Author Topic: Fanfics and Copyright Infringement  (Read 13992 times)

sirana

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Fanfics and Copyright Infringement
« on: February 06, 2007, 01:22:39 PM »
We had some discussion about copyright infringement in the topic of the story "The amazing Spider Girl" and so we could take this a bit further without hijacking the post, I created this one.

What I would like to discuss is something kmmrlatham said

I'm glad someone wrote this story and opened up the copyright/trademark issue to the forum.  I was was contemplating a story that started out "Spider-Man and the Lone Ranger walk into a bar..." but decided not to get caught up in any legal/ethics concerns.

Now this really strikes me as sad, that someone doesn't tell a story he would like to tell because he is afraid that it may be copyright infringement.
Since the actual legal situation is pretty tricky and we had some disagreements over these issues regarding the original story  ;D I'll leave that aside and just focus on the ethical side. What extent of using copyrighted characters would be ok in your opinion and when does it become questionable?


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Re: Fanfics and Copyright Infringement
« Reply #1 on: February 06, 2007, 02:53:23 PM »
It's a hard line to walk.
I think that, so long as no profit is derived, you can use the characters and touch on the stories all you want.
But the second you start profiting monetarily from it, then it's unethical and you need to look into licensing.
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Swamp

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Re: Fanfics and Copyright Infringement
« Reply #2 on: February 06, 2007, 03:11:03 PM »
I appreciate this post, especially since it is based on something I mentioned.  I might mention that another reason I didn’t pursue the Spider-Man/Lone Ranger story idea was because I couldn’t fit the story I wanted to tell into the 300 word limit of the specific contest for EP (a problem I had with several story ideas).

Back to the copyright/ethics thread, as I was considering my story I went back and listened to Escape Pod episode 24, The Death Trap of Dr. Nefario by Benjamin Rosenbaum.  Great stuff!  It is quite obvious that the Bruce and Dick in this story are Batman and Robin, but the author never uses those designations or any other to specifically identify anything in the DC universe.  It becomes the charm of the piece.

What I was planning in my story was to use the actual characters of Spider-Man and the Lone Ranger as members of an Agency of Heroes from different eras seeking to recruit a new hero from the future.  I thought the banter between the two would be fun and would give me a chance to create my own hero from the future.

While I could have used some fancy hand-waving words to explain that they were from different fictional dimensions or what not, the direct use of these characters seemed like a bad legal/ethical decision.  Basically it would have been a fanfic without permission.

I assume if one could get permission to use the characters from the copyright holders, all would be fair, but permission from Marvel and whoever owns rights to the Lone Ranger seemed unlikely.
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Re: Fanfics and Copyright Infringement
« Reply #3 on: February 06, 2007, 06:56:53 PM »
use #standard_disclaimer(I'm not a lawyer)

The use of trademarked and copyrighted characters in fanfic is a matter of "Fair Use".  I'd suggest doing some research on it.  Stanford has a website dedcated to Fair Use issues:

http://fairuse.stanford.edu/
http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/index.html

Copyright is a "good thing" that has been abused by major corporations, in my opinion.  The more familiar people become with the legal code and case law, the more powerful copyrights and trademarks can be to the avergage Joe and the less likely it will be that we will lose our rights in the name of keeping The Mouse from entering the public domain.

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Re: Fanfics and Copyright Infringement
« Reply #4 on: February 06, 2007, 09:42:56 PM »
I'm pretty sure it's not actually fair use.

McCaffrey could have gotten the Pern sites shut down, but instead forbade mention of her characters. Other people don't enforce, but could.

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Re: Fanfics and Copyright Infringement
« Reply #5 on: February 06, 2007, 09:55:51 PM »
The use of trademarked and copyrighted characters in fanfic is a matter of "Fair Use".  I'd suggest doing some research on it.  Stanford has a website dedcated to Fair Use issues:

http://fairuse.stanford.edu/
http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/index.html

Can you point us to a page on Stanford's site that supports your assertion that fan fiction is protected under fair use?  Because I just did a search of their site and it didn't come up at all.

I know about fair use, and I know about fan fiction.  I know people who write fan fiction.  They disagree with you.  The consensus opinion of smart fan fiction writers is that what they're doing is not permissible under copyright law, but they do it anyway.  And the standard response of smart property owners is to ignore it as long as it doesn't compete with their business.  There's a broad culture there based on informal rules and tacit understandings -- and fanfic writers who break those rules are shunned by their community long before the property holders even have a chance to notice.


Quote
Copyright is a "good thing" that has been abused by major corporations, in my opinion.  The more familiar people become with the legal code and case law, the more powerful copyrights and trademarks can be to the avergage Joe and the less likely it will be that we will lose our rights in the name of keeping The Mouse from entering the public domain.

I agree with you.  Which is why, if you have documentation supporting your opinion on fan fiction, I'd really like to see it.  And so would a whole lot of fanfic writers.
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sirana

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Re: Fanfics and Copyright Infringement
« Reply #6 on: February 07, 2007, 03:29:31 AM »
One of the problems regarding the copyright status of fanfiction is that there have not been many actual court decisions on the topic, but in the cases that have been decided the cases were judged against fan fiction.

The first case I found was "Anderson v. Stallone" of which a description can be found here: http://www.chillingeffects.org/fanfic/faq.cgi#QID306

It was a case about someone who wrote a sequel to Rocky IV with the whole cast of the earlier Rocky films in the hopes that it might be made into a movie. The Californian court held that was a copyright violation in Stallone's character.

The other example I found was "Lara's Tochter" (Lara's Daughter), a sequel to the book "Doktor Schiwago" written without the consent of the author which also used the characters depicted in "Doktor Schiwago" . The German Bundesgerichtshof (highest appeals court of Germany) ruled that this was a "Urheberrechtsverletzung" (copyright infringement).
http://www.jura.uni-sb.de/urheberrecht/web-dok/1999022.html (only in German)


So while one can be opposed to this interpretation of copyright law, it seems to be the prevailing legal oppinion that most fan fiction is indeed copyright violation and not covered by fair use.

btw. chillingeffects.com has a pretty good faq that deals directly with the fanfic vs. copyright issue which is more specific than the Stanford Fair Use website. http://www.chillingeffects.org/fanfic/faq.cgi

pkdan

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Re: Fanfics and Copyright Infringement
« Reply #7 on: February 07, 2007, 06:35:02 AM »
Can you point us to a page on Stanford's site that supports your assertion that fan fiction is protected under fair use?

Actually, I can't.  I should have worded my initial suggestion better.  What I mean to say was "some of the rules about using copyrighted materials are covered under fair use", not that one _could_ use it under fair use.  Thankfully, the folks that have commented after me pointed out that for most scenarios, publishing fanfic isn't covered.  I'm sorry for any confusion I might have caused.

Or was it all an elaborate plot to get people to learn more about Fair Use?  *twists moustache*

Again, sorry for poor choice of misleading words.

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sirana

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Re: Fanfics and Copyright Infringement
« Reply #8 on: February 07, 2007, 06:53:55 AM »
Hey everyone.  Reading through some of the comments on one of the story's in the contest got me curious about some copyright issues.  I wanted to continue the discussion in a different forum and ask some (possibly stupid noob) questions about copyright. 

In a creative writing class, I was told that you can use the names of different established characters, movies, music, etc. in reference.  The way Kevin Smith has discussions about Star Wars and comic book characters in his movies.  They're referencing the actual thing, so it's kosher.  A hypothetical example: if I'm writing a story about superheroes that references characters in comic (as characters in comics -- they're not in the DC/Marvel universe or anything -- just the comics themselves) that isn't a problem.  Is this an accurate statement? 

(I thought I'd bring it in this thread, so we don't have seperate copyright/fanfic threads open)

That is exactly what we were butting heads over in the original thread. I would argue that you are save when you only refere to the actual thing, but as I understood them Steven and palimpsest don't completely agree. Any oppinions or further info/reference?

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Re: Fanfics and Copyright Infringement
« Reply #9 on: February 07, 2007, 12:00:38 PM »
Sirana, you beat me to posting that here.  Thanks!  Any other thoughts on this would be much appreciated. 

Also, I mentioned this to some friends and they were sketchy about using the word superhero at all, because Marvel and DC have the word trademarked and are trying to enforce said trademark.  Do I really need to come up with a new word for superhero?  Aren't those words used in the Union Dues stories?  (paging Mr. Derego.  Again :))

jrderego

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Re: Fanfics and Copyright Infringement
« Reply #10 on: February 07, 2007, 12:31:12 PM »
Sirana, you beat me to posting that here.  Thanks!  Any other thoughts on this would be much appreciated. 

Also, I mentioned this to some friends and they were sketchy about using the word superhero at all, because Marvel and DC have the word trademarked and are trying to enforce said trademark.  Do I really need to come up with a new word for superhero?  Aren't those words used in the Union Dues stories?  (paging Mr. Derego.  Again :))

I tend to use Super Hero or Super Heroes rather than "superhero" and I tend to try and use the term as little as possible, prefering "Super".

Here is a good FAQ about the issue -

http://goodcomics.blogspot.com/2006/03/superhero-trademark-faq.html


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fiveyearwinter

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Re: Fanfics and Copyright Infringement
« Reply #11 on: February 07, 2007, 12:44:10 PM »
Does anyone else really dislike fanfiction?

I am not stepping into this discussion to be a troll - I promise. But the connotations of the word cause me to cringe involuntarily. Hijacking characters for ill-fitting love affairs, wrought with poor dialogue and unrealistic scenarios.

As far as it goes - I was always under the impression it was ignored but illegal. That is to say, if fan-fiction ever became bigger than a small community, and if it were in any way commercially viable, the CEOs would unleash the lawyers.

SFEley

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Re: Fanfics and Copyright Infringement
« Reply #12 on: February 07, 2007, 12:59:44 PM »
Does anyone else really dislike fanfiction?

I've never written it, and I barely ever take time to read it, but it doesn't really annoy me.  Yeah, most of it's (to put it charitably) not very strong fiction -- but Sturgeon's Law applies everywhere.  You still get the occasional brilliant work, as you do in any medium.

And yes, inevitably someone will point out, "If a writer's so brilliant, why don't they do write stories in their own setting with their own characters, that they can sell?"  I think that's a fair question, and many fanfic writers eventually do just that.  But I also think "Because they don't want to" is a perfectly legitimate answer.

People write fanfic because it's fun for them.  As long as no one's getting hurt, I consider that sufficient reason to do anything.
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DKT

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Re: Fanfics and Copyright Infringement
« Reply #13 on: February 07, 2007, 01:15:03 PM »
Thanks for the link, jrderego!  I pulled this particular quote out of it:

Q: Does this affect our ability to use the word superhero?

A: Only if you want to make a product that fits into those categories and sell it. So if you want to sell (you can make it for your own personal pleasure) a comic book called "Star Spangled Superhero Stories," you would not be able to. But if you want to refer to your characters as superheroes WITHIN the comic, you can do so. This is what allows DC to refer to their character as Captain Marvel WITHIN the comic, but they cannot use the name Captain Marvel in advertising or as the name of the comic, because Marvel has a registered trademark on that name.


There's also this link within that article, http://digg.com/gaming_news/Marvel_Comics:_stealing_our_language_
written by an intellectual property attorney, which states toward the end:

Finally, "super hero" is not being removed from the public domain (and, in fact, it is trademarked by companies other than the Big 2 comic companies for products from fireworks to beauty creams). If you want to produce a superhero comic book and refer to the characters inside the comic as "superheroes," there is nothing to prevent that act. However, if you put it on the cover of a comic book, then you are infringing upon a registered trademark and legal action could be taken.

So as long as my title doesn't say superhero I'm alright.  That said, I may still trim down the use of the word in my story.  Thank you guys so much for the help.  This was really starting to freak me out!

fiveyearwinter

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Re: Fanfics and Copyright Infringement
« Reply #14 on: February 07, 2007, 01:29:32 PM »
People write fanfic because it's fun for them.  As long as no one's getting hurt, I consider that sufficient reason to do anything.

I agree. I would never go out of my way to degrade or harass someone who's doing what they love. Especially since oftentimes fanfic writers are putting out more words than I do. No one's getting hurt, just so long as I am not strapped down and forced to read it.

Steve, if you start airing fanfiction I'm gonna cry, okay?

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Re: Fanfics and Copyright Infringement
« Reply #15 on: February 07, 2007, 02:55:26 PM »
As someone that's written fan fiction every now and then, it's usually because we see the characters, like the characters, and come up with a story to tell for them. While there is a lot of... "Harry loves Ron, Luke and that slavegirl third from the left in Jabba's palace" and so forth, there are also writers that just want to tell stories with those characters, which I see as a testament to the original writers for making such strong characters. I personally have been bouncing around an idea for a Doctor Who script in my head for months, and I will probably end up writing it.

And no, the Doctor does not hook up with a Dalek. Oh how I weep for your sick, twisted minds.
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fiveyearwinter

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Re: Fanfics and Copyright Infringement
« Reply #16 on: February 07, 2007, 02:59:35 PM »
Actually...now that you mention it, I think that an Adama  / Gaeta / Tigh love triangle is past due...

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Re: Fanfics and Copyright Infringement
« Reply #17 on: February 17, 2007, 09:16:21 PM »
This has been an interesting thread for me, because what I consider one of my better story ideas is somewhat derivative of another work.  I submitted a treatment of a part of this to the 300-word contest, as Thanks for the Memories.  That story is far enough removed from the original inspiration (the film Dark City) that I'm fairly sure I'm not infringing anything with the short version.  However, it makes me reluctant to pursue the larger story as anything but an unpublishable practice exercise.

Once I connect the main character to the movie with a last name, call the aliens "Strangers" or their telekenetic abilities "Tuning," I suspect that's where it would cross the line to infringement.  I could avoid such direct ties, but I think it would be conspicuous.  Not only that, but it seems like a greater transgression to make a story about aliens residing in reanimated human bodeies with telekenetic powers that abduct thousands of people to do memory experiments on them aboard their city-ship and NOT call direct attention to the source of my inspiration.  But I guess 'making sense' it's too much to expect of the law.

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Re: Fanfics and Copyright Infringement
« Reply #18 on: February 17, 2007, 10:09:14 PM »
Once I connect the main character to the movie with a last name, call the aliens "Strangers" or their telekenetic abilities "Tuning," I suspect that's where it would cross the line to infringement.  I could avoid such direct ties, but I think it would be conspicuous.  Not only that, but it seems like a greater transgression to make a story about aliens residing in reanimated human bodeies with telekenetic powers that abduct thousands of people to do memory experiments on them aboard their city-ship and NOT call direct attention to the source of my inspiration.  But I guess 'making sense' it's too much to expect of the law.

Is the core of your idea really that specific?  Is there any way you could take what you consider the interesting part (say, memory transfer for survival) and take it in a totally different direction?
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Re: Fanfics and Copyright Infringement
« Reply #19 on: February 18, 2007, 03:05:32 AM »
Once I connect the main character to the movie with a last name, call the aliens "Strangers" or their telekenetic abilities "Tuning," I suspect that's where it would cross the line to infringement.  I could avoid such direct ties, but I think it would be conspicuous.  Not only that, but it seems like a greater transgression to make a story about aliens residing in reanimated human bodeies with telekenetic powers that abduct thousands of people to do memory experiments on them aboard their city-ship and NOT call direct attention to the source of my inspiration.  But I guess 'making sense' it's too much to expect of the law.

Is the core of your idea really that specific?  Is there any way you could take what you consider the interesting part (say, memory transfer for survival) and take it in a totally different direction?


None of these elements are really original.  You'd be copying from a copy essentially. By re-arranging things a little, you could make it appear like you got these ideas from a thousnd different sources.

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Re: Fanfics and Copyright Infringement
« Reply #20 on: February 18, 2007, 04:29:55 PM »
I like the League of Extraordinary Gentlemen approach: there are lots of fascinating characters that are out of copyright -- and clearly resonate if they're still well known today -- who can be co-opted for fun F+SF purposes.  I know that doesn't help if there's a particular copyrighted character that you want to write a story for, but it does give you options if all you want to do is save yourself a bit of character-building, or have fun subverting your readers' ideas of who a character is.

See also any of Jasper Fforde's Thursday Next books.

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Re: Fanfics and Copyright Infringement
« Reply #21 on: February 18, 2007, 05:15:23 PM »
Is the core of your idea really that specific?  Is there any way you could take what you consider the interesting part (say, memory transfer for survival) and take it in a totally different direction?

Thanks for your thoughts, Steve.  I guess I'm having trouble separating the viable original story in there from the prequel story that I, as a fan, would love to see on film but (considering Proyas hasn't been terribly prolific or commercially successful) never will.  I'd love to set up all those little "Ah-ha!" moments that explain tidbits from the movie -- what the previous detective saw that made him crazy, why Schreber is collaborating, why one Stranger's vessel is a young boy, how/why the Strangers caused Schreber's scars and heart condition, etc..  It's really tempting to try and fill in the gaps, especially with lines in the movie like:

Quote
I'm sorry.  I don't remember.  None of us remember that.  What we once were, what we might have been somewhere else.

But connecting to the original story is the least original aspect of my idea, and considering how intergral the aura of mystery was to the original film, I suppose anything that tries to explain it further would do a disservice.

Honestly, the far-backstory has been where I've had the most original ideas, so there probably is potential to take the memory transfer aspect in another direction.  I'd still really hate to lose the perspective of the sympathetic cowardly collaborator, but maybe I can take that character somewhere else too.

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Re: Fanfics and Copyright Infringement
« Reply #22 on: February 18, 2007, 07:19:53 PM »
Practical part of the post:
George Alec Effinger wrote a story called White Hats that seems germaine to this discussion.
Quote
Effinger, George Alec, "White Hats"

Arthur and Audrey Trent are mugged on their way home from a Chinese restaurant in New Orleans.  They report it to the police but the police do not expect to find the culprits.  The next morning many heroes of the old radio and film serials begin showing up to help solve the crime (Klaatu and Gort make a small cameo appearance).  After a weekend with the Trent house crowded with supporters or law and order the crime is finally solved by Lamont Cranston.  The Lone Ranger rides off on Silver leaving Arthur Trent with a silver bullet.

Isaac Asimov's Science Fiction Magazine 8:4 April 1984 (pp.26-44)

That Old Funny Stuff: Author's Choice Monthly Issue 1, Pulphouse, October 1989 (pp.27-48)
from here.
In an SF writing class taught by Mr. Effinger he described this story to us.  After dealing with unhelpful police the narator wishes there were actual heroes in this world.  Then Superman shows up at his house.  Of course he is stunned and has him inside.  Then the Green Lantern...The Lone Ranger, Spiderman, Dr. Strange. etc. until his house is full of these heroes and he's run out of drinks and dip and he wishes they would all leave.  The above is based on my memory, and I have no idea if those were the actual heroes used in the story.

Part of the post where I like hearing myself think:
I remember a copyright lecture from college.  The professor said that Disney is known as The Great White Shark in legal circles.  And Peanuts sued a church for putting Snoopy in their bullitin even though the writer was a kid and obviously no one made money from it.  Paramount has decided that the Star Trek fan fic helps build community and strengthens the brand, so the let it happen.  Lucas feels that giving up control of his characters would damage the brand, so he does not allow it.

If your story is close enough to another idea that you are worried about copyright infringement, then I would say come up with a new idea.   Of course nothing is stopping you from writing your own story for fun, and writing anything is better than writing nothing.

SFEley

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Re: Fanfics and Copyright Infringement
« Reply #23 on: February 18, 2007, 08:36:40 PM »
Paramount has decided that the Star Trek fan fic helps build community and strengthens the brand, so the let it happen.  Lucas feels that giving up control of his characters would damage the brand, so he does not allow it.

To be slightly more specific: Lucas has a problem with people using the specific characters from the movies and stories, but fan fiction within the Star Wars setting is thriving and Lucas has explicitly said he has no problem with it, so long as there's no money being made and the characters are original.  There are full-length fan feature films, produced on a shoestring, that look really damn good.  And Lucas has expressed his own appreciation of short films like "Troops" and "George Lucas in Love."  (Though I'm pretty sure that last one doesn't infringe on copyright anyway.)

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