Very few copyright issues are as divisive or as headache-inducing as fan creations. Whether it is fan fiction for a popular fantasy series or fan art of a popular movie, these creations almost instantly walk into a copyright mess that can be enough to make even the boldest attorney cringe.

Yet, fan fiction and fan art both remain wildly popular and widely tolerated on the Web. There are large communities dedicated to, such as Harry Potter fan fiction, even after Rowling successfully sues another fan creation in court.

So, while an entire blog could be dedicated to the top of fan creations in copyright, we’re going to take a brief look at the issue and try to understand where we sit on the issue today.

What the Law Says

According to copyright law, copyright holders have the sole right to distribute derivative works based on an original creation. This includes sequels and any other work that includes copyrightable elements from the original creation.

As was confirmed in the recent “Catcher in the Rye” case, characters can be granted copyright protection as can many other non-expression elements of the original work. This is furthered that most fan creations are built upon plot elements and other copyrightable parts of the original material.

That being said, fair use may protect some fan creations from being an infringement, but that is handled on a case-by-case basis, looking at the facts of the actual work. However, most fan creations, by their very nature, don’t parody or criticize the source material, which would provide a great deal of protection, nor are they highly transformative, meaning that they are less likely to win in the even that such a suit takes place.

It is also worth noting that fan fiction and fan art can be a trademark violation as well, especially if it uses names and titles in a way that causes confusion as to whether they are official. Trademark disputes over fan creations are rare, but still possible.

Yet, despite a relatively strong legal position, lawsuits over fan fiction and fan art are extremely rare. This is especially odd considering that many of the rightsholders who are the most common target of fan creations are also among those most aggressive at stopping other infringement of their work.

So why has fan art thrived? The reason is actually fairly simple.

Speaking the Unspoken Rule

From a copyright holder viewpoint, fan fiction and art is usually not very harmful. Fans create works that are openly recognized to be non-canon to the story and are not replacements for the original.

In fact, some feel these fan communities actually serve a valuable service to copyright holders by providing a thriving site for fans to visit, keeping them entertained and engage between official releases. In short, since fan creations don’t take away sales of the original work, they are often seen as free promotion and a way to grow the brand without cost or effort.

The bigger issue, however, is the cost of going to war with fans. Being litigious with creators of fan art can be very costly, not just in terms of court costs, but in terms of backlash. No creator wants to sue their fans, especially when the fans aren’t earning revenue, and as such most creators will tolerate fan fiction and art under most circumstances.

Some even go as far as to create fan site kits, for the purpose of aiding the creation of fan Web sites. This includes Blizzard with World of Warcraft.

Fan fiction and fan art communities, in turn, usually have a set of rules that they follow to preserve their symbiotic relationship.

First, they agree to not profit from or sell copies of their creations. Though some of the communities run ads to cover hosting costs, most do not turn any profit and the individual authors never sell their works. Second, they always proclaim that their work is unofficial and has no connection with the creators. Finally, they respond to requests from the copyright holder to remove content and work with the creator as needed.

In short, the community works to ensure they don’t hurt the original creator’s ability to profit from the work and the creator tolerates what is technically a copyright infringement in many cases. Everyone seems to be happy though, on rare occasions, the system can break down.

Problems with the System

Though any unspoken and unsigned agreement can break down for a number of reasons, on matters of fan creations, there are typically two causes.

1. Aggressive Creators: Some creators, such as Anne Rice, have been very aggressive about shutting down fan fiction sites.
2. Fan Art/Fiction Creators Who Cross Lines: Also, some fan creators, either misunderstanding copyright law or feeling they have been given permission, cross the lines and either try to sell copies of the works they create or otherwise commercially exploit them. Some also try to claim the fan works to be original works, often by merely changing names around.

These are the cases that result in conflict between authors and fan fiction/art communities. The Harry Potter Lexicon case is an excellent example of a fan crossing one of the lines as the Lexicon had been a free site for many years, well-tolerated by Rowling, and it was only when a book was to be made for sale that the issue became a legal one.

Granted, not every fan artist who sells copies of works is pursued, Magic the Gathering, for example, seems to have many artists that sell fan art of the cards but Wizards of the Coast, the makers of the game, don’t seem to actively be pursuing (at least not that I’ve heard).

Still, that is the most common tipping point between when a fan creation goes from being a “tolerated infringement” to a legal matter.

That being said though, every creator has right to make the choice for themselves where they want the line drawn and to enforce that line as they see fit, an important thing to remember when dealing with fan fiction and fan art.

Staying Safe

If you’re interested in creating fan fiction or fan art, here are a few quick things I would say to do to make sure you don’t find yourself in a copyright or trademark conflict.

1. Check the Rules: Look for the rules of whatever you’re a fan of. Fan art and fan fiction communities often have guidelines and some authors have made public statements on the issue. Do some research before creating and uploading.
2. Make it Clearly Unofficial: Have clear statements on your site that your site and your work is not an official site and is just a fan creation. Though it may not help with an actual trademark or copyright dispute, it shows good faith and encourages rightsholders to work with you.
3. Be Non-Commercial: This is an element of the unspoken rule, but try to be completely non-commercial with your works, no selling copies, no sponsorships, no advertisements.
4. Be Careful with Domains: Be mindful that your domain can become a trademark issue if it leads others to think that you might be an official site. Make it clear with your domain that it is a fan creation.
5. Comply with Requests: If the creator or an agent on their behalf makes a request of you, obey it. If it’s a polite request, complying helps avoid a less-than-polite request later and builds a good rapport. If it is a more stern one, it is even more important to comply.

By no means do these steps prevent fan fiction and fan art from being a technical infringement, but they may help your use of the content be considered a tolerated and even respected use of the source material.

Bottom Line

The key point to remember is this: Fan fiction and fan art are, usually, an infringement of the right of the copyright holder to prepare and license derivative works based on the original. This is almost without exception.

However, many copyright holders, for good reasons, tolerate fan art and even encourage it, but this should not be taken as carte blanche to do what you want with the source material. There are many lines that a fan artist can cross and wind up in legal trouble.

Your best bet is to study the rules for your community and obey them closely. If you do that, you should be fine but always remember that your creations only exist through the good graces of the copyright holder and they can change their mind at any point.

If you’re not comfortable with that, then you’re better off creating your own, wholly original work. Not only do you not have the threat of being shut down hanging over you, but you also have the right to exploit the works however you see fit.

1: French net piracy bill signed off

First off today is the news that everyone has been talking about, the controversial “three strikes” bill passed in France yesterday, passing both houses of the legislature. The bill requires ISPs to disconnect file sharers after they have received three complaints (and been sent two warnings) for copyright infringement.

The bill, which was originally rejected when it was raised earlier, has also been criticized by the EU as a whole, who have refused to back disconnection legislation that does not involve a judge. Other countries will be watching how this law is applied closely as other nations are rumored to be considering similar legislation themselves.

However, most, including the UK, have roundly rejected the idea.

2: RealNetworks continues to develop DVD-copying device

Next up, RealDVD must be very confident in their case against the MPAA over their RealDVD application as the company is continuing to hire engineers for their new DVD player Facet, which rips and stores DVDs on an internal harddrive for easier playback.

RealDVD is a DVD ripping and storage application for computers that functions very similarly to Facet, save that Facet is a device for TVs. However, RealDVD attracted a currently-ongoing lawsuit as the MPAA felt the product was infringing and managed to get a restraining order prohibiting the sale of the product.

The two sides are expected to make closing arguments about lifting the ban later this month.

3: Chrono Trigger fan mod receives Cease-and-Desist letter from Square Enix

Finally today, fans of the Chrono Trigger video games will be very disappointed to know that a fan-made sequel to the game entitled Chrono Trigger: Crimson Echoes is no more. The game received a cease and desist letter from the makers of Chrono Trigger, Square Enix and the team behind the mod has ceased operations.

What makes this case unusual is that the fan-made mod had been in development since 2004 and was 98% complete according to its makers. Why Square Enix waited until now to file the notice? Where they unaware of the mod until recently or was there some other motive behind waiting until just before the game’s release?

Whatever the reason, the mod is dead now and all that remains are a couple of YouTube clips showing what might have been.

Suggestions

That’s it for the three count today, we’ll be back tomorrow with three more copyright links. If you have a link that you want to suggest a link for the column or have any proposals to make it better. Feel free to leave a comment or send me an email. I hope to hear from you.

Want the Full Story?

Tune in every Saturday morning for the live recording of the Copyright 2.0 Show or wait and get the edited version Monday morning right here on Plagiarism Today.

It is Monday again and that means that it is time for another episode of the Copyright 2.0 Show.

It was a busy week for copyright news with the RIAA and the MPAA both making some headlines and some major DRM announcements this week in the video game industry. This says nothing about the turnarounds for both Project Playlist and Red Lasso as well as a less fortunate turn for Mediadefender.

Most exciting of all though, we announce the birth of a brand new site in the PT-family. But you’ll listen lest you fail to find this copyright site (Note: It is under early construction and I am eager for feedback).

All in all, there were fifteen stories this week including news from all over the copyright world including our “Weird Story of the Week”.

This week’s stories include:

• RIAA and MPAA Side with ISPs
• EU Takes Stand Against Three Strikes
• Microsoft and Ubisoft Back Away from DRM
• China Video Sites to Filter Infringements
• Fan Fiction Author Commits Copyright Fail
• And Many more…

You can download the MP3 file here (direct download). Those interested in subscribing to the show can do so via this feed.

Show Notes

1: MediaDefender Founders Leave Sinking Ship

According to a recent SEC filing, MediaDefender’s founders, Randy Saaf and Octavio Herrera, are no longer working for the company. After they were paid $43 million for their anti-piracy services company in 2005, the company began to have trouble just a few years later, first after a hacker leaked internal emails and later as many of their clients abandoned them in favor of other services.

The company now has its stock trade at about two cents per share and most are predicting it will close shortly.

MediaDefender previously made much of its reputation by uploading fake bittorrents and seeding them on unmonitored torrent trackers, making it harder and harder for users to find movies and other items to download.

2: Ubisoft Goes DRM-Free for Old Games

Game maker Ubisoft has announced that they are putting many of their older titles, including Prince of Persia: Sands of Time on Good Old Games (GOG) for download. What makes this interesting is that GOG downloads do not come with any DRM.

Ubisoft has historically had a troublesome relationship with DRM, including blunders that made games unplayable for legitimate downloaders, and has been forgoing DRM in more recent months. This seems to be a continuation of that strategy.

3: What It’s Like to Be Delusional

Finally today, a story that will make the copyright gurus facepalm. Author and webmistress LadySybilla produced an unauthorized fan-created sequel to the popular vampire novel saga Twilight.

However, where most fan fiction authors are content on posting their works in forums and sharing them on fan sites (and authors, despite clear copyright issues, usually tolerate this behavior), LadySybilla decided to attempt to sell her work on eBay.

When pressed on the copyright issues, she issued a second press release saying, in part that, “Copyright laws protect writers from unauthorized reproductions of their work, but such reproductions only include verbatim copying. Characters are only copyrightable if their creator draws them or hires an artist to draw them.”

The publishers of the Twilight books obviously understood the correct definition of “derivative works” and managed to get the work pulled from eBay before it could be sold. LadySybilla is now running a poll to decide whether she should simply publish the work online for free or pull the plug altogether. She has promised to refund all pre-orders.

Suggestions

That’s it for the three count today, we’ll be back tomorrow with three more copyright links. If you have a link that you want to suggest a link for the column or have any proposals to make it better. Feel free to leave a comment or send me an email. I hope to hear from you.

Want the Full Story?

Tune in every Saturday morning for the live recording of the Copyright 2.0 Show or wait and get the edited version Monday morning right here on Plagiarism Today.

Later, in 2004, JK Rowling, the author of Harry Potter, gave the site high praise saying that it was “such a great site that I have been known to sneak into an internet café while out writing and check a fact rather than go into a bookshop and buy a copy of Harry Potter.”

However, the friendly relationship between Rowling and the Lexicon took a famous turn for the worse in late 2007 when RDR Books persuaded Vander Ark to publish a printed version of the Lexicon. This was after Vander Ark had been rejected by Rowling’s agents for a formal position in an official Harry Potter Encyclopedia.

What followed was a letter exchange between the three parties and, eventually a lawsuit by Rowling and Warner Bros., the makers of Harry Potter films, to stop publication of the book. The lawsuit, which concluded yesterday, found that the lexicon was not a fair use and officially barred publication of the book.

It is an unhappy end to a very sad saga but it is a case that illustrates the problems copyright holders, large and small, have when fans cross the line.

A Difficult Relationship

Getty Images via Daylife

On matters of copyright, the relationship between fans and creators has always been a somewhat tumultuous one. Fans, often eager to use the works they enjoy to express their creativity, routinely create fan fiction, remixes and other homemade derivative works.

Artists, whether they are musicians, authors or filmmakers, are typically very lenient about such practices. They realize that such creations are not only free promotion for their work, but that such efforts create a community that comes together and supports the original work. In short, there is nothing to be gained by going to war with your fans.

However, there are times in which fans simply go too far. They do something that is a perceived slight to the original artist and that creates a backlash, often from both the artist and the community.

An excellent example of that was in 2005 when a fan of the Applegeeks Webcomic, Chris Davis, tired of waiting for a printed version and created his own, printing it using an online publisher. Though just one copy of the book was made, this resulted in outrage from both the creators and the fans of the series, eventually resulting in Davis sending the book to the artists.

Clearly these are tricky matters that do not fit neatly within the paradigm of artist and infringer. As such, the usual system for dealing with copyright issues is not effective nor appropriate here.

Kid Gloves

Though tossing about DMCA notices and cease and desist letters is fine when dealing with plagiarists and spammers, with fans and supporters, it is much less desirable. Not only are such tactics likely to turn supporters against you, but it damages the community that is forming and hinders the market for your own work.

Clearly, if you are fortunate enough to have a problem with fans misusing your work, you need to think about a separate strategy for dealing with such issues.

Any such strategy would likely include the following elements:

1. Clear Guidelines for Fans: It may be unpleasant, but one of the first elements of avoiding conflicts is setting clear and fair guidelines for what fans can and cannot do. Creative Commons Licensing can help some but most larger copyright holders have set up Webmaster/fan sections, such as the one created for Harry Potter.
2. Communicate Desires Effectively: In addition to a good set of guidelines, it is important to keep in touch with the fans and let them know if anything upsets you. This would be an excellent use for your blog or official site. Usually if fans are aware of an issue, they will work to avoid it and fan site administrators will usually help head off any problems before they reach a level where a lawsuit might be considered.
3. Distinguish Between Fans and Other Infringers: This can be tricky to do at times, but remember that willful infringers are a different group with a different set of intentions than those who enjoy your work and may stumble across legal boundaries. Look for plagiarism, heavy commercialization, piracy or other signs that an infringer is a merely a wolf in sheep’s clothing and treat them as such. Be prepared to back up your reasons if needed.
4. Try to Resolve Fan Issues Peacefully: Though we are quick in a litigious society to throw about legal threats, with these types of issues there are usually a more direct and less hostile ways of handling them. If a fan goes too far, if legal action isn’t immediately necessary, contact them and let them know ask them to work with you and explain your reasons. A small olive branch extended on the front end not only prevents conflict with the community as a whole but should things turn ugly, can put you on the high road.
5. Include Fans When Possible: Though not a copyright issue directly, if fans feel that they have a voice and a say in the new works, they are much less likely to do engage in behavior that both offend the law and the artist. Letting the fans in, rather than keeping them at arms reach, is a huge asset in stopping problems before lawyers become involved.

The bottom line is that cases of copyright infringement that involve fans are as much about matters of politics as they are legal issues. Though Rowling doesn’t seem to have taken too much flak for her actions in this case, likely due to her known tolerance for non-commercial use and the nature of this book, it doesn’t take much imagination to see how this could have blown up into a much bigger headache.

Conclusions

In the end, fans are different from plagiarists, scrapers and other copyright infringers. Their intentions are different, their motivations are different and, thus, the way to approach them is different.

Most copyright holders, including the ones I’ve listed in this article, are very good about realizing this and acting accordingly. Others, especially big corporations, have not been so good in this area.

This is a difficult area of copyright law that requires both nuance and diplomacy. Furthermore, no solution is going to work well for every creation.

It all goes back to communicating with your fans and finding out what they want and letting them know what you need. If everyone works together, these problems can be few and far between and the less common these messy situations are, the better off everyone is.

Related Links

• Stupid Celebrities Gossip: More information about the book that never will be.
• P2PNet: More background on the suit.
• Ars Technica: More background on the lawsuit.

Further Discussion

• Was it a sound business decision for Rowling to file suit?
• Do you agree with the ruling?
• What lasting impact will it have on fan creations?