FAQ: Questions and Answers

[back to notice text] Question: What kinds of things are copyrighted? Answer: In order for a work to be protected by copyright, it must be an original creation set in a fixed medium. An artist or author does not have a copyright in material borrowed from someone else. Also, stock characters (the sidekick) or plot lines (boy meets girl) are not copyrightable. The requirement that works be in a fixed medium means certain forms of expression, most notably choreography and oral performances such as speeches, are not copyrighted, (unless they are being recorded contemporaneously). For instance, if I perform a Klingon death wail in a local park, my wail of death is not copyrighted, and someone else may come along and do the same thing the next day. However, if I film the performance, then the Klingon death wail does become copyrighted (since it is now "fixed" according to copyright law). Contrary to popular belief, I do not have to register my copyrighted work for it to receive copyright protection. In the United States, I only need to register if I'm going to sue. [back to notice text] Question: How do companies usually react to FanFic? Answer: 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. For example Universal, which owns the rights to Xena: the Warrior Princess, have yet to go after the numerous copyright violations involving what fans dub the "Xenaverse." The Universal approach is in sharp contrast to Fox Television and Viacom, both of whom resort to harsh cease-and-desist letters against unauthorized Web site creations by fans of such shows as "The X-Files," "Millennium" and "Star Trek." In order for a corporation to win a cease-and-desist order against a FanFic author, it would have to prove that it was suffering financial damage, something that is hard to prove since much of FanFic actually helps boost sales. This has helped motivate companies to go after ISPs. Being caught in the middle of the battle, ISPs will often put pressure on the FanFIc authors in order to avoid liability, a decision which often leaves FanFic authors without any choice but to remove the supposedly offending material. [back to notice text] Question: Is FanFic an illegal act of creating derivative works? Answer: Copyright owners have the right to prepare derivative works based on the copyrighted work. In most cases the right to prepare derivative works is superfluous since when this right is infringed, the right to reproduction will also be infringed. For example, if a FanFic author creates a new story about Darth Vader, the author will have infringed both the derivative right and the right to reproduce that character. As with a violation of the right to reproduction, the plaintiff will also need to show that the FanFic author copied from the original and that the new story is substantially similar to the original in expression. To be an infringement, the derivative work must be "based upon the copyrighted work," which refers to "a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted." Thus, to constitute a violation of section, the infringing work must incorporate some portion of the original work (see Distorted Barbie example below). For example, a detailed commentary on a work or a musical composition inspired by a book would not usually constitute infringements of this right. [back to notice text] Question: When is a trademark issue involved in FanFic? Answer: Trademark law is intended to protect two areas: 1) the protects the public's interest in being able to accurately ascertain the source of goods and services in the market; and 2) to protect a business's good will. Sometimes this takes the form of direct competition between two users of similar marks. Other times, someone who uses a confusingly similar mark may suggest an affiliation with the true mark owner even where there is no direct competition, which might lead consumers to wrongly attribute possible mistakes or poor quality in the good or service. In either scenario, however, it is important to remember that a good or service is involved. Also, the fact that a good or service is free of charge does not necessarily prevent liability. Thus, FanFic authors who actively distribute a good or service could face trademark liabilities. [back to notice text] Question: Do plot synopses and reproductions of photographs infringe on copyrights? Answer: A plot synopsis may or may not infringe on a copyright, depending on whether the court finds that the use of original material is fair use. Photographs are protected by the copyright holder's rights to both reproduce and display his work, and this right may be violated by posting those photographs on the Internet. [back to notice text] Question: What benefit does an author credit provide? Answer: A credit serves as a disclaimer. Strictly speaking, disclaimers do not absolve an infringer from liability. However, disclaimers do serve an important function. Disclaimers explain the purpose and extent of the borrowing author's use and show that they recognize their "borrowing." Thus, disclaimers help appease original authors' fear that they will lose control over their works. The acknowledgment of the original source and ownership of the original work can reinforce the communal aspects of fandom and show that the borrowing authors respect original author's rights.

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