(no subject)

[shyfoxling]

discussion on fanfic and copyright

This doesn't sound right to me. Despite the OP's having "talked to a copyright lawyer" and "looked it up" (re: US copyright law) I think there may be some misunderstanding and also some mixing up of copyright and trademark. My understanding is that when I write a story featuring Harry Potter at Hogwarts or anything else recognizable from the series, yes, I am making use of someone else's intellectual property without permission, i.e., I am infringing on JKR's rights (setting aside for the moment arguments that fanfiction should be considered either 1. parody or 2. transformative enough to be protected also, edit: "use of property w/o permission" =/= "infringement" under all circumstances, obviously, and I didn't mean to imply such; I was referring to this specific kind of use, and whether it is "transformative" or merely "derivative" and therefore typically requiring of authorization remains undecided). But the specific sequence of words I choose to set down my plots and descriptions, isn't that copyright mine as soon as I manifest it, like any other work? For example:

"I was just curious," she continued in the same low voice, and let one corner of her mouth quirk in what she hoped was a cutely mysterious fashion. (She was only eighteen, after all, and just starting to learn the fine art of seducing eighteen-year-old boys, something which was probably easier than she suspected at the time.) "I wanted to... I wanted to see you."

That's an excerpt from one of my Lily/Severus fics. Is this passage magically the property of JKR because I happened to use characters recognizable as her creation? (notice that they are not named here, although they are elsewhere) She (or her agent) can tell me to cease & desist and/or claim damages, but that doesn't transfer the production/distribution rights to her, does it? It just means that her right to dictate how her intellectual property is used trumps my right to produce/distribute my own (infringing) work?

edit: Long story short, I'm correct that those rights don't somehow lie with the creator of the original work, and the OP has since corrected herself (nothing to do with me, I didn't comment there).

Comments

[From: elf]

It's, umm... complicated. And by "complicated," I mean "psychotic."

The key court case here is Anderson v Stallone, pertaining to the script of Rocky IV.

It was strikingly clear to the Court that Anderson's work was a derivate work; that under 17 U.S.C. section 106(2) derivate works are the exclusive privilege of the copyright holder (Stallone, in this case); and that since Anderson's work is unauthorized, no part of it can be given protection.

Anderson attempted to argue that Congressional history of 17 U.S.C. section 103(a) indicates that Congress intended non-infringing portions of derivate works to be protected. The Court disagreed, citing legal scholarship (Professors Melville Nimmer and David Nimmer) and case law interpretations of 103(a).

So. In one case, the courts decided that an unauthorized sequel had no rights. (Or, um, less rights than the author claim. The suit was ended by a settlement, not a final ruling, so exactly what rights do & don't exist wasn't firmly established.)

It's weird to contemplate why *authorization* changes the base nature of how the laws apply. (Especially since how authorization is granted is as psychotic as the rest of copyright law. JKR has said she approves of non-explicit fanfic; is that permission?)

Anderson v Stallone doesn't get much attention outside of Hollywood screenplay meetings (and these days, mostly means that people don't send in unsolicited scripts anymore), but it should, because it seems to make an awfully *BIG* impact on copyrighted material. Like, the recent ruling about the Catcher in the Rye sequel... does A v S mean that Stalinger could get a copy of the book in Sweden, bring it here, and publish it under his own name?

I suspect that the answer would be "umm... NO." A v S was based on a film treatment, not a complete script, and someone else fleshing it out might've been considered reasonable use, where a completed script that was grabbed & made into a movie might not have been.

This is part of why it's crucially important to bring up both the parodic & transformative aspects of fanfic.

I am making use of someone else's intellectual property without permission, i.e., I am infringing on JKR's rights

No. No, no, no.

Yes, making use of IP w/o permission; no, not infringing. There's plenty of uses of someone else's IP that doesn't legally require permission; that's what fair use is. And it's allowed for parodies and transformative works, and for review and educational purposes.

I figure you know this. But it's important not to imply that "use IP without permission" means "infringement." *Most* uses of someone else's IP are non-infringing fair use.

[From: shyfoxling]

It's weird to contemplate why *authorization* changes the base nature of how the laws apply.

Er, because it's definitely okay to use something if the original owner said you can, but may not be okay if they haven't said so? I don't see what's esoteric about that...

And it's allowed for parodies and transformative works

I know parodies and educational and critical use are allowed. My understanding is that "transformative" and "derivative" do not mean the same thing in this context (and that argument still goes on whether fanfic is the former or the latter). Is that not the case?

[From: elf]

Authorization allows the full copyright monopoly package--right to sell, authorize other derivatives (heh, and isn't that a fascinating tangle?), and so on. I'm not sure it (or lack of it) should change the base ownership of the material, which seems like a whacked approach to the concept of author's rights.

If lack-of-deriv-auth means that derivatives are not-copyrighted, then the original copyright owner should be able to publish all the derivatives under any terms they like. And, um. While I think some courts would rule that JKR can shut down fanfic sites if she likes (and others would rule that she can't), I don't think any of them would rule that she can grab the Snarry Games fics and publish them herself.

We don't have a niche for "not copyrighted but not exploitable." We have two kinds of works: Copyrighted, and public domain. Public domain works can be published by anyone. Copyrighted works are only copy-and-distributable by the rightsholder(s).

If fanfic is *not* copyrighted, anyone can grab it & run. If it's all owned by the original creator, as derivative works, that original creator is free to sell it. If, however, it's a shared-copyrighted work--where the original creator owns some portions, and the fanfic author owns the rest--then you can't sell it w/o permission from everyone. Which, I think, is the situation we have now.

"Transformative" and "Derivative" mean something in copyright law that connects almost not at all to what they mean anywhere else. Derivatives (in this context) are lesser creations, a reworking of original material instead of creating something new. Sequels are generally considered to be "mere derivatives." Also translations, audiobooks, and conversions from novel to screenplay or vice versa.

Transformative means making something *different.* How different, is not well defined in law. Rulings involving "transformative" but not parody are fairly rare.

Google’s use of copyrighted images in thumbnail search index was ruled "highly transformative." Google cache was also ruled transformative, even though it creates an entire copy.

More transformative uses. It seems that parody is a *type* of transformative use.

[From: shyfoxling]

authorize other derivatives (heh, and isn't that a fascinating tangle?)

"Recursive", I would have called it. *boggle* That IS pretty bizarre.

I don't think any of them would rule that she can grab the Snarry Games fics and publish them herself.

Not that she would. LOL. I'd wonder how I fell through the portal to Bizarro World if that happened.

It seems that parody is a *type* of transformative use.

That seems logical.