Law, Netiquette and the Fan Fiction Writer

[lwf58]

Fan fiction is a touchy subject with many in the publishing and film industries. This thread is for discussion of how law and accepted but unwritten internet rules of conduct (netiquette) apply to the fan fiction author.

[lwf58]

Fan fiction is a gray area in the laws of most countries. That's because it can be argued that fan fiction falls under "fair use" clauses in the laws, although many professional authors and companies disagree with that interpretation.
The original characters, settings, and situations of manga and anime (or live-action TV shows and movies) are copyrighted on many levels, but the one that concern fans most are the intellectual property rights, because the majority of copyright laws are intended to prevent others from profiting by another's work.
Fan fiction is normally overlooked or permitted by the authors, publishers, and distributors because it's non-profit. The same goes for most doujinshi. It gets stickier when fans try to sell their works. Unless they are doing completely orginal stuff, then they are breaking many kinds of copyrights.
Where creators get peeved by fanworks is when the fans get stupid. There are a few notable incidents where fans wrote a story using the settings and characters of a famous author, and then the author wrote a similar story of their own. In the cases I'm thinking of, the fans then tried to sue the author for "stealing the idea". Authors such as Anne Rice and Mercedes Lackey have issued a blanket prohibition of fan fiction based on their work because of such incidents.
Other authors encourage fan fiction. Eric Flint even collects fan fiction stories he likes and publishes them, paying the fans for their work. (The Grantville Gazette is series of fan fiction stories and fan articles.)
That's why we put disclaimers at the beginning of fan fiction stories. Disclaimers are not there to directly protect the fan fiction author. They are there to reassure the owners of the series that the fan author will not attempt to dispute their rights, and thus they need take no action against the fan. That's why the essential elements of a disclaimer are a listing of the owners of the work their story is derived from, and a phrase saying in so many words that they acknowledge the pre-eminence of the owner's rights.
Something to note is that the Fair Use interpretation of the laws won't protect you if a copyright owner decides to sue. However, it can significantly reduce the penalties the court may impose if the judge agrees that it applies.
As for using another fan's ideas? That gets back into intellectual property. The characters, settings, and original situations don't belong to the fan, but the plot and any original characters do, as does the prose used in the story. By disclaiming, the fan author gives up the right to his or her work if the owners of the series come up with a similar story, but that doesn't apply to other fans. By US law, anyway, the fan has a copyright to his or her work when published. That's why it's wrong to use another person's fan fiction as a basis for your own without permission.
A partial list of professional authors who prohibit fan fiction based on their work is:
The estate of Andre Norton
Anne Rice
David Weber
George R. R. Martin
Marion Zimmer Bradley
Mercedes Lackey
A strange case is J. Michael Straczynski. He apparently demanded that Babylon 5 fan fiction "be clearly labeled or kept off the Internet". I don't understand what exactly that's supposed to mean.
Here are some quotes from an information site:

"If it doesn't have a copyright notice, it's not copyrighted."
* Anything created after April 1, 1989 is automatically protected
* Includes text and images
* Notice strengthens protection, especially in courts
* "Copyright 2002 by William C. Robinson"
"If I don't charge for it, it's not a violation"
* Charging may affect damages awarded but not violation
"If it's posted on a newsgroup or list or on the WWW it's in the public domain"
* Copyright is automatic upon creation
* e-mail, news posts, and original WWW content is automatically copyrighted
* "To have a copy is not to have copyright"
"It's Fair Use"
* The Fair Use exception is designed to allow commentary, parody, reporting, research, and instruction.
* Intent and damage to copyright holder are important in awarding damages
* Fair Use = short excerpts and attribution
* Use for commentary and reply normally Fair Use
"If I make up my own stories, but base them on another work, my new work belongs to me"
* Derivative works belong to the copyright holder
* For example, Paramount owns the right to write Star Trek stories.
* Much fan fiction is a violation
* Parody, however, is Fair Use

[mondu_the_fat]

An excellent link to the legalities of fanfiction:
http://chillingeffects.org/fanfic/faq.cgi
(gist: likely, if you're writing fanfiction, you're violating copyright)
A legalese-free discussion of "fair use"; scroll 2/3rds of the way down the "fair use factors"
http://www.utsystem.edu/ogc/intellectua ... pypol2.htm
(gist: instances where you can violate copyright and get away with it)
Another link on fair use, but with a section regarding the use of disclaimers and crediting the original source:
http://fairuse.stanford.edu/Copyright_a ... 9-b.html#5
(gist: disclaimers look good, but they won't cover your ass if you violate fair use anyway
also, while some people consider parody fair use, this site gives a federal court ruling example saying that it is not)
To the list of authors who prohibit fanfiction, I'll add Laurell Hamilton (author of the Anita Blake series). Anita Blake fanfiction does exist, although just not on the bigger fanfiction sites.

[Drawde]

Two more for the list of authors that prohibit fanfiction:
Anne McCaffery,
and whoever the author of the Callahan's Bar series.
Those are all I can remember of the list MediaMiner had. I looked for it, but couldn't find it.

[camk4evr]

Two more for the list of authors that prohibit fanfiction:
Anne McCaffery,
and whoever the author of the Callahan's Bar series.
Those are all I can remember of the list MediaMiner had. I looked for it, but couldn't find it.

Spider Robinson write's the Callahan's Bar books.
I've read that Mercedes Lackey does allow fanfiction but only if it's posted to certain approved sites,unfortunately, it didn't say which, if any, websites are approved. I think you probably have to be a member of The Queen's Own (her fan club), though.

[PSJD]

the list of authors that prohibit ff on fanfiction.net is:
P.N. Elrod
Raymond Feist
Terry Goodkind
Laurell K. Hamilton
Robin Hobb
Dennis L. McKiernan
Robin McKinley
Irene Radford
Anne Rice
Nora Roberts/J.D. Robb
Archie comics

[Anchoku]

Anne McCaffery had posted on her site she would allow fan fiction if the authors and fics are reasonable. It hadn't been updated for some time, though.
One thing I'd like some clarification on is the subject of fanfic authors proclaiming copywrite and threatening dire consequences for any sort of plagiarism. Something about that just seems wrong.
When writing fan fiction, I try to create an at least somewhat original story using a more respected author's creative elements as the author might have. It requires I do some research to create a reasonable facsimile of those borrowed elements within my own story.
In effect, I am training myself to write by using creative elements pre-made by professional writers. It is much like student artists learning to paint by attempting to copy a photograph or some famous author's work. My point is, fanfic authors are students attempting to copy a master's work. When the student learns enough to create something truly original, then the student has true ownership rights. Until then, the student should only expect professional courtesy from the masters and other students.

[lwf58]

One thing I'd like some clarification on is the subject of fanfic authors proclaiming copywrite and threatening dire consequences for any sort of plagiarism. Something about that just seems wrong.

When you boil it down, it comes out something like this:
When you post a story or drawing to the internet, you automatically have a copyright on your work. This applies to anyone else using your plot, original characters, original settings, etcetera.
However, if you write the story as fan fiction or draw a copyrighted character, it's a "dirivative work", and the owners of the original copyrights automatically own your story or picture if they choose to press the issue.
In other words, you have copyrights and intellectual property rights to your work, except that the owners of what you based it on have rights that supercede yours. So if you say, "that's my story and this other guy who is also a fan author is plagiarizing it", then you're correct; he can't legally or morally do that. He has no rights to your story, characters, or settings at all. But your rights end if the original author or copyright holders decide to take the story, or decide to sue you for copyright infringement.

[mondu_the_fat]

camk4ver: Queen's Own has a list of "approved" fanzines for Mercedes Lackey. She has to be e-mailed for approval of a story (there's a release form)... which is odd, considering that on her website she says she never reads fanfiction from people who send it to her. Maybe her lawyers read it.
Anchoku: Unfortunately, its a gray area. In the case of Mercedes Lackey, she was sued by a fanfiction writer (and won [!], I believe). If a fanfiction author can sue the creator of the original material over plot (which cannot be copyrighted in the first place), you can just imagine how one fanfic writer can cry foul when another fanfic writer (who has no rights to the characters in the first place) "copies" them.

[Ninsaneja]

Aha, but the work is still fanfiction... and the original author has no legal way of gaining anything from it... so a suit for damages or whatever will result in very little.
Also, I personally try to ask for permission first. However, if the posted Email is down I go ahead until asked to stop (Which did happen the first time I tried it, because Slacker just happened to be so slow at updating that he never changed the email posted on his website.)

[Metroidvania]

Aha, but the work is still fanfiction... and the original author has no legal way of gaining anything from it... so a suit for damages or whatever will result in very little.
Also, I personally try to ask for permission first. However, if the posted Email is down I go ahead until asked to stop (Which did happen the first time I tried it, because Slacker just happened to be so slow at updating that he never changed the email posted on his website.)

Slacker's still updating?
It's been what, years now?
Anyways....
If the original author never responds, and you wish to do so, until you've been told to stop, it's your call.
Just be forewarned now that if people feel you're not writing well enough in comparison to the original, you'll get a _lot_ of flames.......as well as flames from fans of the original work who think you're blatantly stealing/plagarizing.......
I'd advise getting another email for responses to any of these stories, as this is one of the reasons Gregg Sharp stopped writing stories.......

[Ninsaneja]

Slacker's still updating?
It's been what, years now?

He's NOT still updating, just sticking around to piss off his fans. He sent me some rude s*** about how I was some arrogant a**hole and how I was stealing and how he wouldn't STAND for it and how he was so gonna SLAP ME DOWN.
So I sent back a polite message, "Please update your website to include your new E-mail as I was unable to reach you. The fic has been removed. Please be more polite in the future" or something, I don't remember the exact wording. I never got a response to that one though - he has an ff.net account like chibislacker or something, that's what he used to contact me.

[TerraEpon]

One thing I'd like some clarification on is the subject of fanfic authors proclaiming copywrite and threatening dire consequences for any sort of plagiarism. Something about that just seems wrong.

There's a difference between plagerizing -- which is directly copying -- and using a credited source.
If I took, say, Destiny's Child and posted it somewhere, claiming it was mine, even if I rewrote it so "Ranma" becomes, oh, "Joe" and other subtle changes -- that's plagerism.
But if someone writes a story that continues it, or is a side story, or whatever, and gives credit that it's based on Fire's work, it's not.
-Joshua

[WG_Writer]

The problem get complex when dealing with international copyright laws. Its easy enough to say in NA this is copyrighted by this person, but what about anime? most anime is copyrighted in Japan and Liscenced in the rest of the world. The only times that a Liscencee can claim copyrights to things it is only liscenced to use/sell is when it can bloat the system with confusion.
If you write fanfiction for a story that the copyright isn't recognized where you are then technically you become the owner.
Netiquette and fanfiction as it relates to copyright is hard to deal within a single country, and although most countries have compatible copyright laws, some don't. for example: If you live in canada, post to a US fanfiction site and write on a Japanese work (Ranma) and the Japanese copyright holders go after you then they can charge you in Canada, US or Japan depending on how they feel about it.
Even the ff.net ban list shows this to a degree. Robin McKinley is the only one on that list that is not a current resident of the US, but that is because she married and moved to England.
The only reason that even fansubbers are threatoned by liscencing is that they are moving what the NA liscencers have the rights to distribute, not for actual copyright infringement directly.
But I do need to point out that it is "Liscenced into NA" specifically to deal with potential problems like that, and this has been a big problem in the past for anime related things. See Transformers G1 Jetfire as a good example. It was "Liscenced" to three different companies, or rather the rights to use the mold were sold to 3 different companies.
Quote from Wikipedia: "Jetfire only saw a few American production runs, as the show the original toy was based upon, The Super Dimension Fortress Macross, was exported to America to become the first third of Robotech. As with other pre-Robotech borrowings from Macross (for instance, Battletech), the licensing situation for the toy became murky with two different companies (Big West and Tatsunoko) asserting exclusive rights to license Macross merchandise in America. Due to these legal issues, Jetfire has not been amongst the Transformers toys reissued in the 21st century."
note the phrase "Exclusive rights".
If an anime is distributed with "Exclusive rights" that means that that anime and all follow ups to it (Sequals, prequals, ets) would be automatically licenced by that company due to exclusive rights. without exclusive rights something can be licenced for NA distributation but another company can later be given the rights to it, this leaves the question of fanfiction in even deeper grey area.
Back to US fanfiction of US works is that althought copyright owners get to control derivitive works, they do not "own" them. they only own the material they copyrighted. (If this was stated sorry to repeat, but I was unclear if this point was stated)
a Japan example is that there is fanfiction Manga sold, and while this is "not legal" it is officially ignored, but unofficially encuraged as free advertizing.
As much as there are people like Anne Rice who fight against fanfiction, J. K. Rowling loves Harry Potter fanfiction, she isn't happy with NC-17 Potter Fanfiction though. But she also sued a Russian author who made a blatant rip off of her works.
Finally in MY opinion its only Grey until the author says something, and if they are over seas it just lightens the shade of grey.

[Cheb]

who made a blatant rip off of her works.

Sounds more like a blatant mockery to me. [info]. Note that the arch-villain name sounds in Russian exactly like Plague-del-Cake. Plague I can get, but cake...? Other names are, similarly, sounding very silly or mockingly in our cultural context. Publishers claim that's a honest parody.
Thankfully, I never met this thing, and I prefer it to stay that way. Anything GP, IMO, should be avoided like a plague.

, she isn't happy with NC-17

Almost anybody would be unhappy with that.

and the Japanese copyright holders go after you then they can charge you in Canada, US or Japan depending on how they feel about it.

Did the Japanese copyright holders sue anybody for real? I thought they are absolutely inert about that.