FAQ: Questions and Answers

[back to notice text] Question: What are the basics of copyright law that could affect FanFic? Answer: Copyright is a limited monopoly provided by the laws of the United States (title 17, US Code; see the "Copyright" section) to the authors of "original works of authorship," including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works. The 1976 Copyright Act generally gives the owner of copyright the exclusive right to do and to authorize others to do the following: copy (reproduce) the work; distribute the work; perform or display the work; and/or prepare new (derivative) works based upon the work. A sequel to a movie, Rocky IX for example, is a derivative work. When is a work copyright protected? A work must meet a number of requirements in order to receive copyright protection. First, all works are required to be "original" and "fixed in a tangible form." The originality requirement is low and it is normally met as long as the work is not a copy of another work. This means that if I come up with some character that resembles Superman without ever having seen or heard of Superman, then my creation is treated as original. Copyright protection for an original work is instantaneously or automatically secured when the work is first fixed in a tangible form. For instance, if I perform a Klingon death wail in a local park, my performance is not copyrighted since it is not fixed in a tangible form. Someone else may come along and do the same thing the next day. However, if I film the performance, then the film is copyrighted. Remember that ideas, facts and concepts are not copyrightable (since they are either not original or not fixed). A work might also be in the public domain if it was published before 1909 and the copyright has lapsed. So characters like Captain Nemo or Dr. Jekyll are in the public domain and are not copyrightable. Contrary to popular belief, one does not have to register her copyrighted work for it to receive copyright protection. In the United States, registration is only required for bringing a copyright suit. A work must also fit under one of several categories such as literary, musical and dramatic works in order to receive protection. These categories are extremely broad so practically all works can fit under some category. For example, computer programs and may be registered as "literary works" and maps and architectural plans may be registered as "pictorial, graphic, and sculptural works." What rights do copyright owners have? As mentioned above, copyright owners have the exclusive rights to reproduce, distribute, perform or display their works and also to prepare derivative works. These rights, however, only extend to the protected expression (protected expression refers to expression that is original and fixed, as mentioned above). So a well-developed original character, like Scarlett O'Hara, is copyright protected, but a common story line, boy meets girl, is not. For derivative works, protection only extends to new material. For example, imagine that a screenwriter creates a new adventure involving the Zeus, the Greek mythological god. The copyright of this movie might extend to the new plot and any new characters introduced (including new features of Zeus) but Zeus, as ancient mythology, is in the public domain and the screenwriter or her assignee cannot prevent another author from also using Zeus. Who owns the copyright? If the work is protected, then it becomes important to know who owns the copyright. A copyright can be owned by one author (the original author) or by several authors when the work is a joint work. If the work is a joint work, then all authors are co-owners and are treated like tenants in common, each having an independent right to use or grant a "non-exclusive" license. A corporation can also own works produced by its employees as "works for hire," or have creators assign copyrights to it. Thus, fan fiction authors could be dealing with individual authors such as Anne Rice or large corporations such as Fox or Viacom. Now that many fan fiction authors publish on the Internet, copyright holders (regardless of whether they are individual authors or corporations) can easily use search engines to discover their characters being used in unauthorized or unapproved ways. Many owners have tried to stop that use, and as a result, fan fiction authors have received letters telling them to take their stories off-line (See cease and desist letters). Is there an infringement? Even if there is a valid copyright, there is still the question of whether that copyright was infringed.? In order to prove infringement, the owner must show that the fan fiction author copied all or part of the original work (either through direct or indirect evidence), and that the copied elements are protected. In determining infringement, a court will separate unprotectible ideas from protectible expression. Not all elements of a copyrighted work are protectable.? For example, stock characters (the sidekick or the gay best friend) or plots (boy meets girl, aliens attack the Earth) are not protected.? Remember, ideas aren?t protected, but the way they are expressed is.? The more elements from some other work that your work incorporates, the more susceptible it is to a claim of infringement.? Of course, your story may depend on the fact that its about Captain Kirk or Agent Scully for its interest and importance. Besides copying, a fan fiction author might also violate a copyright holder's performance/display right. In the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, the copyright holder has the right to perform the work publicly. To "perform" (or "display") a work means to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible. Again, this is often interpreted broadly. What happens if I'm found to have infringed? If you are found to have infringed, then you might be subject to monetary damages, injunction and even possible criminal penalties. Is there an exception or defense? Even if there is infringement, then the author still may have an exception or defense available to her. For example, if an artist violates the performance/display right, an exception for classroom, religious or nonprofit performances may save her from liability. The most important defense for fan fiction authors, however, is "fair use." Under this doctrine, it is permissible to use limited portions of a work including quotes, for purposes such as commentary, criticism, news reporting, and scholarly reports. It is also possible for authors to create parodies (and perhaps satires as well) from protected works under fair use. For fair use to apply, the use must be for criticism, comment, new reporting, teaching, scholarship or research. Courts consider other factors as well, including purpose of use, nature of the copyrighted work, amount and substantiality of use, and whether there was economic harm to the original author. Whether the new work affects the market for the original work is usually the most important factor. [back to notice text] Question: What are the basics of trademark law that could affect FanFic? Answer: Any word, name, symbol or device which is used (or intended to be used), to identify specific goods and to distinguish those goods from items sold by others and which indicates the source of the goods is eligible for trademark protection. A fan fiction author who writes a new action novel involving Star Wars characters with "Star Wars" in the title could be liable for trademark violation since "Star Wars" is a mark owned and registered by LucasFilm Ltd. Is the mark protected? A mark must be "distinctive" in order to receive legal protection. Many marks are "fanciful". These marks, like "Xena" or "Hobbit" are inherently distinctive. Other descriptive marks like "Greyhound" may indicate a generic thing, the breed of dog, or a specific company, Greyhound Bus Lines. To receive protection, the trademark holder must show that an otherwise generic word, Greyhound or Apple, has acquired a secondary meaning in the eyes of the relevant purchasing public. Who owns the mark? A party claiming ownership of the mark must be the first user of the mark in trade, and then continue to use it thereafter. To use the mark in trade is to use it in way (often "affixing the mark to the good or service) that allows consumers to rely on it to identify and distinguish the good or service. Further, a mark must also be "used in interstate commerce" in order for it to receive federal protection (as opposed to common law or state protection). This requirement is usually easy to meet - shipping goods across (or even within) state lines will often satisfy. For example, Mickey Mouse as a trademark satisfies this requirement since it has been used across the country. What rights do trademark holders have? A trademark owner has the right to use exclusively, or to license the name or likeness of his character to avoid customer confusion and to prevent others from profiting off of the owner's intellectual property. For example, you can't market "Star Wars ray guns", because LucasFilm owns the right to that name, and customers may be confused into thinking that your ray gun is sponsored or produced by LucasFilm. This right is usually geographically limited to first user's area of use plus an amorphous area of expansion. A second user can often use the same mark in a different area with "good faith" (i.e., if the second user didn't know of the first use). Good faith and notice is very hard to prove. The rules change somewhat when a mark receives federal protection. With federal registration, there is "constructive notice of use," meaning a second user is presumed to know of the first user. But if it is the second user who registers the mark and receives federal protection, then the first user is allowed to use the mark in its limited area only. When is there a trademark infringement? The primary question in a case of alleged trademark infringement is whether there is a likelihood of confusion (not actual confusion) for customers. Some factors considered when answering this question include: similarity of appearance between the marks; similarity of sound; similarity of meaning; similarity of purchasers; similarity of marketing channels; sophistication of purchasers; evidence of actual confusion; manner of presenting the mark; strength of the mark; and similarity of products. There is another type of infringement, too, called trademark dilution. Under this doctrine, the owner of a famous mark is entitled to stop you from commercial use of a mark or trade name, if that use begins after the famous mark has become famous and harms its distinctive quality. Walt Disney has used this concept to stop pornographers from using Snow White or Sleeping Beauty in their films. Fan fiction authors who distribute their work commercially may be accused of trademark dilution in addition to other intellectual property violations. Is there a defense against infringement? Like copyrights, there are some defenses available to counter a trademark infringement. For example, a trademark action will not stop an author's deliberate parody of the mark. Also, a mark is no longer valid if it becomes generic or is abandoned. There is also a limited fair use defense under trademarks. What happens if I'm found to have infringed? If no defense is allowed, then injunctions and monetary damages are available against the infringer. Also, if "willful violation" is found, then treble damages might also be awarded. [back to notice text] Question: Why is "piracy" such a big issue now? Answer: Digital technology allows perfect copies and easy distribution of some works. That makes it easier for people to make and get copies of songs or videogames, and more difficult for copyright holders (record companies, etc.) to control the works once they are released to the public. This new technology has changed the way content distributors relate with their customers, and law and business models are just trying to catch up. [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: Is FanFic an illegal act of copying? Answer: If a Fan Fiction author uses copyrighted elements in someone else's work in his/her story, then the fan fiction may be a derivative work. There are many elements of a work that an author can borrow. The law, however, does not clearly define whether fictitious characters, worlds, histories and names are copyright protected. [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: How likely is copying to be found (by a court) and what are the possible remedies? Answer: As mentioned in the legal introduction (see "Is there an infringement?"), a plaintiff must meet certain requirements in order to show that a FanFic author copied protected expression. In order to prove copying, it must be shown that the fan fiction author copied the work (either through direct or indirect evidence), and some of the copied elements are protected and that the "audience" of the work would also find similar elements. Since FanFic authors generally do not deny that characters and settings are borrowed ("copied"), as seen in their disclaimers, it is likely that copying will be found. Then you must raise the defense of fair use. What happens if I lose the case? If the court finds that you unlawfully copied, it has several possible options. First, and most likely, an injunction could be granted to prevent the author from publishing and distributing the FanFic. The infringing materials could even be destroyed. The court also has the power to award monetary damages. The amount of damages would depend on the lost revenue suffered by the copyright owner and possible profits earned by the FanFic author. Generally, the loss of revenue is rare since FanFic does not draw audiences away from the original; rather, FanFic often serves to enhance sales of the original work. And if FanFic is not for profit, then it is unlikely that the author will have any profits to report. Since there is seldom lost revenue and profits, plaintiffs will often go for "statutory damages." This award can be between $200 (innocent infringement) and $100,000 (willful infringement) for each work infringed. [back to notice text] Question: What is contributory infringement? Answer: The other form of indirect infringement, contributory infringement, requires (1) knowledge of the infringing activity and (2) a material contribution -- actual assistance or inducement -- to the alleged piracy. Posting access codes from authorized copies of software, serial numbers, or other tools to assist in accessing such software may subject you to liability. Providing a forum for uploading and downloading any copyrighted file or cracker utility may also be contributory infringement. Even though you may not actually make software directly available on your site, providing assistance (or supporting a forum in which others may provide assistance) in locating unauthorized copies of software, links to download sites, server space, or support for sites that do the above may contributorily infringe. To succeed on a contributory infringement claim, the copyright owner must show that the webmaster or service provider actually knew or should have known of the infringing activity. [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: 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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