melannen: Commander Valentine of Alpha Squad Seven, a red-haired female Nick Fury in space, smoking contemplatively (Default)
melannen ([personal profile] melannen) wrote2010-06-20 05:33

Fandom, Copyright and Copyleft

This is the handout I wrote for Sunday's panel on fandom and copyright. I am posting it here because it is fifteen freaking pages long and I hope some people will read along on their netbooks and I don't need as many paper copies. But people not at con-txt are welcome to enjoy.

This is html-converted using OpenOffice; I apologize if it's ugly, I cheated because it's, um, 5:30 AM the day of the panel and I haven't slept yet. If you would rather download a .doc file, click this link: Copyleft and Copyright Handout.

Fandom, Copyright and Copyleft

Introduction and Disclaimer

Disclaimer: I Am Not A Lawyer. Some very good and patient lawyer-ish types have checked this over, but IP law is so very specialized and screwy that even a professional IP lawyer might say "that's not my specialty" or "I don't really know" for any given section. And I've put it all in non-legal language, which means I'm oversimplifying some things, glossing over others, and often using terminology that isn't what a lawyer would use. Also, while this intended to be purely informative rather than arguing for a certain viewpoint, it is all presented with a very specifically slash-fandom-focused, pro-transformative-works slant, and a focus almost entirely on US federal law.

None of this is properly cited, either. Half the reason I hang out at slash cons instead of academia is that I really, really hate doing proper citations. There's a list of resources and further reading at the end which I encourage you to look through if you want to know more.

This is intended to be general guidelines so you're not completely lost, and to give a starting point to form opinions; it is <i>not</i> intended to be comprehensive legal advice or the final say on anything.

Intellectual Property Basics

Intellectual property refers to various laws that protect "creations of the mind" or "intangible assets" and allow them to be "owned" by individuals or corporations. Most IP laws effectively give the owner a temporary legal monopoly on publication, use or exploitation of the creations/assets. IP law was intended, first, to encourage the production of intellectual property as creative human effort, and second, to encourage economic exploitation of that property. It has also often been argued that IP law is a manifestation of a natural law that grants "author's rights" to producers of creative works.

US copyright law comes out of English common law, which started out with monopolies granted to stationers' guilds and was codified in 1709. There have always been disputes, from the very beginning, about what IP law is intended to do and what its limits are. The US constitution grants Congress the power "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Over three hundred years, IP law has never, for any period of time, kept up with the advance of technology and creativity, exacerbated of late by the increasing speed of advancements, with the result that, at the moment, it's an even bigger mess than usual..

The primary controversy has always been about whether IP is intended to protect an author's "moral right" to control their creations, and therefore should be as expansive as possible, or as a pragmatic economic measure to encourage the growth and exchange of ideas, and therefore should be as limited as possible. Some countries have the "author's rights" explanation explicitly written into their legal system; the US Constitution deliberately leans in the other direction. Some people object to the use of the term Intellectual Property in general, saying that a) it biases people toward the idea of ownership, and b) it includes several different types of law which are fundamentally very different.

Types of Intellectual Property

The three types of IP which you are most likely to encounter in daily life are patents, trademarks, and copyright.

Patent law applies to ideas, processes, inventions, discoveries, and utilitarian concepts. It is if anything more complicated than copyright law. Patents must be registered and renewed. The only context in which the average internet fan is apt to encounter patent issues is regarding patented software or other computer processes, and even then it is unlikely to effect you personally unless you're running a large complicated website.

Trademarks are intended to protect a business's ability to distinctly identify itself. They apply only to specific, non-generic markers of identity, usually logos, designs and proper names. Some fandom properties (such as Star Wars and Star Trek) have trademarked some proper names and design elements that may be used in fan creations. A trademark may be used by the general public to refer to the trademarked item, as long as there is no attempt to counterfeit the original mark or reduce its value as a unique identity marker (although there are some weird and expanding fuzzy areas. Of course.) The rule of thumb is that you want to use the trademark in a communicative way. In nonlawyer speak: use the trademark because you’re talking about the product, not to label your website/creation. There are no cases I am aware of where fans got in trouble for non-commercial work, under trademark law. If you are worried, this is a case where a deliberate disclaimer that your production is not official and is not intended to be official and these characters and concepts belong to those people over there might actually help. Where fans might get in trouble is in using trademarks in URL’s. Trademark holders have won a lot of these cases where the URL could be a source of confusion, particularly if the website looks at a one second glance like it might be, say, an official Star Wars site, but even where it clearly says it’s not.

Copyright is the IP law that fannish work is most likely to run afoul of. Copyright "subsists in original works of authorship fixed in any tangible medium of expression". Copyright is, in its current form, extremely broad and extremely vague, and it is often impossible to know whether a particular creation is legal or not without testing it in a lawsuit. Most copyright cases that apply to fanworks are settled out of court, which doesn't help clarify the legal perspective. The rest of this discussion focuses almost entirely on copyright law.

How Copyright Works

What is and isn't copyrightable is, well, fuzzy, and the previous court decisions aren't always helpful. There are some (arguable and apt to be ignored anytime) guidelines; here are the ones most likely to be relevant to us:

All material that can be under copyright is inherently under copyright whether it is registered, published, or otherwise publicly acknowledged as being so; being protected is an inborn trait of all creative work in the US.

It must have a "spark" of creativity – so facts or data, like charts or a phone book cannot be copyrighted. However, it takes very little to count as that spark – the manner of organizing facts, for example, might be enough.

It must be in "fixed" form – a poem written in the sand, a spoken conversation, an improvised performance are (probably) not under copyright. However, if they are recorded in any form – even as, say, chatlogs or guitar tabs - they are fixed, and the recordings are under copyright. (Who controls copyright of said recording is … another issue entirely.)

Works created by the federal government are not protected by copyright; thus, the fans who published a lavishly illustrated version of The Presidential Report of the Commission on Obscenity and Pornography had to be prosecuted under obscenity laws rather than copyright.

Ideas, concepts, principles, discoveries, systems, etc. are not protected by copyright. (At what point an element in a creative work is an "idea" rather than a "work of authorship" is … fuzzy.) The catch phrase is that expression is copyrightable, ideas are not.

If a part of a work unlawfully uses material already under copyright, that part of the work is not protected under the second work's copyright. (again, at which point this rule goes into effect is … fuzzy.)

Works where copyright protection has lapsed are no longer protected. Also not as simple as it seems.

What copyright does

Copyright gives the owner of a copyright, and only the owner, certain rights regarding the publication and use of the work. The owner of a copyright has the exclusive right to make or distribute exact copies of a work, to publicly perform or display said work, and to prepare derivative works based on the work. However, this is limited under fair use (of which more later); under the right of an owner of an object to publicly display a legally owned physical object; and under the right to non-public performance. The copyright owner also has the right to assign any or all of these rights to other people; to waive any or all of these rights; these is usually called granting a license. Since most copyright falls under civil law, the owner also usually has the right to choose to pursue or not to pursue any particular violation. Choosing not to pursue a particular violation should have no effect on an owner's ability to pursue future violations, but, again, it's down to an individual court case.

If someone does choose to pursue a violation, they need to register that copyright and take steps to stop the violation. We're going to assume that most people here are more interested in getting away with things than in registering or enforcing their own copyrights, because looking at it from that side simplifies at least this question. If you are planning on registering copyrights or pursuing a violation, I strongly suggest you visit a lawyer who specializes in that work.

A lot of people put more importance on registering or marking copyright than they need to. All work is under copyright whether it's registered or not. However, a copyright must be registered before an infringement suit can be filed over it, and the earlier it was registered the better. Registration is also the only foolproof way to prove date of authorship of an unpublished work.

Also, putting a © or copyright notice on a work no longer has any effect whatsoever on its copyright status. It can possibly have an effect on how much money could be won in an infringement case, but even that is fairly unlikely.

Copyright enforcement is always expensive and frequently messy. Most people trying to stop infringers, even large corporations, hope their opponent will get scared and settle out of court, and this is usually what happens. We'll go into how a copyright claim usually works later.

When rights change hands

As a person who produces fixed creative material, even if it's just comments on a blog, you own copyrights, which means you can sell, lease, or give away any part of the rights listed above. This is handled under basic contract law, which – oh look! - is also often fuzzy. The most legally rigorous contracts are drawn up by a lawyer, signed, and witnessed, but in some circumstances, a private handshake agreement can hold up in court, so be aware that any agreement could be legally binding. Here's some really basic advice:

When possible, keep physical records of any agreements or guidelines you make regarding other people's use of things you've created. Also, be as clear and specific as possible as to what you're agreeing or allowing. If what you’re agreeing to involves something that will specifically take longer than a year (“you may perform this piece for the next two years,” not “you may perform this piece as long as you want,”) then you must write down the agreement.

If money is changing hands, or will at any point, be even more careful. Especially if the other party has a lawyer and you don't.

Your intellectual property passes off as part of your estate after death, with all your other property. If you do not specifically assign it to somebody in particular in your will, it will go to whoever gets the bulk of your estate; in many cases, that's a spouse or close relative(s). If the remainder of your estate is to be split between several people, they all have a share in all of your copyrights, and they all have a certain amount of control over all of your works. (If a will is challenged, some of this might not be true – if you have copyrights that are worth significant monetary value or you suspect will be challenged, consult a lawyer.)

If you work with a co-writer or otherwise as part of a group effort, or allow some of your work to become part of a collection or derivative work, the other people involved also have some control of the copyright. Usually, in cases where several people share rights in a work, the law allows any one person to allow use of the work, and does not allow either person to have veto power over the others.

Creative Commons and similar licenses

A lot of people have been working on ways to reduce the power of copyright by working within the current laws. These mostly consist of standard licenses that allow a creator to deliberately and permanently waive some of their rights. Using these standards can be a very good idea, especially for people who want to support the free exchange of ideas and creativity. However, they are not magic bullets. It's important to understand them if you use them.

Creative Commons

Creative Commons is the most widely known and widely used standard within artistic and literary communities. The goal of creative commons is to expand the ability of artists and creators to build on each others' work, and they do this by making it easy for creators to have "some rights reserved" for their work rather than "all rights reserved." Some websites – including flickr and wikipedia – even have Creative Commons licenses built in to their website, and it recently withstood its first major court test. However it is important to keep an eye on what CC actually does, and that it was not designed with fannish ethics in mind. CC lets you pick your own reserved rights, based on the following four axes:

Attribution – requires that anyone using your work include an attribution of your choosing.

No derivatives – lets you choose whether to allow only verbatim copies, or verbatim copies and derivative works.

Non-commercial – lets you choose whether to allow only non-commercial use, or allow both commerical and non-commercial.

Share-alike – lets you choose whether to require that any copies or derivative work also be under the same license, or an even looser one.

Things to keep in mind if you're considering CC: All CC licenses allow distribution of verbatim copies, which means anyone can archive, repost, or paper-publish your work. Allowing derivatives allows all derivative works, including things like script adaptations and audiobooks. All current CC licenses require that the author be credited – but none of them require that the author be notified. And any work published under CC can never have any of those rights revoked.

If you do want to use CC, visit the CC website and read it over very carefully to make sure you're doing it right and you're doing what you want to do. If you want to use a CC-like license but alter it, you're better off writing your own license rather than trying to use a CC-with-caveats.

Other copyleft licenses

Copyleft is an umbrella term for any modified copyright license that includes a 'share-alike' provision, requiring that any use of the work must be at least as free as the original. Copyleft is sometimes marked by l-in-a-circle or a backwards r-in-a-circle, though this has no legal significance. CC licenses that include share-alike are copyleft.

General Public License, or GPL, is a software license that came out of the Open Source movement that allows a great deal of free distribution and alteration. If you've used any open source software – and you probably have – you've agreed to a GPL (whether you actually read it or not.) A standard GPL is the equivalent of a CC no-attrib, derivs-allow, commercial-use-allowed, share-alike license. It is pretty specific to software, but some people have adapted it, or used it as a guideline, for other creative works – including the Creative Commons folk. Open Source has by far the most experience with these kind of licenses and GPL was one of the first, and most successful, attempts to establish an open standard; it has been widely tested and is very, very enforceable. The AO3 code is licensed under GPL.

Public domain works have no right reserved to anyone. Whether authors have the right to truly release works into the public domain – as opposed to simply granting an extremely permissive copyleft license – is, yep, that's right, up for argument. Copyright is sometimes considered a fundamental human right, and you're not allowed to waive fundamental human rights. If you want to release work into the public domain (and consider it very carefully if you do) you're better off with granting a very permissive license as well, just in case. CC has a license it calls "public domain" which is intended to do this.

If you choose to write your own copyleft license, because this is all under contract law, and because you can choose not to enforce your rights, it is possible to simply write out a statement of what you do and do not allow, make it clear which works it applies to, and it will probably be valid in court, as long as you don't claim any rights you don't actually have. Be as clear and specific as possible; look at things like CC and GPL as models; remember that it might have to stand up not only in legal court but the court of fannish opinion. And because it won't be a standard license, some people, and especially corporate entities, will be less willing to use your works as a result.

Fandom-Specific Issues In Copyright

There are some specific parts of copyright law that fans tend to be far more concerned with than anybody else is. Because there is rarely much money or reputation riding on these fannish uses, very few of them are frequently tested in court, and if you ask a non-fannish copyright lawyer about them, the answer you will likely get is something along the lines of "nobody knows, because frankly nobody cares. The chances you will get sued are tiny. Stop worrying." That said, those answers rarely satisfy fans, and there's enough of a risk that it's worth learning about the things that are most likely to apply to you.

There are different types of fanworks, and other works, that fall into similar gray areas of copyright, but because of the different ways they use their sources, they have different interpretations under the law. Very few of them have been tested in fannish contexts, but many of them have analogous legal issues to non-fannish arts that have been tested – but even in non-fannish contexts, most of these media are in copyright limbo or gray areas. Here's a few of the categories that have ongoing questions both in and out of fandom: fiction, nonfiction, 2-d and 3-d art, fiber art and crafting patterns, photomanips, subtitles and transcripts, translations, filk, mixes and mashups, vids and films, music soundtracks. Pretty much every creative discipline with lots of independent creators is currently in a copyright mess, one way or another – it's not just us. Fans do tend to be more aware of the questionable nature of some of what they do, though.

Possible legal defenses for fanworks

There have been several possible strategies proposed to defend the legality of various fanworks under copyright law. Most of them rest on the idea that fanworks are derivative works, but legal derivative works. According to the Copyright Act, 'a “derivative work” is a work based upon one or more pre-existing works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted.' Derivative works can be legal if they fall under "fair use".

Fair Use

Fair Use is the principle that allows people to use or modify works that are under copyright under certain circumstances without requiring permission or compensation from the rights owners. Many legal defenses of fanworks rest on fair use. It goes back to the idea that copyright is intended to stimulate and foster creation, progress, and dialogue, so in cases where copyright stifles instead, it should be waived. Fair use is complicated and fuzzy, and fanworks almost always fall into the gray areas. There are four principles of fair use written into US copyright law, but nobody is quite sure how they apply in any particular case or what is enough for something to count as fair use; the only way to know for sure is to let a judge decide, and judges haven't been terribly consistent. We'll mention some of the cases later. It’s a four-factor balancing test, with weight given to various factors more or less sometimes. But no case will ever turn on the application of just one factor The first factor – purpose and character – is generally most important. Here's the four factors; your judgment is, frankly, as accurate as anyone's as to how much they apply to any given work, and at what point they come in to play:

The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

The nature of the copyrighted work;

The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

The effect of the use upon the potential market for or value of the copyrighted work.

Some fans put a disclaimer on their works explicitly stating that a work is fair use, or trying to make a case that some of the factors apply. This has no legal use, and any judge examining the case would ignore the author's statement completely.

Other possible defenses

The fair use defense is based on the idea that fanworks are derivative works, and therefore would be violations of copyright if they weren't fair use. A subset defense of fanwork is the idea that most fanwork is transformative as well as derivative – that the fanwork is an entirely new work born from the old, and tha the therefore copyrights of the works it was inspired by do not apply to it.

Derivative works, as most copyright lawyers encounter them, encompass things like T-shirts with copyrighted images, literal translations, and outright plagiarism of text. Whether works that vary much more wildly from the original, or use the original as part of a wider statement, count as derivative, is very much up in the air.

"Transformative" as an alternative to "derivative" to refer to these sorts of works, as adopted by the OTW, comes out of a 1994 Supreme Court decision and the legal argument underlying it which declared that if a work transforms the original – makes something new and different and "adds value" to the original – then that is the very essence of fair use and it's allowed. Transformativity is still in the process of being tested in the courts and the results are wobbly. Transformativity is specifically the best defense for things like vids, photomanips, and possibly even, at a stretch, fanmixes, that use large amounts of unaltered original content. Transformativeness is usually discussed under the heading of the nature and substantiality of the use, the first Fair Use balancing factor. Courts are, as the factor suggests, sympathetic in particular to educational uses. Judicial reception to other forms of creativity, particularly adult content, is of course far more uncertain.

For some fanworks – such as a lot of fanfic and fanart – there is an argument to be made that the parts of the original work being used weren't protected by copyright in the first place. Copyright protects a particular fixed expression of a work rather than the underlying ideas; a story about a boy wizard fighting a dark lord at a school of wizardry does not violate JKR's copyright, nor does a picture of a frizzy-haired girl in a red-and-yellow scarf holding a wand. At what point a fanwork does begin to incorporate copyrighted material is up in the air, though this is, at the moment, the most pie-in-the-sky as a legal defense for most fanfic. Traditionally, visual artists have been given a lot more freedom in this regard, but that's partly because they've been pushing the boundaries longer and harder. Also, some authors trademark the uses of particular proper nouns they’ve created, and use raises considerations noted earlier, entirely separate from copyright fair use.

Real Person Fandoms

Real person fandoms actually have a mostly different and much simpler set of legal issues, and are on much safer ground legally, which is why you see published RPF. You can't copyright a real person. (You can copyright or trademark some aspects of them, but most of the time that doesn't apply in RPF fanworks, and I'm not getting into it here. And copyright does apply to recordings of a real person, such as photographs or videos, the same way as any other recording.) The primary legal issue with public figures is the question of defamation – the accusation that you are making damaging false statements about the person. There are several defenses against a defamation action:

The statement was not intended as a statement of fact, or the statement did not actually affect the person's reputation – this is why disclaimers are more important on RPF than FPF; a disclaimer as simple as "this is fiction" could be a valid defense in a defamation case. Similarly, obvious fantasy – wingfic or sex pollen – or distribution that makes it clear it isn't intended to be taken as truth can be defenses.

The statement wasn't harmful to the person's reputation, or the statement was in fact true – these would not be the wisest strategies to use when defending a real person slash fic, but oh would I like to see someone try it.

The person is a public figure – US copyright law (almost uniquely) allows far more leeway when talking about a 'public figure', and defines 'public figure' quite broadly; pretty much anyone fandom writes RPF about is a public figure under US law. For a public figure to win a defamation case, they have to prove you were deliberately, knowingly, recklessly, and with malice spreading damaging falsehoods, which is generally hard to do.

There is also a potential claim for false light, which is basically what it sounds like – placing a person publicly in a false light in a way that would be offensive to the reasonable person. The difference between false light and defamation is that inaccurate information that doesn’t rise to the level of reputation destroying is enough for false light. False light does, however, require much broader dissemination of the falsehood than defamation. Internet postings have been enough in other contexts. The scary thing about false light is that intent doesn’t matter, and whether you know it’s false doesn’t matter. Again, though, a clear disclaimer seems the most useful step to take.

Works Not Under Copyright

Works in the public domain are free game to do whatever you want with. However, determining which works are in the public domain can be tricker than it looks. The basic guideline is that anything older than Mickey Mouse is public domain, and anything younger you need to be careful with (because Disney is willing to bribe the government as much as necessary to keep Mickey protected forever.) However, some works newer than Mickey are public domain, because before the 1970s it was a lot easier for works to go out of copyright; and some works apparently older than Mickey may be partly under copyright, or may be in a state of questionable copyright, due to the fact that our system is screwed up and overcomplicated and derivatives of public domain works may have copyrights that somehow poison the original. Your safest bet is to only assume a work is public domain if some group with the time and financial resources to properly do the legal checks has already done the work for you.

If you're writing based on a source that is under a CC or copyleft-type license, or explicitly allows derivative work in some other way, make sure you understand what rights the license grants and what legal standing it has. Somebody using such a policy is probably already groovy with fandom, but that doesn't mean they understand their own license, or will react well if they perceive someone as violating it.

Copyright and the Internet

There are some legal issues that are specifically related to internet publication. The one you've heard about most is probably the Digital Millennium Copyright Act.

Basics of the DMCA and takedown notices

The DMCA was intended to make it possible to enforce copyright on the internet while still making it possible for ISPs and webhosts to operate reasonably without constantly policing their users. It basically says that as long as a service provider or host takes down any content that they are told is infringing copyright, they aren't liable for any damages done while the infringing content was available.

If someone makes a DMCA complaint to a service provider, they have made a statement under penalty of perjury that they believe content infringing a copyright control has been hosted on a site's servers. The host is then required to send the person who uploaded the content a takedown, notice, telling them to remove the content. A repeat offender is required by law to be banned from the site. However, once the content has been taken down, the person who received the takedown notice has the right to send a counter-notification stating that they do not believe they violated the law; the copyright owner then has ten days to file a lawsuit against them. If they don't file the lawsuit, the content can go back up.

Dreamwidth's DMCA policy, at, is an excellent demonstration of the bare minimum a service provider is required to do under DMCA. However, a lot of websites and providers do far more than the bare minimum, because it's both easier and safer for them, and it's very easy for the balance to tip way too far toward the copyright claimant's side in a variety of ways. Unfortunately, if a site has a policy regarding complaints, there's nothing you can do legally, regardless of whether it goes beyond legal requirements; your only recourse is to try to get the site owners to change their policies. One way DMCA can often trip up fans is that, at various parts in the process, legal names and other identifying details must be revealed to various people.

Many websites and hosts have copyright-related rules that go well beyond what is required by US law. Again, you just have to abide by the site policies; they have the right to set their own TOS. Also, if a site is outside the US, it may have laws from other countries to contend with. Be aware of that possibility and make allowances.

A Little Bit About Filesharing

Filesharing and pirated source is an issue that, while not as inherently fannish as fanfic and fair use, is something that a lot of fans run into in the course of their business. There are some legal (and ethical and economic) arguments to be made for some kinds of filesharing, but they're not really in the intended scope of this panel, and they are mostly far more involved than the defenses of transformative work. In general, the only fair use defense for distributing a completely unaltered portion of a work requires that you share a minimal amount of the work (there is no rigid rule as to how much is "minimal") and you include some sort of critique, commentary, or educational use with it. Also, legally, hosting a link to a file that's under copyright does not make you liable unless you're also hosting the file itself – but a lot of service providers choose not to make that distinction. Otherwise, stay below the radar, try to be aware of when large copyright owners are pushing enforcement, and plan for what happens when you inevitably get caught out.

Fannish Ethics and the Law

Fandom has a lot of internal ethics and traditions around intellectual property which are not always correlated with the law, but some people believe do have a legal basis, so I'm going to mention a few of these very quickly in terms of their legal aspects.

Many fans are big on never making money from fanworks. "I'm not making money" is not a particularly good copyright defense; it might have an effect on a Fair Use claim, but being non-commercial does not trigger fair use all by itself. Not making money (and more importantly, not being visible about it) might be a protection against people caring enough to sue, but that's not a legal protection. What might cause legal issues is attempting to claim copyright damages regarding a fanwork, or to professionally publish in such a way that you receive money in exchange for a copyright license that isn't entirely yours (as many pro publishing contracts would involve.)

Do you hold copyright for your fanwork? – maybe. You hold copyright to any copyrightable part of a work that is not unlawfully violating some other copyright, but nobody is quite sure what parts those are. So, maybe. You definitely have the right to control verbatim copies of your works, even if they are derivative, even if the person making the copies is the owner of the original work, as long as you haven't used a CC license. And are willing to jump through the legal hoops. And risk the original copyright owner getting annoyed with you as a result.

Plagiarism comes up in fan communities fairly often. Plagiarism is not a legal concept, it's an ethical one – you can't sue over plagiarism. It does, however, often overlap with legal concepts, including copyright law and fraud.

Some authors allow fanfic, some forbid it. This only has legal standing if they have a copyleft-type license that explicitly waives some of their copyright, or something else that resembles a legal granting of rights. Beyond that, it's just a matter of individual ethics and knowing who is likely to try to enforce copyright.

Ideas can not be under copyright, only individual expressions of them. The common knowledge that authors daren't read fanfic of their work because if they read an idea in fic they will never ever be able to use it in canon is almost entirely baseless from a legal standpoint. Unless it can be proven that the author's work was substantially and intentionally derivative of the fic, they would be legally in the clear to publish. More about where this idea came from in the case studies section.

If you want to go pro

If you want to sell work professionally after, or along with, being a fan creator, there's a whole bucket of other issues. I'm going to address just two of these very quickly because they come up in fandom sometimes.

First, the fact that you as a fan might frequently and flagrantly violate other people's copyright has absolutely no bearing on your ability to defend your own original copyrights – each case would be decided on its own separate merits - so being known as a fic writer does not in any legal way limit your ability to sell and defend your original works.

And there's a lot of myth and speculation going around about whether posting an original work online, or posting it locked, or posting an early draft, or having posted a fannish version you scrubbed the serial numbers from, then makes the work professionally unsaleable. The answer to the question is that it depends on who you're trying to sell it to.

Some publishers want "first serial rights" – the right to be the first to publish the work – and some kinds of internet publication may count as first publication, meaning you can no longer sell serial rights to someone else. It's fuzzy as to when that actually applies. Usually, if the internet version was only posted to a small private group, or it was wholly and substantially different from the version you're selling, or you took it down before more than a few people noticed it was up, the publisher you're selling to won't notice, so you're probably okay. And not all publishers care about getting first rights, but if you're a new author sending unsolicited stuff, don't count on finding one of those publishers. Some publishers also want exclusive rights, usually for a limited period of time, which would require you to take down any existing posts for the duration of the license. If it seems like a contract is asking for far too many rights, it probably is – check up on the publisher's reputation, and talk to a lawyer.

Some Important Cases and Current Issues

Because copyright is in such a mess, and because so much of it is based on caselaw, if you want to keep not being lost, you have to make at least a little effort to follow current cases and debates. Think of it as a show you're not interested in but you have to learn about anyway because it ends up on f_w every month. Luckily, there are resources to help keep you up to date easily, which we'll cover in the last section. This section covers a few past cases and imbroglios that are important for fanworks, and some current issues that are being actively argued about and may lead to changes in the law.

Case Studies

Some of these are important caselaw, establishing precedent; some are current cases to keep an eye on; some are imbroglios that never went as far as a judicial decision but that fans like to argue about anyway. One thing you will note that many of these cases have in common is that some or all of the people involved are gratuitously wanky and/or douchebags; the lesson you can take from this is that if you are neither of the above, you are far less likely to get sued.

The Marion Zimmer Bradley Case

Marion Zimmer Bradley is the reason given for why published authors aren't allowed to read fanfic of their own works – because there is a story that MZB once read a fanfic of her own work, later wanted to publish a story herself that was similar, got sued by the fan, had to scrap the novel, and lost months of work.

The actual story is far, far more complicated and very, very arguable. Most importantly, nobody ever filed a lawsuit – MZB's people decided to drop the proposed novel to avoid even the possibility (partly because they were embroiled in several other extremely ugly lawsuits at the time.) The main thing that makes it more complicated is that MZB's people originally approached the fan with an unsolicited offer to buy her copyright to the fanfic, and the author refused to sell; that's what caused them to scrap the proposed book.

If you want to read more about the wanky, wanky details, with all the personal grudges and periphal accusations of despicable behavior and personal tragedy,, Jim C. Hines has a comprehensive, well-linked recent writeup at , and fanlore has a good plural points of view article at ; opusculus put it in narrative form here: .

The Harry Potter Lexicon Case aka Warner Bros. and JK Rowling vs. RDR Books

Another case complicated by the fact that many of the people involved weren't behaving very well in general. HP Lexicon was a website that essentially indexed the Harry Potter books, with some added commentary; JKR knew about the site and did not openly disapprove. However, when the site's owner tried to turn it into a commercial paper book, she sued. RDR and SVA – the publisher and site owen respectively – tried to establish a fair use defense, but the case was eventually decided in JKR's favor and an injunction to prevent publication was upheld.

This case does not, however, present a particularly good precedent for fair use cases in general; the decision was based in part on the fact that SVA had used large chunks of verbatim text from the novels with minimal commentary, and the judge specifically held up that companion books in general should still be protected.

If you'd like to read more about this case, it was documented in depth by cleolinda on fandom_wank; the best starting point is the wank wiki entry at . The

The Wind Done Gone aka Suntrust vs. Houghton Mifflin

The Wind Done Gone was a professionally published literally novel that re-told Gone With The Wind from the perspective of an enslaved woman. After the book had won numerous awards, Margaret Mitchell's estate sued. The U.S. Court of Appeals eventually ruled in favor of The Wind Done Gone, declaring it a 'parody' and therefore fair use, using a much wider definition of parody as any work that comments on another work. This case is why some fans will describe their work as 'parody' in disclaimers and other meta.

However, again, it's not clear precedent – the court ruled that the novel should be published, but also that it had caused damage to Mitchell's estate, and Houghton Mifflin eventually paid a large settlement. This was partly due to the fact that, as a retelling of the original events, it included a great deal of very close copying.

Because the case happened just at the start of modern internet fan culture, I haven't found any good fannish-perspective writeups, but wikipedia has the basics and links to some other resources at

60 Years Later: Coming Through the Rye

This is a similar situation to The Wind Done Gone: a professionally published fan novel of a piece of canonical literature, in this case Catcher In The Rye. This case is still ongoing, currently in appeals; the original judge granted an injunction in favor of the owners of Catcher in the Rye, but the fan novel's publishers are currently working on a fair use defense. Keep your eyes on this one. It is partly complicated by deceptive marketing which tried to imply that Coming Through The Rye was an authorized sequel. News coverages seems to be evently split between assuming it's a shoe-in for the plaintiffs and assuming it's a shoe-in for the defense.

There's a good , fairly recent, pro-transformative discussion of this case at the Wall Street Journal law blog at . And keep an eye on the news for updates.

The Hope Poster aka Shepard Fairey v. Associated Press

So that Obama poster that was everywhere during the election, with the simple colors and HOPE printed across the bottom? That was a photomanip of a photo the artist just randomly pulled of the internet without any legal efforts or even notifying the artist. He's currently being sued by the AP, who published what was eventually proven to be the original photo, and he's claiming a fair use defense. This is an import high-profile case especially as regards fan graphics.

It's complicated by the fact that the person who actually took the photo is disputing with the AP over who actually owns the rights, by the fact that Fairey did some lying and destroying of evidence for which he is under criminal investigation, and by the .fact that Fairey sued first. It's hard to say how much impact this will have on fandom until we have an actual decision (unless there's a settlement.)

The most recent news I can find is from the end of May 2010, when the judge implied that Fairey was losing and should settle. There's a blog post at that covers it an is appropriately snarky about the levels of fail and hypocrisy on all sides:

Transformativeness aka Campbell v. Acuff-Rose Music

This is the case that established the Transformative Work concept in US legal precendent. (You will note that fannish discussions tend to call it transformativity rather than transformativeness, the language used in the legal decisions. That's because fans don't hate the English language.

This case involves the rap group 2 Live Crew making a parody of the ballad "O Pretty Woman". They asked to buy a license to use the song from its owners, but when they were denied, they went ahead and made the song anyway, and the owners eventually sued. The cases went through several appeals , with judges in different courts saying that it was clearly fair use and that it clearly wasn't. Eventually the Supreme Court ruled fairly decisively in favor of 2 Live Crew, applying the transformativeness idea that had been previously hashed out in theory.

Wikipedia covers the basics fairly well at,_Inc. ; the precendent has gone on to be used in other cases, and the application of transformativity to fandom is being very widely discussed.

Lenz v. Universal Music Corp

This is a specifically DMCA-related case, in which the court established that a copyright holder must consider each complaint separately – a holder cannot issue en masse takedown notices for content related to their copyrights without individually considering each individual work's fair use merit.

This is important for vidders, as the case was about a copyrighted track synced to video, and to DMCA in general. There's still a lot of indiscriminate abuse of DMCA, but it's heartening that the courts have come down very strongly for the user consistently in this case. The most amusing thing about this case is the fact that, as the lyrics to both songs were printed in full in the decision, they are now available as public domain federal documents.

Wikipedia has a good starting place at

Current Issues In Copyright

There's a lot going on, and many of theses issues are extremely complex, and involve international treaties and non-US law. For this section I'm going to mostly stick to definition of terms; I encourange you to look for more on your own.

ACTA: The Anti-Counterfeiting Trade Agreement is an attempt by large media corporations to do an end-run around all proper law-making procedures in order to get an utterly draconian, and frankly evil, international law greatly increasing the power of copyright holders. After they couldn't get it through as actual law, they tried to do it as a treaty; when they couldn't get it as a treaty, they decided to come up with their own top-secret, accountable to nobody international organization. Negotiations are currently ongoing with world governments to grant this validity. If enough enough of them sign on, we are <i>fucked</i>.

WIPO: the World Intellectual Property Organization is the UN body that is supposedly in charge of managing international copyright law. WIPO is the last body they attempted (and failed) to get ACTA through, which says something about how bad ACTA is, as WIPO is generally on the rights holders' side.

Orphan Works: Works that are under copyright, but the owner cannot be identified, found, and/or contacted. There are currently discussions underway in several countries, including the US, involving establishing ways to declare orphan works to be public domain. This is in principle good, as it expands the public domain, but some of the proposed laws would make it far too easy to declare a work orphan without making much effort to find the owner, thereby opening a route for large companies to essentially take over large numbers of works by minor creators.

Chilling Effect: A term of law that refers for the tendency of people to self-censor out of fear of prosecution, so that the threat of a baseless lawsuit (causing hassle and legal costs) is as effective as an actual lawsuit. Through the Chilling Effects organization, the term has become widely used in discussions of internet speech, especially regarding cease and desist letters and DMCA takedowns.

Common Carrier: A term from common law that describes a person or company who transports goods or services for the general public. In the US, telecommunications corporations are common carriers. Common carriers have certain special obligations (such as non-discrimination) and special rights (such as protection from some types of liability, like the DMCA's 'safe harbor'.)

Net Neutrality: A principle, based on the requirements for a common carrier to not discriminate, that internet providers and local governments be forbidden from restricting in any way what information is transmitted over computer networks, or from charging different rates to different people or companies for the same services. Various freedom of information groups having been fighting for years, alongside the FCC, to get net neutrality formally written into law. As of May 2010, they haven't given up yet.

Resources, Further Information, and Activism Opportunities

This is far from comprehensive, but some good starting points if you want to learn more, stay up to date, or get actively involved.

Organizations and Groups

The Organization for Transformative Works at . A specifically fannish organization that advocates for the legality of fanworks as transformative. Most relevant is their Legal Advocacy Group – which offers advice and help to fans facing copyright challenges – and the journal Transformative Works and Cultures, which takes a formal academic perspective. The legal advocacy group posts with some regularity to the news blog at , not only about the OTW's projects, but about other copyright issues in the news of fannish relevance. If you want to get involved, they're always looking for volunteers!

The Electronic Frontiers Foundation at , an advocacy group working to encourage and protect freedom of information on the internet and other new electronic media.

Chilling Effects at , a group that documents and records cease and desist letters sent as a result of internet communication. A very good place to learn both more about how IP enforncement works and how it actually plays out in the real world, as well as a good place to look up specific incidents.

Center for the Public Domain at Duke University, . Academic resource for questions about intellectual property, public domain, and creative commons.

Public Knowledge, , a DC based public interest group working on copyright and freedom of information issues.

Copynight, , organizes monthly in-person meetups of people interested in fair use, creative commons, and freedom of information. There is a group in Washington DC.

World's Fair Use Day, at , a Fair Use convention held for the first time this year in DC, and hopefully to continue for many more.

The American Library Association's Copyright Advisory Network is at ; they sponsor the DC Copynights.

Links and information

Many of the organizations listed above have great resources and news blogs on their websites. In addition, here's a few places to start:

Metafandom's copyright bookmarks:

A huge list of relevant links courtesy zellieh: .

Elf on Some Copyright Basics, with bonus comics and a good links roundup, written for scans_daily:

Crash Course on Copyright from the University of Texas:

Is Youtube Blocking Your Vids by Francesca Coppa from the OTW is an excellent resource for vidders facing copyright claims, with more good discussion in comments:

The Command Line Podcast: , a podcast by DC-area geek and activist Thomas Gideon that frequently features Creative Commons issues. The February 17, 2010 episode is a recording of the copyright panel from this year's Farpoint, and features Melannen as Girl In Audience Who Talks About Fanfic (a lot):

James Boyle, ,author and columnist on freedom of information and the public domain.

Attribution: The Copyright and Copyleft handout was written by Melannen for Con.txt, June 2010, revision 4.2 ; many many thanks to lightgetsin and scifantasy@jf for providing Lawyer Checks and editorial assistance, and John D. Mason of for his free artists-ask-an-IP-lawyer seminars, though all mistakes remain, of course, Melannen's.

This work is licensed under Creative Commons 3.0 share-alike license , allowing free redistribution, alteration and commercial use as long as the resulting work is also under a Creative Commons share-alike license and the attribution is preserved. If you would like to use under other circumstances, contact melannen at yahoo dot com.

cofax7: climbing on an abbey wall  (Default)

[personal profile] cofax7 2010-06-24 00:30 (UTC)(link)
Wow, what a comprehensive post. I shall bookmark for future reference!