Comments on: Contracts 101: Copyright

By: Madeleine Robins

Madeleine Robins — Mon, 27 Nov 2006 16:09:54 +0000

In practice (and unlike trademark) I don’t think anyone expects you to root out fanfic…unless it’s being offered for sale and someone is making money off of your characters (which is why the Conan Doyle estate is still trying to rootle out Holmes pastiches, despite the fact that most of the canon is out of copyright). Some years ago, when I was working at Tor, one of our authors had to explain (in person and later via lawyers) that it wasn’t being mean and unfair to demand that a fanfic chapbook that was being sold to her fans be taken off the market. The authors were making money using her intellectual property, and when it was explained to them that what they were doing was legally wrong, they went public, trying to persuade the author’s other fans that Big Rich Writer didn’t understand that they were doing this for loooooove, and was a meanie. Author didn’t back down, but was frustrated and miserable throughout the experience. There was plenty of fanfic out there about her characters, but not only was the chapbook being sold, but they sent her a copy!

Even if the work isn’t being sold, if someone sends you a copy of a story they’ve written using your characters, particularly if the quality of the story is really bad, you have to deal with the question of whether you really want to countenance stories written badly in your universe. Will anyone confuse a fanfic using your characters and situations with your own golden prose? Probably not. But that’s what a slippery slope is all about. And indeed, there just isn’t enough case law out there to be definitive.

By: Kathryn

Kathryn — Mon, 27 Nov 2006 10:03:50 +0000

I guess the problem, from what I read on that first site, is that it has never been resolved in court and no publisher wants to be the first in that postion. As you say that turns on the author and what is specifically required in the contract. How they expect you to root out fanfic I don’t know, there are so many private groups online it would be impossible.

In reality does it mean that you have to vocally object to the use of your work in that way?

By: Madeleine Robins

Madeleine Robins — Sat, 25 Nov 2006 17:08:50 +0000

You’re right. Legally the fan fiction battles are really about trademarked characters like Harry Potter or Superman.

The problem, of course, is that in practice no one entirely believes that. If you get into a copyright battle, unless you’re really Simon Pure, a publisher might cut you loose if they feel you haven’t defended your work and they might have to. That fear–on both sides of the publisher/author line–is what gives rise to sentences llke the one above which requires me to defend my copyright until death…

By: Joeri Samson

Joeri Samson — Fri, 24 Nov 2006 03:36:01 +0000

You can’t lose copyright by not defending it. You can lose a trademark by not defending it though.
10 Big Myths about copyright explained 5th myth.
http://en.wikipedia.org/wiki/Legal_issues_with_fan_fiction

By: Madeleine Robins

Madeleine Robins — Thu, 23 Nov 2006 18:59:31 +0000

I think that many publishers/corporations feel that fan fic isn’t a problem because of the profit thing (and because it often perpetuates a brand that might otherwise diminish with time). However, my understanding is that there is some danger for the artist/publisher that a failure to discourage fan fiction and other use of copyrighted material might be construed by a court as failure to “defend” the copyright. It’s a vexed subject precisely because no one knows exactly where the line will turn out to be.

I’ve really enjoyed some pastiches and fiction (I’m a huge fan of Laurie King’s Holmes-Russell books, for example). But I haven’t yet felt the impulse to write fic. Maybe someday…

By: Kathryn

Kathryn — Thu, 23 Nov 2006 17:01:02 +0000

That is really interesting, thank you! I’ve never seen it written out so clearly.

I;ve probably got this all wrong, or from a web myth to amke people feel better about doing it, but I did think that there was a defense for fan fic that has no commercial gain. This is in the strickest sense, I don’t think the web company can even make money for advertising on a page which utilises copyrighted work. Although this might be over-ruled by something like no ‘publication/reproduction of any part (including characters)…’ so display on a website of any sort would be out, but possibly not mailing lists? Otherwise would your vigorous up holding have to extend to someone verbally day-dreaming ‘what ifs’ for your characters and worlds?

Meh, it is a long time since I dabbled in fan ficery any way, it isn’t nearly as satisfying as reading the next installment of a series or working on your own stuff. I can’t really understand anyone wanting to make money from someone else’s work.

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