copyright.  A story
such as Ranma Narrabundah could be considered a satire which affords
greater free speech protection under American law (how is it in Australia?).

No, what you are describing here is something that would fit under the sub
heading of "Look and Feel" - and what will be enforceable are only those
aspects of "look and feel" that are UNIQUE to the show in question.  In
short, the hot water/cold water sex change gag could likely be enforced -
the esper with two girlfriends would be more problematic - while unusual,
it is not unique to the same degree.

By using the characters, and the names of the series, copyright violation
IS certain.  Do NOT kid yourself.  But unless you get a Cease and Desist
order, you need not worry too much about it, either.  They really cannot
bring out the heavy guns until you fail to comply with the C&D.

David is right to say, however, that something like Narrabundah 1/2 would
be considered satire, and afforded greater protection as a parody.  Note,
though, that if Shogakukan wanted to put an end to that, they could.  Their
resources will last a LOT longer that those of the average fanfic writer.
Again, though, it is not something to worry about.  Just something to be
aware of.

Writing fanfics is making use of someone elses intellectual property
WITHOUT PERMISSION - and that IS CERTAINLY a violation of copyright law.

However, as long as discretion is used, and common courtesy is followed, it
generally never becomes a problem.

Terry Pratchett - Author of the Discworld novels, has this to say on the
subject:

  "There is no question that using characters, backgrounds, plot threads,
  etc, etc of an author in copyright *can* get you into serious legal
  trouble -- there have been cases over this recently in the States. Try
  publishing a James Bond novel without consulting the Fleming estate and
  see what happens. It's amazing that people don't realise this. Publishers
  are used to getting stories with a covering note saying 'Here's a story
  I've set in Harry Spiven's 'World of Hurts' universe...' and the
  publishers say 'Did you get his permission?' and the writer says 'I don't
  have to do that, do I?' and the publishers go white and say 'Does the
  Pope shit in the woods?'

  That's the REAL world. Now let's talk about FANDOM.

  The law isn't any different. But there's people out there writing HHGTTG
  stuff, Red Dwarf stuff, Star Trek stuff and Discworld stuff for the
  amusement of their friends. Authors react on an individual basis. Some
  hate it and try to stop it. Anne McCaffrey -- I think, although I'm open
  to correction here -- doesn't mind so long as her main characters are not
  used. Douglas Adams seems to have tolerated/given permission for a welter
  of Hitchhikers stuff in the ZZ9 fanzine.

  It seems to me that if something is being done on an amateur basis by a
  fan for fans, and is clearly their own work, and is done out of a shared
  regard for the basic subject matter, then it would be kind of chilly for
  an author to run around hammering people. It's fandom, for god's sake. I
  don't give anyone *permission*, I just smile and think what the hell.

  There's a danger, of course, that some dumb bugger out there will
  interpret this as an indication that Discworld is now in the public
  domain or open to franchising. It is neither. If anyone tries a
  commercial rip-off -- not a parody, not fanac, but a cynical attempt to
  cash in on my Discworld -- then the sewage farm will hit the three
  megawatt aerogenerator."

 Additionally, although a Usenet newsgroup would be considered a public
forum, the limited precedents suggest that mailing lists are not considered
such, so they would gain some protection (at least in the US) for fanfic
stories exchanged within the ML from being considered as violation of
copyright.

Only half right.  Yes, a Mailing List can be argued to constitute a private
forum.  However, that DOES NOT mitigate the copyright violation.  It CAN
mitigate in terms of the DAMAGES that can be proven, and therefore minimize
the damages that could be awarded to the copyright holder in the event that
they DID elect to sue.

 Despite the Berne convention (which I dislike for several reasons),
copyright law as it applies to computer networks is far from settled.

                                                                dml

This is 110% accurate! ^_^

Zen no Itan-sha