|
THE FANFICTION VS.
COPYRIGHT FAQ TABLE OF CONTENTS 1. The Bare Bones a. The US Copyright Office Online b. The IMPORTANT Copyright Law
Sections 2. What Did All Of
That Mean
a. Section 106
#1. Excerpt From the US Copyright Office Circular
21
b. Section 107 #1. Excerpt From the US Copyright Office Circular 21 3. Is Fanfiction Legal 4. Can I Be Sued 5. To 'Publish' on the
Internet 6. Would Any Copyright
Owner Like to Add Their Stance on Fanfiction 7. The Use of 'Fair
Use' in This FAQ 8. The Fair Use of
this FAQ ______________________________________________________ 1. THE BARE BONES a. The US Copyright
Office Online http://lcweb.loc.gov/copyright/ A FAQ is available at the
online office as well as a copy of the Copyright Law. I
encourage anyone to go read up on his or her rights. **NOTE: You will need
an Adobe Acrobat reader to view flyers as well as the Copyright Law b. The IMPORTANT
Copyright Law Sections Below are the sections
of the Copyright Law that would pertain to fanfiction in a US
court of law. --------------------------------------------------------------------- 106. Exclusive rights
in copyrighted works Subject to sections 107 through
120, the owner of copyright under this title has the
exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted
work in copies or phonorecords; (2) to prepare derivative works
based upon the copyrighted work; (3) to distribute copies or
phonorecords of the copyrighted work to the public by sale or transfer of ownership, or by rental, lease, or lending; (4) in the case of literary,
musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; (5) in the case of literary,
musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural work, to display the copyrighted work publicly; and (6) in the case of sound
recordings, to perform the copyrighted work publicly by means of a digital audio transmission. **Section 106A
pertains to copyright on visual art and thus is excluded from this FAQ 107. Limitations on exclusive
rights: Fair use Notwithstanding the provisions of
sections 106 and 106A, the fair use of a copyrighted work, including such use
by reproduction in copies or phonorecords
or by any other means specified by that section, for purposes
such as criticism, comment, news reporting, teaching (including
multiple copies for classroom use), scholarship, or research, is not an
infringement of copyright. In determining whether the use made
of a work in any particular case is a fair use the factors to be considered
shall include-- (1) the purpose and character of
the use, including whether such is of a commercial nature or is for nonprofit educational purpose; (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. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors. --------------------------------------------------------------------- 2. WHAT DID ALL OF
THAT MEAN a. SECTION 106 Unless you are
otherwise making reproductions, copies and so on of copyrighted work, the
only important part of Section 106 is the following: (2) to prepare derivative works
based upon the copyrighted work; ** derivative adj.
1. not original; secondary.
-n. 2. something derived. (the rest of the definition is
ignored as it does not pertain to the subject of this FAQ) ** derive v.
1. to receive or obtain from a source or origin; gain; glean.
2. to trace trace from a source or origin. 3. to reach or obtain by reasoning; deduce; infer. 4. to produce or obtain (a chemical substance) from another. 5. to come from a source or origin; originate. What this means is
that the copyright owner has the sole right to use (and abuse) their
creations. BUT - this isn't the
last word the US Government has PLACED on this subject. The House (of
Representatives) and the Senate have both defined Section 106
further. ** While it can be
argued that the Copyright Law is law, I would lean more towards the definitions provided by
the House and the Senate. 1 - because both, under law, can CHANGE
the law (and have). 2 - I'd rather not get into an argument
with either. #1. Excerpt From The
US Copyright Office Circular 21 ** The following
excerpts are reprinted from the House Report on the new copyright law (H.R. Rep. No. 94-1476,
pages 61-62). The text of the corresponding Senate Report (S.
Rep. No. 94-473, pages 57-58) is substantially the same. --------------------------------------------------------------------- Section 106. Exclusive
Rights In Copyrighted Works General scope of
copyright The five fundamental
rights that the bill gives to copyright owners -- the exclusive
rights of reproduction, adaptation, publication, performance, and display
-- are stated generally in section 106. The exclusive rights,
which comprise the so-called "bundle of rights" that is a copyright,
are cumulative and may overlap in some cases. Each of the five
enumerated rights may be subdivided indefinitely and, as discussed
below in connection with section 201, each subdivision of an
exclusive right may be owned and enforced separately. The approach of the
bill is to set forth the copyright owner's exclusive rights in
broad terms in section 106, and then to provide various limitations,
qualifications, or exemptions in the 12 sections that follow. Thus,
everything in section 106 is made "subject to sections 107 through
118," and must be read in conjunction with those provisions. Rights of
reproduction, adaptation, and publication The first three
clauses of section 106, which cover all rights under a copyright except
those of performance and display, extend to every kind of copyrighted
work. The exclusive rights encompassed by these clauses, though
closely related, are independent; they can generally be characterized as
rights of copying, recording, adaptation, and publishing. A single
act of infringement may violate all of these rights at once, as
where a publisher reproduces, adapts, and sells copies of a person's
copyrighted work as part of a publishing venture. Infringement
takes place when any one of the rights is violated: where, for
example, a printer reproduces copies without selling them or a
retailer sells copies without having anything to do with their reproduction.
The references to "copies or phonorecords,"
although in the plural, are intended here and throughout the bill to
include the singular (1 U.S.C. §1). Reproduction. -Read
together with the relevant definitions in section 101, the right
"to reproduce the copyrighted work in copies or phonorecords"
means the right to produce a material object in which the work is
duplicated, transcribed, imitated, or simulated in a fixed form from
which it can be "perceived, reproduced, or otherwise
communicated, either directly or with the aid of a machine or device." As
under the present law, a copyrighted work would be infringed by
reproducing it in whole or in any substantial part, and by duplicating it
exactly or by imitation or simulation. Wide departures or
variations from the copyrighted work would still be an infringement as long
as the author's "expression" rather than merely the author's
"ideas" are taken. An exception to this general principle, applicable
to the reproduction of copyrighted sound re-cordings, is
specified in section 114. "Reproduction"
under clause (1) of section 106 is to be distinguished from
"display" under clause (5). For a work to be "reproduced,"
its fixation in tangible form must be "sufficiently permanent or stable to
permit it to be perceived, reproduced, or otherwise communicated
for a period of more than transitory duration." Thus,
the showing of images on a screen or tube would not be a violation of
clause (1), although it might come within the scope of clause (5). --------------------------------------------------------------------- Confusing isn't it? The House and Senate
*TRY* to state that it is against the law to use any ideas and/or
expressions of copyrighted work. Then of course, they go and refute
themselves in the excerpts on Section 107. ** A good argument for
fanfiction on the internet is the fact that the internet at LARGE is transitory. No
matter how long a document has been online, a virus and/or hardware
failure can erase it forever. On the other hand, a book and/or movie
and/or computer software take a bit more to destroy. You would
have to burn every book published, destroy every video tape as
well as every CD or disk ever created. -- Rather
depressing thought isn't it? b. SECTION 107 Section 107 is by far,
subject to almost as much interpretation as the Bible itself is. By one interpretation,
Section 107 allows an independent party (in this case the fanfic
author) to use the copyright owner's ideas and expressions in the
following manners: for criticism, for commentary, for news reporting,
for research and for educational purposes. In all intents and
purpose, fanfiction can be argued as being any of that. That argument,
unfortunately, only holds as much weight as your lawyer can GIVE IT. Of course, it doesn't
end there. The House (of Representatives) and the Senate have both
defined and confused the issue of Free Use further. ** As a repeat, it can
be argued that the Copyright Law is law, and what the House and the Senate say is not.
But since THEY make and change the laws in the first place, I'd
favor their definitions. #1. Excerpt From The
US Copyright Office Circular 21 ** The following
excerpts are reprinted from the House Report on the new copyright law (H.R. Rep. No. 94-1476, pages 65-74). The discussion of section 107 appears at
pages 61-67 of the Senate Report (S. Rep. No. 94-473). The text of
this section of the Senate Report is not reprinted in this
booklet, but similarities and differences between the House and
Senate Reports on particular points
will be noted below. - Even the
Senate and the House can't agree on it --------------------------------------------------------------------- House Report: Introductory
Discussion on Section 107 | The first two paragraphs in this portion
of the House Report | | are closely similar to the Senate Report.
The remainder of | | the
passage differs substantially in the two Reports. | SECTION 107. FAIR USE General background of
the problem The judicial doctrine
of fair use, one of the most important and well-established
limitations on the exclusive right of copyright owners, would be given
express statutory recognition for the first time in section 107.
The claim that a defendant's acts constituted a fair use rather than
an infringement has been raised as a defense in innumerable copyright
actions over the years, and there is ample case law recognizing the
existence of the doctrine and applying it. The examples enumerated at
page 24 of the Register's 1961 Report, while by no means
exhaustive, give some idea of the sort of activities the courts might regard as
fair use under the circumstances: "quotation of excerpts in a
review or criticism for purposes of illustration or comment; quotation of
short passages in a scholarly or technical work, for illustration
or clarification of the author's observations; use in a parody of
some of the content of the work parodied; summary of an address or article,
with brief quotations, in a news report; reproduction by a
library of a portion of a work to replace part of a damaged copy;
reproduction by a teacher or student of a small part of a work to illustrate a
lesson; reproduction of a work in legislative or judicial
proceedings or reports; incidental and fortuitous reproduction, in a
newsreel or broadcast, of a work located in the scene of an event
being reported." Although the courts
have considered and ruled upon the fair use doctrine over and over
again, no real definition of the concept has ever emerged. Indeed,
since the doctrine is an equitable rule of reason, no generally
applicable definition is possible, and each case raising the question
must be decided on its own facts. On the other hand, the courts have
evolved a set of criteria which, though in no case definitive or
determinative, provide some gauge for balancing the equities. These
criteria have been stated in various ways, but essentially they can
all be reduced to the four standards which have been adopted in
section 107: "(1) the purpose and character of the use, including whether
such use is of a commercial nature or is for non-profit 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." These criteria are
relevant in determining whether the basic doctrine of fair use, as stated
in the first sentence of section 107, applies in a particular case:
"Notwithstanding the provisions of section 106, the fair use of a
copyrighted work, including such use by reproduction in copies
or phonorecords or by any other means specified by that
section, for purposes such as criticism, comment, news reporting,
teaching (including multiple copies for classroom use), scholarship, or
research, is not an infringement of copyright." The specific wording
of section 107 as it now stands is the result of a process of
accretion, resulting from the long controversy over the related problems of
fair use and the reproduction (mostly by photocopying) of
copyrighted material for educational and scholarly purposes. For example,
the reference to fair use "by reproduction in copies or phonorecords
or by any other means" is mainly intended to make clear that the
doctrine has as much application to photocopying and taping as to older
forms of use; it is not intended to give these kinds of reproduction
any special status under the fair use provision or to sanction any
reproduction beyond the normal and reasonable limits of fair use.
Similarly, the newly-added reference to "multiple copies for classroom
use" is a recognition that, under the proper circumstances of
fairness, the doctrine can be applied to reproductions of
multiple copies for the members of a class. The Committee has
amended the first of the criteria to be considered-"the
purpose and character of the use"-to state explicitly that this factor
includes a consideration of "whether such use is of a commercial nature or
is for non-profit educational purposes." This amendment is not
intended to be interpreted as any sort of not-for-profit
limitation on educational uses of copyrighted works. It is an express recognition
that, as under the present law, the commercial or
non-profit character of an activity, while not conclusive with
respect to fair use, can and should be weighed along with other factors in
fair use decisions. General intention
behind the provision The statement of the
fair use doctrine in section 107 offers some guidance to users in
determining when the principles of the doctrine apply. However, the
endless variety of situations and combinations of circumstances that can
rise in particular cases precludes the formulation of exact
rules in the statute. The bill endorses the purpose and general
scope of the judicial doctrine of fair use, but there is no
disposition to freeze the doctrine in the statute, especially during a
period of rapid technological change. Beyond a very broad statutory
explanation of what fair use is and some of the criteria applicable to
it, the courts must be free to adapt the doctrine to particular
situations on a case-by-case basis. Section 107 is intended to
restate the present judicial doctrine of fair use, not to change, narrow,
or enlarge it in any way. --------------------------------------------------------------------- And you thought the
issue couldn't be confused further. What this rather
long-winded discussion does, is add parody to the list of possible fair
uses. It also states that while not-for-profit use of copyrighted
material isn't necessarily fair use, it is a very good argument for it. Meaning: With a good
lawyer, you may at least have a decent case if you have neither
profited from your fanfiction nor have you adversely affected the copyright
owner's potential market. Unfortunately, that
doesn't make it legal. Then again, it doesn't necessarily make it
illegal either. 3. IS FANFICTION LEGAL There is no 'yes' or
'no' answer. On one hand, it is
illegal to reproduce a copyright owner's ideas and/or expressions in
any shape, form or fashion. On the other hand, it
is perfectly legal to use said copyrighted work for criticism,
research, parody, comment, review, education and news reporting. It is up to the
public's interpretation, as well as the copyright owner's and the
court's, to determine whether it is against the law. Unless the Government
passes a new law concerning the legality of fanfiction at large,
the question of legal or illegal will remain unanswered. 4. CAN I BE SUED Of course. You can be
sued for ANYTHING. In all cases to date,
if a copyright owner is actually considering you worthy of a lawsuit,
you will receive some sort of warning to cease and desist. What follows is your
decision. You can remove all traces of the offending material
from 'public' forums or you can go to court. Whether you win or
lose said lawsuit depends on a variety of factors: (1) Whether you have a
good lawyer or not (2) Whether the
copyright owner has a better lawyer or not (3) Whether the jury
and/or judge LIKES you or not (4) Whether the jury
and/or judge LIKES the copyright owner better This, of course, is
true for ALL court cases. Sadly to say, the true principle of the law
and good intentions haven't made much difference in the judicial system
in a long time and that isn't likely to change just for your little
lawsuit. In the end -- Do you
feel lucky? 5. TO 'PUBLISH' ON THE
INTERNET The following are
opinions on the validity of fanfiction on the internet and whether
it should be considered copyright infringement. ** If you want to add
your opinion to the list: send it to sainttail@email.com - along with your
real name and occupation. --------------------------------------------------------------------- "Fanfiction is
copyright infringement in the case that the owner of the copyright has not
given explicit permission to write such. Publishing said
fanfiction on the net is comparable to reading said fanfiction to friends
on request or distributing hardcopy printouts to them, similarly on
request. It is personal use for the benefit of a small group of
readers. There is no difference between fanfiction in general, and
fanfiction on the Internet, and as in general, the legality of fanfiction
on the Internet is also governed by whether the owner of the
copyright has granted explicit permission to produce such fanfiction." Samy Merchi,
undergraduate student of English at the University of Turku, Finland. --------------------------------------------------------------------- 6. WOULD ANY COPYRIGHT
OWNER LIKE TO ADD THEIR STANCE ON FANFICTION If anything, the
fanfic community at large, would like to hear what the copyright owner's
stance on this shaky area is. If you are a
Commercially Published Writer, or a Representative of a Company owning one or
more Copyrights, we'd very much appreciate hearing your stances on
fanfiction in general. (it's always nice to hear from both sides
of the fence whether you're on one side or the other or not at all) If so, please send
your opinion to sainttail@email.com along with permission to post
your opinion (without alterations except for fitting into the FAQ's
format) to this FAQ. 7. THE USE OF 'FAIR
USE' IN THIS FAQ Whether you've noticed
it or not, this FAQ is a wonderful example of Fair Use. Excerpts
from not only the Copyright Law have been used, but excerpts from one
of the US Copyright Office's Circulars (which are excerpts in
themselves) has been used as well as definitions from Random House's
Webster's College Dictionary. And it's all for an
educational use. Thus, even with an average lawyer, I'm liable to
win any lawsuits that may be raised against me. Don't you just love
the judicial system? 8. THE FAIR USE OF
THIS FAQ Anyone reading is more
than welcome to pass and or repost this FAQ in its entirety to whomever or
where-ever they see fit on the internet. Should anyone
plagiarize it (say they wrote it when they did not)... well let's just say
Section 106 shall come into play. Please, do NOT alter
any of this FAQ without consulting with me (sainttail@email.com)
first. It would be counter-productive for it to lose some of its
meaning by 'well-meaning' alterations. Also, please consult
with me (sainttail@email.com) if you would like to use this FAQ for
something other than educational uses on the internet. |