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Thread: Fanfic vs Copyright

  1. #1
    Regular Member Jack House's Avatar
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    Fanfic vs Copyright

    Should fanfic be protected as fair use, or is it a violation of copyrights?

    I'm asking for your opinion and not the opinion of law. I know what the law says, I'm interested in personal opinions.

    Posted using my HTC Evo

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    Founder's Club Member Brass Magnet's Avatar
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    Does fanfic mean fan fiction? Sorry, not up on the terminology. In any case, I love me some fan fiction. The various Starwars spoofs, Red V. Blue (machina fan fiction), that fan Halo movie that was supposed to come out that I just reminded myself about with this post that I should check right now to see if I can get it.

    I think that as long as it is an original story and/or a spoof, it should be fair use. I know some of it is even encouraged by the copyright holders. Lucas had contests for Starwars fan films. Microsoft/bungee encouraged Red V. Blue. Basically, as long as it isn't being passed off as the real deal, I don't see much of an issue with it and think it's good free advertisement for the copyright holders as well.

    There's some naughty Anime out there that might be questionable.......uh....I....uhmm...heard that from a friend of course.
    Last edited by Brass Magnet; 10-10-2011 at 04:03 PM.
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  3. #3
    Regular Member Jack House's Avatar
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    Yeah, fan fiction. There are laws being proposed by Hollywood and the music industry as well as being supported by some game companies that would outlaw fan fiction.

    Recently a mod for a game based on the Battlestar franchise was shotdown by NBC. I believe this to be a copyright abuse.

    Posted using my HTC Evo

  4. #4
    Herr Heckler Koch
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    It's a copyright violation. Where do you find a fair use that can be stretched to fit?

    Come on over to EFF.org. I pray you have not taken our owner student lawyers on copyright as informed lessons.

  5. #5
    Founder's Club Member Brass Magnet's Avatar
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    Quote Originally Posted by Herr Heckler Koch View Post
    It's a copyright violation. Where do you find a fair use that can be stretched to fit?

    Come on over to EFF.org. I pray you have not taken our owner student lawyers on copyright as informed lessons.
    ??

    In the very least, Fan Fiction Parodys are presumed fair use.

    From Wiki:

    Fanfiction is not infringing if it constitutes fair use of the underlying copyrighted work. In determining whether a particular use constitutes fair use, courts consider the following four factors:


    1. "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
    2. the nature of the copyrighted work;
    3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
    4. the effect of the use upon the potential market for or value of the copyrighted work.”[9]

    Fair use is assessed on a case-by-case basis. While such genres as parody and criticism are enumerated by statute and case law as presumptively fair uses of a copyrighted work, fan fiction has not historically been recognized by U.S. courts as necessarily constituting these or other enumerated fair use genres, and thus neither falls categorically inside nor categorically outside the presumptive boundaries of fair use. Works of fanfiction are more likely to constitute fair use if they are “transformative” with respect to the original work, if they are non-commercial, if they appropriate relatively little of the original work, and/or if they do not tend to detract from the potential market for or value of the original work.[9]
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  6. #6
    Regular Member Jack House's Avatar
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    Quote Originally Posted by Herr Heckler Koch View Post
    It's a copyright violation. Where do you find a fair use that can be stretched to fit?

    Come on over to EFF.org. I pray you have not taken our owner student lawyers on copyright as informed lessons.
    What are you saying isn't fair use? Fanfic? It's decided on a case by case basis.
    Last edited by Jack House; 10-11-2011 at 09:36 AM.

  7. #7
    Campaign Veteran since9's Avatar
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    From Wikipedia, "Works of fan fiction are rarely commissioned or authorized by the original work's owner, creator, or publisher; also, they are almost never professionally published."

    Whether it's published or not has nothing to do with whether it's a copyright or trademark violation. If I design and build a substantially similar household appliance to one that's under a patent, is that a patent violation? Yes, it is. Good luck enforcing it, though, and provided I'm not making money off it, the only amount the patent owner(s) or production rights holder(s) could legally recover is the net they'd have received had I purchased the device instead. So, for a vaccuum cleaner, what? $20? No one's going to sue for that. I could make my own chia pet and no one would sue for that, either.

    Copyright and Trademark is very nearly the same, except that it's both broader and more murky. If I create a character named "Dirk Pitt" and publish it in a story online, the owner of the real Dirk Pitt, Clive Cussler (and counsel) will come after me even if I didn't make a penny. Will they win? Yeah, but as no profit was made, it'll be just the forced removal of the story I created and possibly a punitive fine.

    The name Dirk Pitt falls under copyright law, but the teeth are weak for going after a purloined character, particularly if the setting is completely changed. "Dirk Pitt" is also trademarked, which has far larger teeth. Now you can't use it in any context without the express written permission of whoever holds the trademark.

    Now - is it illegal to write such a story which copies characters and context? Not at all, provided you don't attempt to publish it, whether for free or pay. Star Trek fans are always writing books and scripts in the hopes they'll get picked up. Some do, most don't. Sending it in to the owners of that franchise is fine. Passing it around to a few friends for their edits/inputs is fine, too. Publishing it in any form beyond this scope is not fine and constitutes a copyright/trademark violation.
    The First protects the Second, and the Second protects the First. Together, they protect the rest of our Bill of Rights and our United States Constitution, and help We the People protect ourselves in the spirit of our Declaration of Independence.

  8. #8
    Regular Member Jack House's Avatar
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    Is that your person opinion, or your opinion of the law? If it is your personal opinion, I disagree. If it is your opinion of the law, then you are simply wong.

    But I'm not really interested on a discussion on the law so much as a discussion on how you believe the law should read.

    Posted using my HTC Evo

  9. #9
    Campaign Veteran since9's Avatar
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    Quote Originally Posted by Jack House View Post
    Is that your person opinion, or your opinion of the law? If it is your personal opinion, I disagree. If it is your opinion of the law, then you are simply wong.
    Woah! Time out - you asked, I responded. I'm a writer by trade (10+ years, PT while in the military, and FT afterwards), and get my information from lawyers (one on retainer) specializing in copyright, trademark, and patent law. I've attended seminars, taken copious notes, and what I stated is simply a summary of those notes.

    Good luck with your own interpretation, Jack...
    Last edited by since9; 10-18-2011 at 12:25 AM.
    The First protects the Second, and the Second protects the First. Together, they protect the rest of our Bill of Rights and our United States Constitution, and help We the People protect ourselves in the spirit of our Declaration of Independence.

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