The Real Score about Fanfiction and Fair Use

Hi.

I was reading a blog here in the Big Closet, titled "Fan Fiction." (see https://bigclosetr.us/topshelf/blog-entry/79528/fan-fiction )

I was interested in the topic because I knew something about it because it's part of the work that I do, and I thought I could pick up something that may be useful at work next time I have to deal with the same thing again. And, besides, I have several fanfiction stories here.

Anyway, though I am not a lawyer, I've been fielding questions and issues relating DCMA, derivative works and Fair Use for a while now. So I have a fairly substantial knowledge about it, IMHO.

So I thought I'd share what I know about fanfiction and Fair Use (I know my facts are backstopped, but feel free to verify the things I say here if you want - I won't mind, though I ask that, if you disagree, that we not fight or argue, okay? Let's be civil).

 
What the law sez

Strictly speaking, fanfiction, insofar as US copyright law is concerned, is considered a "derivative work."

According to copyright law, it is “an expressive creation that includes major copyright-protected elements of an original, previously created first work. The derivative work becomes a second, separate work independent in form from the first.”

I don't know how it's defined in other countries' laws, but they can't be too far from this, and besides, we're concerned about the laws at home since this is where we post our stuff (the laws of the place where a website is based in - the website being where the material is posted - are usually the applicable laws).

The thing is, only copyright owners have the exclusive right to produce derivative works based on their original, copyrighted works. And copyright is automatic for novels, stories, music, etc, and registration isn't required. An author's copyright to his work is immediate and automatic, unless he specifically says that he is waiving it, or is allowing others to use his stuff, whether via a license or via assignment or via a notice in the publication itself, etc.

So, if the original isn't yours and you didn't get permission to use the original from its creator, then it's legally an infringement on an author's copyright.

 
The one loophole

There is one loophole, of course, and it's called "Fair Use."

"Fair Use" is a doctrine in US copyright law that allows one to use another's work for the "transformative" purpose of either comment or criticism. or parody. (Note, however, that this is a US legal doctrine, so you cannot really claim Fair Use if it's not in the US. Unless they have direct equivalents, which I'm fairly sure they don't.)

US lawmakers, however, made Fair Use general guidelines only, and deliberately so - there are little or no hard and specific rules, and, as a result, there are varied court decisions for the cases that involve Fair Use. The lawmakers who created Fair Use wanted it to be like free speech - they wanted it to have an expansive meaning that could be open to interpretation.

Nevertheless, there are specific things that one must keep in mind:

* There must be a "transformative" purpose - This is very vague, and it is, in fact, deliberately vague.

* Used for Commentary and Criticism - I guess this this self explanatory. But here are some of the guidelines for "commentary and criticism:"

      - quote a few portions of the material only.
      - summarize material vital to the public (like a medical article)
      - quote material for the purpose of teaching it.
      - quote material for use in a legal matter.

The whole point of this is that the public must reap a benefit from your review, or commentary or criticism.

* Parody - Again, I guess this this self explanatory. A parody is a work that makes fun of another work by imitating it in a comical way. Since parody needs to take stuff from the work being parodied, judges accept this as Fair Use.

 
Judging Fair Use

The courts will judge whether something is fair use or not based on four so-called "factors," these being:

* What is the purpose and character of your use - Lawyers will ask two questions. (1) Has the material you have taken from the original work been transformed by adding new expression or meaning? (2) Was value added to the original by creating new information, new aesthetics, new insights and understandings? If it's yes to either question, then it can be Fair Use.

Judging what is transformative—and the degree of transformation—is difficult, and this requires interpretation by a judge to see if the transformation is sufficient enough to say it is Fair Use.

* What is the nature of the copyrighted work - your case is stronger if you copy from factual work than it is from copying from fictional work. Also, the case of copying from unpublished works is not very strong compared to copying stuff from published works.

* What is the amount and substantiality of the portion taken - There are two words here that are important. (1) "Amount" - if you only quote or copy a small part of the material, then it's easy to claim Fair Use. (2) "Substantiality" - If you only copied a small part of it, but the part you copied is what's called the "heart" of the material, then it's not fair use. That's self-explanatory, I guess, but, to clarify - the "heart" is the most memorable part of the material. For example, if you copied the chords from The Rolling Stones song "Satisfaction," and you used the phrase "I can't get no satisfaction," then you have copied the "heart" of the song.

The rule of thumb here is less is always better. But this does not work for parodies, of course. Also, parodies often target the "heart" of a work. So...

* What is the the effect of the use upon the potential market - This is THE big one, of course. If your use of someone's work, or parts of your work affects, or will affect, the income the owner gets/will get from his work, or affects/will affect its value in it's current or future markets, then you can be sued, and it'll be difficult to hide behind Fair Use.

But here's something to think about - the loss of income as a result from a parody can't be a reason to invalidate Fair Use because it's not the same kind of loss when an infringer merely appropriates the work. The financial effect of a parody is not in its potential to destroy or diminish the market for the original but only whether it fulfills the demand for the original.

There is, however, a so-called fifth factor - a factor that the Supreme Court has said isn't included in the Fair Use guidelines:

* The "fifth" factor - are you a good guy or are you a bad guy - Fair use cases often contradict each other. That's because Fair use is almost always based on subjective judgments, which can include morality-based judgements . Though the Supreme Court has already said offensiveness is not a Fair Use factor, a judge or jury will often be swayed if they have been morally offended.

So if your use of the owner's material was grotesque or offensive, and offends the judge or jury, the particulars of whether it follows the Fair Use guidelines becomes academic.

 
Acknowledgements and Disclaimers:

Here's the thing - when you acknowledge or attribute the work you have used to its real owner, this doesn't shield you from infringement. What it does is it protects you from being accused of plagiarism. Do not conflate plagiarism with infringement: though related, these are two different things.

So, just because you attributed the works you quoted, it doesn't protect you from claims of infringement.

What might protect you is perhaps a disclaimer, that you don't intend to commit any kind of infringement, but this will have to be judged by the appropriate legal authority. But like I said, it might protect you.

So, it is useful to have both a disclaimer and an attribution. (By the way, a simple mention that the copied material is from so-and-so book or title or show, or the author or singer or actor or composer is referred to, this is enough to be considered an attribution, although a proper footer or reference or entry in an index is always better.)

 
The MOST important thing

The biggest thing here is that, if the following are true, then a claim of "Fair Use" can be interpreted in your favor: (1) if you are not making money off of, and are not intending to make money off of your "appropriation" of other people's work, and (2) you did not copy the material exactly, or at least made changes or put extra stuff to improve upon it.

But, again, it'll depend on a legal authority, like a court or a judge, to confirm that.

But here's the thing - if the owner specifically tells you to cease and desist from using his stuff, then you have to, regardless of Fair Use or not. Fair use only finds use if the owner makes a claim of infringement, or if you actively defy his cease and desist request.

 
The Real World, and Star Trek

Now, those were all the legal precedents or guidelines or rules. But what about real life?

The first ever published piece of fanfiction was in the Star Trek fan magazine, or fanzine, from the late 60s called "Spockanalia." And the legality of fanfiction has been debated ever since.

But you might ask, what is the real score about fanfiction out in the real world?

There are famous authors who actually embrace fanfiction of their work, most notably J.K. Rowling and her Harry Potter books. She has said that she is actually flattered by these fanfiction works.

There are those who actively fight for their copyrights - one of the classic ones is about the fanfiction called "The Wind Done Gone" which was based on the classic work, "Gone With the Wind," but the courts ruled that the fanfiction was a transformative piece and it therefore didn't break copyright laws because it “provided social benefit by shedding light on an earlier work, and in the process, creating a new one.” 

But there are those fanfiction writers that want to protect themselves in any case. For example, the writer who writes under the pen name "E.L. James" (yep, it's a pen name). She wrote a fanfiction story based off the "Twilight" books under a different pen name, and self-published it on Kindle. This wasn't chased down nor was she sued for it, which just goes to show that it depends on the author if they want to pursue any sort of infringement case - it is not automatic.

Anyway, using her fanfiction as basis, "E.L. James" then wrote her very successful soft-porn "Fifty Shades of Grey" series.

Mindful of possible accusations of infringement et cetera, she made sure Fifty Shades had no direct references to the Twilight books. And, despite their phenomenal success, she couldn't be accused of any sort of infringement.

Being a big Star Trek fan, I like to go back to Star Trek when I am thinking of fanfiction.

There are literally tens of thousands of Star Trek fanfiction out there, and many of them are on sale (see trekkiefanfiction.com, goodreads.com and inkitt.com for some of these) and the copyright owners don't even attempt to stop them.

There are also thousands of Star Trek "fanfilms," a handful of them pretty passable, though most of them are, unfortunately, very cheesy. At the forefront of these cheesy fanfilms was the series called "The New Voyages," which are, themselves, live-action shows whose stories are based off the stories in the fanfiction anthology books "The New Voyages 1" and "The New Voyages 2." these books featured fanfiction short stories from the fanzine called "Star Trek Lives!" The big difference here was that the books were published commercial books whereas the live-action series was not aired commercially, and could only be viewed over the net for free, or downloaded for a token price.

This all changed when the 21-minute 2014 Star Trek fanfilm "Prelude to Axanar" came out.

Around 2014, some Star Trek fans put together a Kickstarter campaign to raise $10,000.00, whose purpose was so they could put together a quality fanfilm even with a low budget. They ended up raising over $100,000.00.

So, using this money, they created a clean and original script, recruited real actors (a couple from the reimagined Battlestar Galactica series, and even Gary Graham who reprised his role of Soval from the Star Trek Enterprise series), made use of high-quality make-up, high-quality costumes, made use of cutting-edge computer and sound effects, and commissioned high-quality original music. Shooting of the film only took two days, with the rest being post-work.

What came out became the legendary short film, "Prelude to Axanar." With its studio-quality production values, high-caliber professional acting, and an imaginative script, it captured the hearts of fans. This was only a "prelude" short-film, because it was intended that they would use it as a vehicle to raise more money to create a full-length feature film - the tentatively-titled "Star Trek: Axanar." They had, in fact, already raised over $600,000.00 after "Prelude to Axanar" came out on the internet, at VIP-only screenings, and at fan conventions. But then CBS and Paramount filed a copyright lawsuit.

The courts ruled that it was indeed a legitimate copyright infringement case, because it made multiple uses of copyrighted components of Star Trek lore, such as the Klingon language, Star Trek iconography, settings, characters, themes, et cetera. (The character Soval, for example, and the actor who played him, were, in fact, the same character and actor from "Star Trek: Enterprise.")

Most fans were protesting these draconian machinations of the "establishment" which they thought was just an attempt to get rid of a legitimate and credible competitor, when all the previous Star Trek fanfilms have been infringing on the same things they claim Axanar has infringed on since the 70s.

The upshot of all of this was that CBS and Paramount came out with very restrictive rules that future makers of Star Trek fanfilms will have to abide by (which practically meant the death of most Star Trek fanfilms), and that the makers of Axanar will now only produce two 15-minute films instead of the intended full 90-minute feature film. (The two 15-minute Axanar movies have yet to be completed, by the way.)

Anyway, going back to the topic of fanfilms...

I think the take-away lessons from the Axanar case and other copyright infringement-fanfiction cases are these four things:

*     Fair Use is a legitimate defense against copyright infringement claims, and if one complies with the factors for Fair Use, one can usually win.

*     Copyright owners do not automatically litigate. In fact, they rarely do, even though it is within their rights to do so.

*     Fanfiction, though technically copyright infringements, are very mainstream now, and almost all copyright owners look the other way when it comes to fanfiction.

*     99% of all copyright infringement cases is about money: if a fanfiction writer isn't intending to make money off their fanfiction, the authors of the original will probably ignore them. Because if they don't, the fanfiction writer will probably be able to successfully defend themselves by using Fair Use. Provided that they did not intend to make money from their fanfiction, of course.

My own opinion is that it's really all about money. Authors won't litigate if there's no money involved. Because, if there's no money involved, and if the quality of the fanfiction is passable, authors will look like extremely stupid, selfish jerks if they are so selfish that they don't share their work. They'll lose fans very, very quickly if they do.

J.K. Rowling herself actually put her finger on the heart of the matter. She said it in a fan-friendly way instead of a very capitalistic way, actually. She said that the thing with fanfiction was “to make sure that it remains a non-commercial activity to ensure fans are not exploited and it is not being published in the strict sense of traditional print publishing.” 

Okay. That's it for me.

I will again end this blogpost with my usual Bobbie-C caveat. The preceding were my opinions only, so everyone is free to agree or disagree. But no need to argue. A free and civil exchange of ideas would be most welcome, however.

 

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