Fan Fiction and Copyright

Online writer's of "Fan Fiction" need to be really careful of violating copyright. If you don't know, Fan Fiction is (usually) online fiction based on a popular book, tv show, or movie. Star Wars, Buffy the Vampire Slayer, and Lord of the Rings are some of the popular targets of fan fiction writers.

Fan Fiction by it's very nature needs to be very careful because almost by it's very definition it is copyright infringement. Copyright, at least in the U.S., doesn't protect just copying and distributing a work, but it also protects reusing characters created by another author. For instance, J.K. Rowling used international copyright laws to shutdown people using the Harry Potter Character.

You're probably asking why I say this on a blog about blog fiction? Well, the reason is is that 2 of the active fictional blogs are writing fan fiction. In both cases I think both are pushing copyright law to the edge. Captain Picard's Journal and Life in Bear Country. Both of them are based on a TV show.

In spite of these blogs being based on someone else's work there are a couple things that protect the authors from infringing on the original author's copyright. Not being a legal scholar myself, I'll depend on the people at Chilling Effects to interpret the law for me.

1. Fair Use:

   The fair use doctrine says that otherwise copyrighted works may be used for purposes such as criticism, comment, news reporting, teaching, scholarship, or research. To decide whether a use is "fair use" or not, courts consider:

   (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit 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.

   Parody is also fair use.

2. Borrowed World, Not Characters:

   It seems unlikely that a FanFic work would include no previous characters but it is not impossible to imagine. Take Tolkien's "Middle-earth" world for example: this world has been taken without the main characters and has been used in role playing games (RPGs) and video games (see the TSR example below). For these cases, it is important to remember that copyright does not extend to ideas. Therefore, incidents, settings or other elements which are indispensable, or at least standard, in the treatment of a given topic are ideas and cannot be copyrighted. For example, the Court of Appeals for the Second Circuit has held that "elements such as drunks, prostitutes, vermin and derelict cars would appear in any realistic work about the work of policemen in the South Bronx." These "scenes a faire" are therefore unprotected. Likewise, the Seventh Circuit has held that mazes, tunnels and scoring tables are unprotected under the scenes a faire doctrine in video games like Duke Nukem.

3. Non profit:

   If the court finds that you unlawfully copied, it has several possible options. First, and most likely, an injunction could be granted to prevent the author from publishing and distributing the FanFic. The infringing materials could even be destroyed. The court also has the power to award monetary damages. The amount of damages would depend on the lost revenue suffered by the copyright owner and possible profits earned by the FanFic author. Generally, the loss of revenue is rare since FanFic does not draw audiences away from the original; rather, FanFic often serves to enhance sales of the original work. And if FanFic is not for profit, then it is unlikely that the author will have any profits to report. Since there is seldom lost revenue and profits, plaintiffs will often go for "statutory damages." This award can be between $200 (innocent infringement) and $100,000 (willful infringement) for each work infringed. [emphasis mine]
   

4. Apathetic Copyright Holder:

   Different companies have different methods in dealing with FanFic. Some, like Paramount Pictures, see that FanFic could actually help boost their sales and so encourage the writing of FanFic. Other companies are presumably waiting for more business information and legal clarity before making a decision.

What probably protects Captain Picard's Journal is #1. It's fair use. How is it fair use? It's a satire or parody.

Life in Bear Country is another story. It is not a parody. It doesn't have ads on it's website so it's not making any money. So unless the studio that owns the rights to the original material are real A-holes they won't care. Today, though, I noticed something disturbing. Life in Bear Country is printing a book and selling it. Uh oh, it's not a parody and now the author stands to make money off of it.

This really caught me by surprise because i remember from the disclaimer of the original site that:

the staff has a mortal fear of lawyers.

You would think that if they have a mortal fear of lawyers they wouldn't be printing a book based on a tv show without permission. The only thing that may save them is exception #2 from above. She only borrowed "the world". The story and characters are original. That being the case, I still think she's pushing it. I hope for her sake that she got permission or consulted with a lawyer knowledgeable about copyright laws.

My advice to everyone who's writing fan fiction is to be risk adverse. If you're writing fan fiction either make damn sure that it's obviously a parody, or don't make any money off of it. (by selling advertising or otherwise) If you want to make money from writing online, write wholly original stuff for two reasons. First, you won't have to worry about getting sued. Second, if you want a publishing company to take you seriously they'll expect that you can write original stuff.

Oh yeah... one more thing. I too have "a mortal fear of lawyers". Therefore let me add this disclaimer:
The information provided in this blog post is *not* legal advice.