Tue, Nov. 3rd, 2009, 02:14 pm

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). Those interested in this topic may like to read [info - personal] elf's comments on the subject on my DreamWidth post, since she's someone I consider very knowledgeable about this sort of thing (dare I say, immersed in it).
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Tue, Nov. 3rd, 2009 10:51 pm (UTC)
[info]torino10154

I read the post and some of the comments. I don't even pretend to "know" the answer. But my $.02 will be as follows--I can't see JKR or her agents claiming what you've written now belongs to her just because you used her characters.

I also can't see you being able to 'protect' your story beyond claiming pure plagiarism. As crummy as it is to steal someone's plot I can't imagine you could sue them, for example.

JKR's obviously aware of fanfic and hasn't squashed us (yet). I think once this deep in she really couldn't backtrack and insist we cease and desist now. And as long as no one is making money selling fics I think we aren't likely to see any trouble.

Or have I missed the point?
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Wed, Nov. 4th, 2009 07:25 pm (UTC)
[info]elethian

The point was just me asking "um, am I right that they seem to have misunderstood something?" My husband read the post much later than I did and informed me that the OP has since corrected herself to say no, the creator of the original work doesn't somehow have a copyright (produce/distribute rights) over fanworks.

That's what I was addressing here, not the part about fans creating "fanfic" of other people's fanfic or picking up abandoned fic without permission. I think the former is like any fanwork, albeit the "fandom" is quite tiny; you can do it, but the author can also tell you to stop using their original property (whatever the original content may have been in that fic, e.g. OCs and such). The latter I think is a "no" without permission; a fanfic is someone's copyrighted work and you can't just take it and call it yours. (Stealing the idea, i.e., doing a "rip-off", might be something else again. You could call it unethical or sloppy, but it's not illegal as far as I know.)
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Wed, Nov. 4th, 2009 06:30 am (UTC)
[info]the_bitter_word

I doubt that ownership of the derivative work someone else creates without permission is really the important issue for most original authors. I doubt, for example, that JKR would take Vander Ark's disallowed manuscript and try to incorporate it into a reference book under her name.

As I'm sure you know, JKR owns the right to make derivative works, which your fanfic is, and to exercise all other copyrights to derivatives, such as distribution and licensing. The right to make derivatives allows JKR to challenge your work and potentially block its distribution, especially if you are selling the derivative for profit, harming the market for the original, or trying to claim copyright under your own name. Your only recourse would be a fair use argument, for example, if your work either made a scholarly critique or parodied JKR's. Steve Vander Ark failed to persuade a court that his use was fair when JKR sought to prevent his book's initial publication. He subsequently came out with a much modified book.

If JKR were to write a story using the general ideas of your story, the right to write the story is all hers. It never was yours, barring a license, fair use, or her work passing into the public domain. Your story ideas are generally not protectable; only the expression of those ideas is protectable. JKR could arguably be prohibited from using any new characters you created or using your exact words, as this is your contribution of original expression to her work. Still, you couldn't copyright the material you've embedded in an unauthorized derivative work, so you couldn't sue or claim damages. I do not know on what other basis you could effectively enjoin JKR from using your work.

For me, so much art is derivative, forming a cultural conversation at best. Happily, JKR has not prohibited use of her characters or story lines in the overwhelming abundance of not-for-profit fanfic, wrock, video mash-ups, you name it. Many authors are much more controlling of their created universes.

And, I'm not an attorney.

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Sat, Nov. 7th, 2009 03:05 pm (UTC)
[info]auctasinistra

Yes - this is my not-a-lawyer-either take on it. JKR could sue to make you take it down or destroy hard copies or whatever, or conceivably sue for damages - she can not say she has the legal right to call your words her own.
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