fyeahcopyright:

fyeahcopyright:

“If you have some fan-tastic fic, we’d love to read it. Send us your finest work and one winner will be published in the pages of EW and on EW.com.”

Yep, that’s a thing that Entertainment Weekly – who are generally a fandom-supportive magazine/website – is doing this month. January is Fanuary, and they’re focusing on fandoms, fan creativity (fic and art), fan theories and more.  

It’s definitely not the first time that a mainstream publication has focused on fanworks – look at the article on My Immortal in NY Magazine last summer, or about 90% of what happens at SDCC and NYCC. It’s also not the first time that a mainstream entity has encouraged fanworks submissions – Lucasfilm has hosted (”curated”) fan-film fests, Mtv and the BBC have showcased fanart in galleries and at comic-cons, Wattpad has worked with shows like Dig by hosting fanfic, etc.

And EW is owned by Time, Inc., which isn’t actually owned by Time Warner anymore, though there are still certain lingering licenses and relationships between the two companies. Whether you’re ok with – or excited by – Fanruary, think it’s a great way to get more readers, writers, artists and reccers interested in awesome fanworks and share squee, or if you think it’s a way for a major multinational to get clicks and free content from fandomers, or whether it’s irrelevant to you and your fannishness, the contest terms of use are a watershed moment for fanworks, because of parts of its Terms of Use; some sentences are awesome. Other parts are kind of weird. 

This bit is awesome: 

Entrant represents that any fan fiction submission and other materials submitted as part of Entrant’s Contest entry are original…

Before, say, 2013, it would be surprising for a mainstream publication to create a contest that is premised upon the fact (not the idea, not the theory, but the fact) that the fan fictions submitted therein is “original”. 

But given recent cases, including those, like Google Books that we’ve written about here, that’s become an accepted fact. A fanfic can be an original work. EW can ask for fanfic submissions that do not “infringe upon the rights of any third party” because it’s an accepted legal judgment that fanfic does not automatically infringe upon the rights of any third party. They didn’t ask for fic only based on works in the public domain, like Shakespeare and Sherlock Holmes and Jane Austin. 

They ask the entrants to affirm that the entry does not “otherwise” infringe on any third party’s rights. The underpinning to this is that fanfiction is transformative, Fair Use and thus non-infringing. It says “fan fiction submission” – not just “submission”. By putting “fan fiction” into that sentence, they’re creating a situation where a court would have to use the standard meaning of “fan fiction”. Now, EW is obligated to accept whatever risk could vest, at least re what they eventually opt to publish.

It’s a good thing to have in your archives of Why Fanfic Is Noninfringing, basically, and we like archiving things that say that, especially when they come from big companies that are related to at least some of The Powers That Be. 

While we’ve seen some say that you’re handing over your story to EW if you enter the Fanuary contest, it appears that you’re actually not assigning it to EW or anyone else. The ToU for the contest says:

Entrant grants to Sponsor a non-exclusive, worldwide, royalty-free license to edit, publish, promote, republish at any time in the future and otherwise use Entrant’s submitted fan fiction, along with Entrant’s name, likeness, biographical information, and any other information provided by Entrant, in any and all media for possible editorial, promotional or advertising purposes, without further permission, notice or compensation (except where prohibited by law).

Under this, they can do a lot with the story you submit, even if you don’t win, but they don’t have any exclusive rights to it just because you submit it to the contest – although it wouldn’t surprise us if the winner has to grant a broader license before they publish their story. 

However, the first paragraph says, “Entries become sole property of Sponsor and none will be acknowledged or returned.” @ew​, we think that someone might not have beta-read the contest rules, because the copyright license in the Rules contradicts the implication in the first paragraph, in a way that makes the first paragraph look poorly worded because it’s vague as to what the entry actually is. If @ew​ does a similar contest in the future, they may want to just say “No entries will be acknowledged or returned.” ETA: @rivkat discusses this issue here. 

ETA for clarification: In the US, a license or assignment of copyright can only be done in writing, and while a nonexclusive license (like the one spelled out in the Rules) can happen without a signature, as the Copyright Office says, a “transfer of copyright ownership … is not valid unless an instrument of conveyance
(for example, contract, bond, or deed) or a note or memorandum
of the transfer is in writing and is signed by the
owner of the rights conveyed or the owner’s duly authorized
agent.” See 17 U.S.C. § 204(a).

We don’t believe that submitting a contest entry constitutes a signing by the fic-writer; if it doesn’t, then there’s no assignment of the fic. There is, as we said, a non-exclusive license, but that means that after submission, the fic-writer can still do anything they want to with said story. 

[Updated Jan. 4, 2016 at 1:50 PM EST]

Glad to see @entertainmentweekly updated the rules as we recommended yesterday. More info via @themarysue http://www.themarysue.com/not-cool-ew-fanfic/