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Question: What is FanFic?
Answer: Fan Fiction (FanFic) is a genre of amateur creative expression that features characters from movies, TV shows, and popular culture in new situations or adventures.
The vast majority of these stories and poems are written by fans with no commercial interest who disseminate their work over the Internet, email lists, or newsgroups. The word "Fan," however, might not be the most appropriate term since not all FanFic is created by people who are truly "fans" of the original work as the term is traditionally used. Regardless of whether FanFic authors are really fans, owners of original works often do not look favorably upon these works. In response, the owners of the rights often try to stop the creation of FanFic through cease and desist letters and the threat of lawsuit.
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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 This protection is available to both published and unpublished works.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.
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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.
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Question: Can I take a character from a movie, like Chewbacca from Star
Wars, and use it in a play with a very different plot and otherwise
Answer: Probably not.? The people who hold copyright in Star Wars
own the characters as well as the plot, the filmed images, etc. Placing
a distinctive fictional character in a different context or medium is still
copying that character, and therefore infringement. However,
if you use the character for the purposes of parody or criticism you might
be making a legitimate fair use of the character. Note that in one
case involving Walt Disney, Inc. and a comic book publisher, the comic
book publisher argued that his use of the images of Mickey Mouse, Minnie
Mouse and Donald Duck was satirical, and therefore fair use. The
Ninth Circuit rejected the fair use argument, reasoning that the comic
book took more of the images than was necessary to suggest the characters
in the minds of the readers and therefore exceed the bounds of fair use.
See Walt Disney Productions v. Air Pirates, 581 F. 2d 751 (9th Cir.
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Question: What rights are protected by copyright law?
Answer: The purpose of copyright law is to encourage creative work by granting a temporary monopoly in an author's original creations. This monopoly takes the form of six rights in areas where the author retains exclusive control. These rights are:
(1) the right of reproduction (i.e., copying),
(2) the right to create derivative works,
(3) the right to distribution,
(4) the right to performance,
(5) the right to display, and
(6) the digital transmission performance right.
The law of copyright protects the first two rights in both private and public contexts, whereas an author can only restrict the last four rights in the public sphere. Claims of infringement must show that the defendant exercised one of these rights. For example, if I create unauthorized videotape copies of Star Trek II: The Wrath of Khan and distribute them to strangers on the street, then I have infringed both the copyright holder's rights of reproduction and distribution. If I merely re-enact The Wrath of Khan for my family in my home, then I have not infringed on the copyright. Names, ideas and facts are not protected by copyright.
Trademark law, in contrast, is designed to protect consumers from confusion as to the source of goods (as well as to protect the trademark owner's market). To this end, the law gives the owner of a registered trademark the right to use the mark in commerce without confusion. If someone introduces a trademark into the market that is likely to cause confusion, then the newer mark infringes on the older one. The laws of trademark infringement and dilution protect against this likelihood of confusion. Trademark protects names, images and short phrases.
Infringement protects against confusion about the origin of goods. The plaintiff in an infringement suit must show that defendant's use of the mark is likely to cause such a confusion. For instance, if I were an unscrupulous manufacturer, I might attempt to capitalize on the fame of Star Trek by creating a line of 'Spock Activewear.' If consumers could reasonably believe that my activewear was produced or endorsed by the owners of the Spock trademark, then I would be liable for infringement.
The law of trademark dilution protects against confusion concerning the character of a registered trademark. Suppose I created a semi-automatic assault rifle and marketed it as 'The Lt. Uhura 5000.' Even if consumers could not reasonably believe that the Star Trek trademark holders produced this firearm, the trademark holders could claim that my use of their mark harmed the family-oriented character of their mark. I would be liable for dilution.
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Question: What is fair use?
Answer: Copyright law seeks to promote the production and distribution of creative works by conferring property rights on authors. The principle of fair use serves to mediate between these property rights and the constitutional rights of public access and free speech embodied in the First Amendment. Fair use serves an important social function by allowing for the use of parts of creative works for the sake of criticism, commentary, and reporting.
To decide whether a use is "fair use" or not, courts consider:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit education purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and,
- the effect of the use upon the potential market for or value of the copyrighted work.[17 U.S.C. 107(1-4)]
The principles of fair use are invoked when the transaction costs associated with gaining authorization from copyright owners to make use of works is too burdensome in reasonable circumstances. Fair use also permits the reproduction of art and information for the private, noncommercial sharing of those works. Fair use allows for market competitors to use copyrighted works in ways that allow them to extract the public domain aspects of those works in order to develop innovative products.
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Question: Does a cease and desist letter recipient have a duty to remove materials alleged to infringe copyright?
Answer: The cease and desist letter gives its recipient ("you") notice that someone is claiming something you've done or something on your site infringes a copyright. If the materials that are the subject of the notice are in fact infringing, then you do have a duty to remove them, although there may be statutory provisions (DMCA Safe Harbor) that protect you from a lawsuit if the materials were posted by someone else. You may have to give the poster notice of the complaint.
If you do not believe that the materials are infringing, or if you believe that you are making fair use of the materials, you may choose to take the risk of not removing the materials, but a lawsuit might follow in which the complainer tries to prove they they are right and you are wrong. If the accuser obtains a court order, then you must take down the materials.