#fandom law
A thrilling “where some courts have gone before but it’s awesome every time” ruling out of Los Angeles today, as a trial court found that the mashup of Dr Seuss and Star Trek entitled “Oh, the Places You’ll Boldly Go” is a transformative work, protected by the Fair Use doctrine, and not a copyright infringement.
Salient sections of the ruling include:
“Although Defendants certainly borrowed from Go!—at times liberally—the elements borrowed were always adapted or transformed. The Court therefore concludes … that Defendants’ work, while commercial, is highly transformative.
Plaintiff’s argument that Boldly is a derivative work misses the mark, as a derivative work is not foreclosed from being transformative (or constituting a fair use).”
Page 31 of the ruling discusses the purpose of the Copyright Act, which is seemingly sometimes forgotten by copyright owners: “[T]he primary objective of copyright is not to reward the labor of authors, but ‘to promote the Progress of Science and useful Arts.’ To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work.”
The ruling strongly supports fanworks, follow-on creativity and parodies (even though this work wasn’t one). Yes, it’s only a trial court ruling, and it can be appealed, but it sets out the law sensibly and structurally and hopefully will be upheld if it goes up on appeal.
There’s more discussion of it on Twitter and you can read the entire ruling here.
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So I just read up on some copyright laws and found out fanart and fanfic are technically illegal. Now I’m laughing at the thought of someone getting sued in court for writing smut about their favorite character
THIS IS NOT TRUE!!!!!
Fanworks are not illegal. Most all fanart and fanfic are “transformative works,” which fall under the protection of Section 107 of the U.S. Copyright Law, the statute of fair use. Fair Use allows you to use sections and elements of copyrighted material to critique, expound on, or create using that material as long as you’re creating something new. You can read about fair use here: https://fairuse.stanford.edu/overview/fair-use/what-is-fair-use/. And learn about how to decide if something is fair use using this simple guide of the four factors of fair use: https://fairuse.stanford.edu/overview/fair-use/four-factors/.
Why is AO3 built by the Organization for TRANSFORMATIVE WORKS???? Because it stands by fair use and creators of new, unique fanworks.
FANWORK IS NOT ILLEGAL. READ ACTUAL COPYRIGHT LAW.
Also know your fandom history Anne Rice used to literally sue our asses over this shit which is why old school LJ fanauthors used to always have the “don’t own not mine just playing” disclaimers on their shit
fwiw, I wrote my thesis on this and fic is neither illegal nor illegal – it’s a legal grey zone that has never been tested in any court (in the US, unless there’s an explicit law about something, we function in a common law system, meaning most of the rule of law in our country is a mish-mash of court precedents, differing and debating between jurisdictions, like this this case). There has never been a lawsuit by the copyright holder of a commercial, fictional work, against someone producing a non-commercial, derivative fictional work; thus, there is no case law about fanfic and we’re all living in the grey zone. There have been a few lawsuits from the copyright owners of commercial, fictional work against commercial, fictional derivative work; one lawsuit from the copyright owners of commercial, fictional work against a commercial, non-fictional derivative work.
But the fanwork we all make every day *may* be protected under fair use; fair use is the right the hire a lawyer, being an affirmative defense, and is rarely tested. The other affirmative defense folks might be familiar with is self-defense in the case of a murder – you say ‘yes, your honor, I did murder him, but it’s ok for x, y, z, reasons.’ Then the trial is about deciding if x, y, and z, reasons are good enough, not if you did the murder (since you had to admit it to use the affirmative defense). Using fair use is like saying, ‘yes, I did infringe on their copyright, but I believe it was acceptable’ and then you have to pay lawyers about it.
I believe that fair use for non-commercial works should be assumed, and the burden should be on the copyright holder to prove harm and infringement, rather than on the non-commercial producer to prove they are covered by fair use.
But, given that there’s no case law, and no explicit laws, tons of high-powered lawyers for commercial content producers like to make stuff up, like to send scary cease and desist letters, like to threaten fans who don’t have the money to fight back. Most major content producers have decided that terrorizing their fans is Bad Business Practice and they’ve stopped calling us all pirates and thieves and are instead madly catering to our whims (often, not always); but that’s a marketing trend, not an indication of any actual change in the status of fan works.
If you’re interested in supporting folks working to change copyright law or protect fans within it, the Electronic Frontier Foundation and the Organization for Transformative Works are excellent places to spend a bit of money, if you’re flush. Our current copyright system isn’t fulfilling its constitutional mandate to encourage the arts and sciences, since some of the most amazing creative work in both spaces is happening in exactly the grey zones we all operate in, which is not how it used to be and not how it should be.
</copyright-soapbox>The thing about law, it’s not some Black Box you push Facts in, and you get a Decision out – it follows certain rules that you can easily study and go over yourself.
Common law countries like the US make this more difficult through the vagaries of a system based on precedent and pontification by judges; civil law countries make this more difficult through judges being biased and on power-trips and refusing to read statutory law in the abstract way it is meant to be read, that is: applied to real life at this moment in time, not in their heads, or a distant past.
(Ya, judges. Can’t live with them; can’t live without ‘em.)
Either way, worry not about your fanfic if you do it the classic way, i.e. if you don’t sell it. There’s a longer reasoning behind that, but I’d consider that the lynchpin reason.
Speaking as one who was affected by the Anne Rice thing when it happened - which was WELL before LJ was a gleam in a Russian bot’s eye - I’d like to clarify that it never got as far as a court of law. She had her lawyer send Cease & Desist orders out to various high-profile members of the fanfic side of fandom. Some of those C&Ds implicated the private businesses of the people involved. Because all of us were poor, we didn’t challenge the C&Ds. Instead we took our stuff off of the websites they knew about and hid the fic away.
Also to be clear: we had warnings on our fic WELL before that (edited to add: I mean the “not mine, no profit made” type warnings). We did that as common courtesy in the fanfic world at the time. And long as I’m going down memory lane and spilling tea along the way, I’m gonna point out that many of us who got those C&Ds also worked hand in hand with Anne, her publisher, and her family business to promote her books and business dealings purely for the love of the fandom. I, personally, left a part-time job at a web company when they asked me to do what amounted to allowing them to profit off of Vampire Chronicles fanfic. When I told them that legally and ethically I could do no such thing they said I could do it or they’d find someone else. I said see ya. (AFAIK they never found someone else).
So the amount of respect those of us in fandom had for Anne’s work and right to profit off of her material was large. What changed in our case was when 1) Anne got some of the rights back to her characters which meant she could profit off of them in ways she couldn’t before and 2) she realized us fans and our fanworks made for GREAT free market research into what her personal company could try to profit off of. The most perfect example of this, and how Anne’s greed ruined so much, was the Talismanic Tour company which was created by fans, worked with Anne and her official biographer to come up with walking tours of New Orleans based on things from Anne’s life and books, fully had Anne’s blessing, then, once it proved successful, Anne gave THEM a C&D and created her own tours at ridiculously jacked up prices.
Karma being what it is, nobody wanted to pay for that bullshit and Anne’s tours ultimately failed. But since she used her lawyers to scare the fan business out of running this then became another example of why Anne is the reason the fandom can’t have nice things.
(Can you tell I have so much tea from the VampChron days? Oh Anne. Bless your fandom-destroying black heart.)
Making this more fandom general, the points to take away here are a few:
- Sometimes it’s not about law, or what the law “should” be. If a well known author, or TPTB from a TV show or a movie studio sent you, personally, a C&D letter for your fanworks, would YOU have the ability to thumb your nose at it? Do you have the resources for that lawyer battle and possible court case? Or are you like us Anne Rice fans were, living meager paycheck to paycheck, and not having it in you to even put up the fight with your ISP, let alone a millionaire’s legal team?
- The blessing of the original creators means nothing. They love us until they don’t. Relying on their goodwill to keep fanworks safe is like relying on the skills of the person driving you around to keep you out of an accident: sure it’s possible, but you wanna put that seatbelt on and hope the car has airbags just in case.
- Appreciate and support those who have done the work to explain WTF fanworks even are, let alone why they should be legally allowed (so let me repeat the earlier links to Electronic Frontier Foundation and the Organization for Transformative Works ). If you can donate money to them, great. If you can’t, at least appreciate and be grateful to the teams of people who took the risk of putting their real names out there (C&Ds are another reason many of us write under pseudonyms) at all, let alone on legal documents, and appeared before the US government in person to defend your right to make fanfic and fanvids.
And all this is why the OTW has its own lawyers.
Really. If you get a c&d because of your fanworks, let us know! If we can’t help you we might know a law school clinic who can!
