Due to an act of plagiarism that happend to a member
of my mailing list, Kenshin Fanfic Discussion, my fellow
administator, Robin-san, posted this for all to see. I
in turn have forwarded this here, as it concerens everyone
on this ML as well; I suggest to those of you who have
archives, that you place this somewhere in it. I can assure
you it's going up on the KFFDisc website, ASAP.
Because of the limitations of my AOL email, I cannot
paste the FAQ into this message; I have attached it for
all interested.
Nicky
-- Attached file included as plaintext by Listar --
-- File: FAQ.TXT
THE FANFICTION VS. COPYRIGHT FAQ
created Wednesday, 11/24/99 by Robin Kloster
last modified Friday, 11/26/99
TABLE OF CONTENTS
1. The Bare Bones
a. The US Copyright Office Online
b. The IMPORTANT Copyright Law Sections
2. What Did All Of That Mean
a. Section 106
#1. Excerpt From the US Copyright Office Circular 21
b. Section 107
#1. Excerpt From the US Copyright Office Circular 21
3. Is Fanfiction Legal
4. Can I Be Sued
5. To 'Publish' on the Internet
6. Would Any Copyright Owner Like to Add Their Stance on Fanfiction
7. The Use of 'Fair Use' in This FAQ
8. The Fair Use of this FAQ
_____________________________________________________________________
1. THE BARE BONES
a. The US Copyright Office Online
http://lcweb.loc.gov/copyright/
A FAQ is available at the online office as well as a copy of the
Copyright Law. I encourage anyone to go read up on his or her rights.
**NOTE: You will need an Adobe Acrobat reader to view flyers as well
as the Copyright Law
b. The IMPORTANT Copyright Law Sections
Below are the sections of the Copyright Law that would pertain to
fanfiction in a US court of law.
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106. Exclusive rights in copyrighted works
Subject to sections 107 through 120, the owner of copyright under
this title has the exclusive rights to do and to authorize any of the
following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work
to the public by sale or transfer of ownership, or by rental,
lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic
works, pantomimes, and motion pictures and other audiovisual
works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic
works, pantomimes, and pictorial, graphic, or sculptural
work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted
work publicly by means of a digital audio transmission.
**Section 106A pertains to copyright on visual art and thus is
excluded from this FAQ
107. Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A, the fair
use of a copyrighted work, including such use by reproduction in
copies or phonorecords or by any other means specified by that
section, for purposes such as criticism, comment, news reporting,
teaching (including multiple copies for classroom use), scholarship,
or research, is not an infringement of copyright. In determining
whether the use made of a work in any particular case is a fair use
the factors to be considered shall include--
(1) the purpose and character of the use, including whether such
is of a commercial nature or is for nonprofit educational
purpose;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation
to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value
of the copyrighted work. The fact that a work is unpublished
shall not itself bar a finding of fair use if such finding is
made upon consideration of all the above factors.
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2. WHAT DID ALL OF THAT MEAN
a. SECTION 106
Unless you are otherwise making reproductions, copies and so on of
copyrighted work, the only important part of Section 106 is the
following:
(2) to prepare derivative works based upon the copyrighted work;
** derivative adj. 1. not original; secondary. -n. 2. something
derived. (the rest of the definition is ignored as it does not
pertain to the subject of this FAQ)
** derive v. 1. to receive or obtain from a source or origin; gain;
glean. 2. to trace trace from a source or origin. 3. to reach or
obtain by reasoning; deduce; infer. 4. to produce or obtain (a
chemical substance) from another. 5. to come from a source or
origin; originate.
What this means is that the copyright owner has the sole right to use
(and abuse) their creations.
BUT - this isn't the last word the US Government has PLACED on this
subject. The House (of Representatives) and the Senate have both
defined Section 106 further.
** While it can be argued that the Copyright Law is law, I would lean
more towards the definitions provided by the House and the Senate.
1 - because both, under law, can CHANGE the law (and have).
2 - I'd rather not get into an argument with either.
#1. Excerpt From The US Copyright Office Circular 21
** The following excerpts are reprinted from the House Report on the
new copyright law (H.R. Rep. No. 94-1476, pages 61-62). The text
of the corresponding Senate Report (S. Rep. No. 94-473, pages
57-58) is substantially the same.
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Section 106. Exclusive Rights In Copyrighted Works
General scope of copyright
The five fundamental rights that the bill gives to copyright owners
-- the exclusive rights of reproduction, adaptation, publication,
performance, and display -- are stated generally in section 106. The
exclusive rights, which comprise the so-called "bundle of rights"
that is a copyright, are cumulative and may overlap in some cases.
Each of the five enumerated rights may be subdivided indefinitely
and, as discussed below in connection with section 201, each
subdivision of an exclusive right may be owned and enforced
separately.
The approach of the bill is to set forth the copyright owner's
exclusive rights in broad terms in section 106, and then to provide
various limitations, qualifications, or exemptions in the 12 sections
that follow. Thus, everything in section 106 is made "subject to
sections 107 through 118," and must be read in conjunction with those
provisions.
Rights of reproduction, adaptation, and publication
The first three clauses of section 106, which cover all rights under
a copyright except those of performance and display, extend to every
kind of copyrighted work. The exclusive rights encompassed by these
clauses, though closely related, are independent; they can generally
be characterized as rights of copying, recording, adaptation, and
publishing. A single act of infringement may violate all of these
rights at once, as where a publisher reproduces, adapts, and sells
copies of a person's copyrighted work as part of a publishing
venture. Infringement takes place when any one of the rights is
violated: where, for example, a printer reproduces copies without
selling them or a retailer sells copies without having anything to
do with their reproduction. The references to "copies or
phonorecords," although in the plural, are intended here and
throughout the bill to include the singular (1 U.S.C. �1).
Reproduction. -Read together with the relevant definitions in
section 101, the right "to reproduce the copyrighted work in copies
or phonorecords" means the right to produce a material object in
which the work is duplicated, transcribed, imitated, or simulated in
a fixed form from which it can be "perceived, reproduced, or
otherwise communicated, either directly or with the aid of a machine
or device." As under the present law, a copyrighted work would be
infringed by reproducing it in whole or in any substantial part, and
by duplicating it exactly or by imitation or simulation. Wide
departures or variations from the copyrighted work would still be an
infringement as long as the author's "expression" rather than merely
the author's "ideas" are taken. An exception to this general
principle, applicable to the reproduction of copyrighted sound
re-cordings, is specified in section 114.
"Reproduction" under clause (1) of section 106 is to be
distinguished from "display" under clause (5). For a work to be
"reproduced," its fixation in tangible form must be "sufficiently
permanent or stable to permit it to be perceived, reproduced, or
otherwise communicated for a period of more than transitory
duration." Thus, the showing of images on a screen or tube would not
be a violation of clause (1), although it might come within the scope
of clause (5).
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Confusing isn't it?
The House and Senate *TRY* to state that it is against the law to use
any ideas and/or expressions of copyrighted work. Then of course,
they go and refute themselves in the excerpts on Section 107.
** A good argument for fanfiction on the internet is the fact that
the internet at LARGE is transitory. No matter how long a document
has been online, a virus and/or hardware failure can erase it
forever.
On the other hand, a book and/or movie and/or computer software
take a bit more to destroy. You would have to burn every book
published, destroy every video tape as well as every CD or disk
ever created.
-- Rather depressing thought isn't it?
b. SECTION 107
Section 107 is by far, subject to almost as much interpretation as
the Bible itself is.
By one interpretation, Section 107 allows an independent party (in
this case the fanfic author) to use the copyright owner's ideas and
expressions in the following manners: for criticism, for commentary,
for news reporting, for research and for educational purposes.
In all intents and purpose, fanfiction can be argued as being any of
that. That argument, unfortunately, only holds as much weight as your
lawyer can GIVE IT.
Of course, it doesn't end there. The House (of Representatives) and
the Senate have both defined and confused the issue of Free Use
further.
** As a repeat, it can be argued that the Copyright Law is law, and
what the House and the Senate say is not. But since THEY make and
change the laws in the first place, I'd favor their definitions.
#1. Excerpt From The US Copyright Office Circular 21
** The following excerpts are reprinted from the House Report on the
new copyright law (H.R. Rep. No. 94-1476, pages 65-74). The
discussion of section 107 appears at pages 61-67 of the Senate
Report (S. Rep. No. 94-473). The text of this section of the
Senate Report is not reprinted in this booklet, but similarities
and differences between the House and Senate Reports on particular
points will be noted below.
- Even the Senate and the House can't agree on it
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House Report: Introductory Discussion on Section 107
| The first two paragraphs in this portion of the House Report |
| are closely similar to the Senate Report. The remainder of |
| the passage differs substantially in the two Reports. |
SECTION 107. FAIR USE
General background of the problem
The judicial doctrine of fair use, one of the most important and
well-established limitations on the exclusive right of copyright
owners, would be given express statutory recognition for the first
time in section 107. The claim that a defendant's acts constituted a
fair use rather than an infringement has been raised as a defense in
innumerable copyright actions over the years, and there is ample case
law recognizing the existence of the doctrine and applying it. The
examples enumerated at page 24 of the Register's 1961 Report, while
by no means exhaustive, give some idea of the sort of activities the
courts might regard as fair use under the circumstances: "quotation
of excerpts in a review or criticism for purposes of illustration or
comment; quotation of short passages in a scholarly or technical
work, for illustration or clarification of the author's observations;
use in a parody of some of the content of the work parodied; summary
of an address or article, with brief quotations, in a news report;
reproduction by a library of a portion of a work to replace part of a
damaged copy; reproduction by a teacher or student of a small part of
a work to illustrate a lesson; reproduction of a work in legislative
or judicial proceedings or reports; incidental and fortuitous
reproduction, in a newsreel or broadcast, of a work located in the
scene of an event being reported."
Although the courts have considered and ruled upon the fair use
doctrine over and over again, no real definition of the concept has
ever emerged. Indeed, since the doctrine is an equitable rule of
reason, no generally applicable definition is possible, and each case
raising the question must be decided on its own facts. On the other
hand, the courts have evolved a set of criteria which, though in no
case definitive or determinative, provide some gauge for balancing
the equities. These criteria have been stated in various ways, but
essentially they can all be reduced to the four standards which have
been adopted in section 107: "(1) the purpose and character of the
use, including whether such use is of a commercial nature or is for
non-profit educational purposes; (2) the nature of the copyrighted
work; (3) the amount and substantiality of the portion used in
relation to the copyrighted work as a whole; and (4) the effect of
the use upon the potential market for or value of the copyrighted
work."
These criteria are relevant in determining whether the basic doctrine
of fair use, as stated in the first sentence of section 107, applies
in a particular case: "Notwithstanding the provisions of section 106,
the fair use of a copyrighted work, including such use by
reproduction in copies or phonorecords or by any other means
specified by that section, for purposes such as criticism, comment,
news reporting, teaching (including multiple copies for classroom
use), scholarship, or research, is not an infringement of copyright."
The specific wording of section 107 as it now stands is the result of
a process of accretion, resulting from the long controversy over the
related problems of fair use and the reproduction (mostly by
photocopying) of copyrighted material for educational and scholarly
purposes. For example, the reference to fair use "by reproduction in
copies or phonorecords or by any other means" is mainly intended to
make clear that the doctrine has as much application to photocopying
and taping as to older forms of use; it is not intended to give these
kinds of reproduction any special status under the fair use provision
or to sanction any reproduction beyond the normal and reasonable
limits of fair use. Similarly, the newly-added reference to "multiple
copies for classroom use" is a recognition that, under the proper
circumstances of fairness, the doctrine can be applied to
reproductions of multiple copies for the members of a class.
The Committee has amended the first of the criteria to be
considered-"the purpose and character of the use"-to state explicitly
that this factor includes a consideration of "whether such use is of
a commercial nature or is for non-profit educational purposes." This
amendment is not intended to be interpreted as any sort of
not-for-profit limitation on educational uses of copyrighted works.
It is an express recognition that, as under the present law, the
commercial or non-profit character of an activity, while not
conclusive with respect to fair use, can and should be weighed along
with other factors in fair use decisions.
General intention behind the provision
The statement of the fair use doctrine in section 107 offers some
guidance to users in determining when the principles of the doctrine
apply. However, the endless variety of situations and combinations of
circumstances that can rise in particular cases precludes the
formulation of exact rules in the statute. The bill endorses the
purpose and general scope of the judicial doctrine of fair use, but
there is no disposition to freeze the doctrine in the statute,
especially during a period of rapid technological change. Beyond a
very broad statutory explanation of what fair use is and some of the
criteria applicable to it, the courts must be free to adapt the
doctrine to particular situations on a case-by-case basis. Section
107 is intended to restate the present judicial doctrine of fair use,
not to change, narrow, or enlarge it in any way.
---------------------------------------------------------------------
And you thought the issue couldn't be confused further.
What this rather long-winded discussion does, is add parody to the
list of possible fair uses. It also states that while not-for-profit
use of copyrighted material isn't necessarily fair use, it is a very
good argument for it.
Meaning: With a good lawyer, you may at least have a decent case if
you have neither profited from your fanfiction nor have you adversely
affected the copyright owner's potential market.
Unfortunately, that doesn't make it legal. Then again, it doesn't
necessarily make it illegal either.
3. IS FANFICTION LEGAL
There is no 'yes' or 'no' answer.
On one hand, it is illegal to reproduce a copyright owner's ideas
and/or expressions in any shape, form or fashion.
On the other hand, it is perfectly legal to use said copyrighted work
for criticism, research, parody, comment, review, education and news
reporting.
It is up to the public's interpretation, as well as the copyright
owner's and the court's, to determine whether it is against the law.
Unless the Government passes a new law concerning the legality of
fanfiction at large, the question of legal or illegal will remain
unanswered.
4. CAN I BE SUED
Of course. You can be sued for ANYTHING.
In all cases to date, if a copyright owner is actually considering
you worthy of a lawsuit, you will receive some sort of warning to
cease and desist.
What follows is your decision. You can remove all traces of the
offending material from 'public' forums or you can go to court.
Whether you win or lose said lawsuit depends on a variety of factors:
(1) Whether you have a good lawyer or not
(2) Whether the copyright owner has a better lawyer or not
(3) Whether the jury and/or judge LIKES you or not
(4) Whether the jury and/or judge LIKES the copyright owner better
This, of course, is true for ALL court case. Sadly to say, the true
principle of the law and good intentions haven't made much difference
in the judicial system in a long time and that isn't likely to change
just for your little lawsuit.
In the end -- Do you feel lucky?
5. TO 'PUBLISH' ON THE INTERNET
The following are opinions on the validity of fanfiction on the
internet and whether it should be considered copyright infringement.
** If you want to add your opinion to the list: send it to
sainttail@email.com - along with your real name and occupation.
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"Fanfiction is copyright infringement in the case that the owner of
the copyright has not given explicit permission to write such.
Publishing said fanfiction on the net is comparable to reading said
fanfiction to friends on request or distributing hardcopy printouts
to them, similarly on request. It is personal use for the benefit of
a small group of readers. There is no difference between fanfiction
in general, and fanfiction on the Internet, and as in general, the
legality of fanfiction on the Internet is also governed by whether
the owner of the copyright has granted explicit permission to produce
such fanfiction."
Samy Merchi, undergraduate student of English at the University of
Turku, Finland.
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6. WOULD ANY COPYRIGHT OWNER LIKE TO ADD THEIR STANCE ON FANFICTION
If anything, the fanfic community at large, would like to hear what
the copyright owner's stance on this shaky area is.
If you are a Commercially Published Writer, or a Representative of a
Company owning one or more Copyrights, we'd very much appreciate
hearing your stances on fanfiction in general. (it's always nice to
hear from both sides of the fence whether you're on one side or the
other or not at all)
If so, please send your opinion to sainttail@email.com along with
permission to post your opinion (without alterations except for
fitting into the FAQ's format) to this FAQ.
7. THE USE OF 'FAIR USE' IN THIS FAQ
Whether you've noticed it or not, this FAQ is a wonderful example of
Fair Use. Excerpts from not only the Copyright Law have been used,
but excerpts from one of the US Copyright Office's Circulars (which
are excerpts in themselves) has been used as well as definitions from
Random House's Webster's College Dictionary.
And it's all for an educational use. Thus, even with an average
lawyer, I'm liable to win any lawsuits that may be raised against me.
Don't you just love the judicial system?
8. THE FAIR USE OF THIS FAQ
Anyone reading is more than welcome to pass and or repost this FAQ in
its entirety to whomever or where-ever they see fit on the internet.
Should anyone plagiarize it (say they wrote it when they did not)...
well let's just say Section 106 shall come into play.
Please, do NOT alter any of this FAQ without consulting with me
(sainttail@email.com) first. It would be counter-productive for it to
lose some of its meaning by 'well-meaning' alterations.
Also, please consult with me (sainttail@email.com) if you would like
to use this FAQ for something other than educational uses on the
internet.