That’s the question, definitely. Where is the line?
When Shepard Fairey made his famous Obama “Hope” poster, he got in big trouble for it because he used someone’s photo for reference. He’s a street artist, though. His stuff isn’t like my stuff.
If I used the same Obama image as reference to make a realistic portrait, would it be allowed as long as I called it fanart?
People think someone like Andy Warhol got away with it, but he was sued at least three different times by the photographers whose images he used (and sometimes outright traced) to make his art.
Derivative art has forever and ever been an issue in art. Art has always been full of artists copying, stealing, taking credit for, and sabotaging each other. It’s full of forgery, theft, vandalism, and appropriation. Sometimes they get away with it. Sometimes they don’t.
At what point do we say, “I don’t need to give credit”?
Sometimes, even as I’m drawing, I try to see that line. If my art weren’t realistic, would copying be an issue? How exact do I have to be before the lines I’m making are no longer mine? Will this line right here that I’m drawing be what loses me a lawsuit? Who knows?
In a purely literary sense, fanfic doesn’t exist. There is only fiction. Fanfic is a legal category created by the modern system of trademarks and copyrights. Putting that label on a work of fiction says nothing about its quality, its creativity, or the intent of the writer who created it.
The Pulitzer Prize for Fiction this year went to March, a novel by Geraldine Brooks, published by Viking. It’s a re-imagining of the life of the father of the four March girls in Louisa May Alcott’s Little Women. Can you see a particle of difference between that and a work of declared fanfiction? I can’t. I can only see two differences: first, Louisa May Alcott is out of copyright; and second, Louisa May Alcott, Geraldine Brooks, and Viking are dreadfully respectable.
I’m just a tad cynical about authors who rage against fanfic. Their own work may be original to them, but even if their writing is so outre that it’s barely readable, they’ll still be using tropes and techniques and conventions they picked up from other writers. We have a system that counts some borrowings as legitimate, others as illegitimate. They stick with the legit sort, but they’re still writing out of and into the shared web of literature. They’re not so different as all that.
So I received a very nice set of private messages from a reader offering to let me read their fanfic, after asking me if it was cool to do so and kindly asking me if there was anything in particular that I wanted to see in fanfic. They also asked what difference, if any, I saw in reposting fan art vs. reposting fanfic. I have decided not to make the ID of the questioner public (Hello out there! I just wasn’t sure if you wanted to stay anonymous or not ,and I figured better safe than sorry), but I am happy to answer all of these questions in detail.
• No, I do not read fanfic based on any of my fiction. The only possible exception would be for a tiny fragment/drabble of a satirical or sentimental nature (like a holiday greeting). There are no other possible exceptions.
• This does not mean I do not encourage the writing of fanfic based on my fiction. I approve of it, and heartily encourage it, but please don’t bother calling it to my attention, because I will not read it.
• One major reason for this is to cover my butt, legally and artistically. I know how my own stuff is supposed to go. I do not require or request hints, prompts, votes, or arguments on the subject. I also do not need any possible suspicion that I have plagiarized from the work of my fans and readers; a blanket refusal to read fanfic is the cheapest, most effective protection against this.
• Also, I believe it’s important to cut me out of the fanfic approval loop. When you write fanfic about my worlds or characters, you should be completely ignoring the questions of what I’d want or what I’d do. Fanfic is your chance to go happily nuts with the elements of my stuff that you like, seasoned with elements that serve your own fascinations and pleasures. I’m flattered that you might like to run your fanfic by me, but really, I am immaterial to it. Embrace the freedom to make it for yourself and your fellow readers in a canon-free environment.
• I repost visual art because it’s a medium in which I do not produce professional work of my own (just as I link to things like songs, animations, and similar shenanigans whenever I can find them). It’s really as simple as that… I can’t plagiarize someone’s paintbrush strokes, and I have none of my own for them to plagiarize, and I try to be very careful not to say things like “Oh my god, yes, this should be considered a canonical visual reference for the entire sequence!”
[2nd ask sent]– almost entirely just a complete theft of the intellectual property that they started as fan-derivative works of. so i don’t know if half of what op claims is fair? because it’s true that anne rice chased away her online fandom with a broom, but it’s not totally baseless given the circumstances. she’s not just some crazy old lady imo. sorry again, i don’t want to start a fight but i don’t agree.
Okay, so this is a HUGE topic and I could write an essay and a half on all the issues raised, but it DOES sound like you’re trying to start a fight, partly bc you submitted this on Anon (and you started w/ “this is ooc” so it’s clear you’re an RPer, infringing on the VC copyright through RP, which is writing fanfic, for free!) and partly bc of your general tone, which in all fairness I could be misreading.
I’m not sure you totally understand AR’s War on Fanfic in the early-mid 90′s, or the actual points raised in the post you disagree with so strongly, so that’s why I’m taking the time to answer.
However, for everyone’s future reference: my policy has been to answer every Ask I get but that policy is changing NOW. If I get the feeling that a message is provocative in a negative way, I won’t answer it publicly. Privately, I might, if you come off Anon.
^Louis doesn’t really want to get involved in this discussion. It’s ok, just sit there and look pretty, hun, we’ll keep this brief.
asked a question, “Why is there so little Vampire Chronicles fan activity or content?” [X], and then;
2)@the-savage-nymph-art replied to that question [X]. Brilliantly and succinctly, I would add. They even provided one of the purposes of fanfic: to share headcanons. Whether in an AU, or PWP, etc., we’re exploring the characters through storytelling.
What @the-savage-nymph-art didn’t mention is that exploring canon through writing/sharing fanfic (both for-profit and not-for-profit, I assume) predates AR’s War on Fanfic. You can do your own research on that, but here’s a good article to start with, by Ewan Morrison.
Monika Bartyzel: talks about derivative works based on fanfic (it mentions 50 Shades & Twilight, too), but focusing on the Mortal Instruments. The thrust of the argument is that TMI was TOO derivative:
“…But until a story is willing to break through the boundaries of its inspiration and drop the mimicry in favor of its own voice, it will always be as derivative as its origins — no matter how many names you change.”
(^So there is a difference between fanfic that shares headcanons to explore, and fanfic that seems to merely mimic the canon it’s derived from.)
Anon, Anne Rice no longer has an issue with Fanfic. I don’t remember what year this was posted on FB but it was, and she hasn’t mentioned it since, that I’m aware of.
^So really, with that, the argument is kind of over.
But I am definitively saying, I run this blog as respectfully of Anne Rice as I can, w/ just a little light teasing bc we do that even to our own parents! she’s given us a great gift in the VC.
This blog is about positivity and inclusivity, and arguing over whether a derivative work is worthy of being considered worth standing alone as a separate work, that’s for the courts to decide on a case-by-case basis as we define what is a “derivative” work. There are some fanworks that I love so much that I WISH they were canon, that I WISH I could buy as a beautiful physical book to repay the creators for bringing me Such Feels!
Hit the jump for just a little more.
Anon’s argument has 2 points:
A) That fanfic written for fandom and then altered by changing the character names, etc. (aka ”filing the serial numbers off”, “Hermione” becomes “Eloise” or whatever) so that it can be sold for profit, is infringing on the copyright of the original creator. Anon mentions 2 examples that are making tons of money. I’ve heard of those series and the accusations of their beginnings as fanfic. I haven’t read them or followed the reviews about them though, so I can’t comment on whether or not they really are derivative works.
B) That Anne Rice is wrongfully accused of being “just some crazy old lady” in defense of the her VC copyright.
As per Anon’s point A), this is a nebulous thing, copyright law is still being worked out for it. It’s slowly developing on a case-by-case basis, and sometimes it’s settled out of court. Look at the Unofficial Harry Potter Encyclopedia case, for example. Not a fanfic, but still, a fanwork. The judge ruled that the
Unofficial Harry Potter Encyclopedia could be published for profit, in an abridged version of how it was originally intended to be, bc it served as a reference work, so it had value, but in its entirety it would have been
unfair competition w/ a similar work that J.K. Rowling intended to release (and she is still working on, years later).
As for your point B):
Nowhere in @the-savage-nymph-art‘s reply is Anne Rice referred to as “just some crazy old lady.” In fact, it was only you, Anon, who called her “dickish.”
Actually, there are several mocking references in @the-savage-nymph-art‘s commentary to those who write fanfic, in the usual Tumblrland Hyperbole™ kind of way, which is intended to grab your attention and add a little levity to a serious and saddening topic. Don’t you get the joke, Anon? Silliness! Or can you not take it as humorous when smne mentions “your gloriously blushing butt-cheeks” ?
I disagree with you, Anon. Anne Rice has given us an incredible gift. Yes, I have mentioned that she waged War on Fanfic. That’s a fact. It’s actual history.
Fanfic sold for money w/ the serial numbers filed off, (like 50 Shades does to Twilight and the Mortal Instruments *allegedly* does to Harry Potter) well, the creators of the original works have every right to pursue copyright protection! Have they, in these cases? Because the authors of 50 Shades and the Mortal Instruments seem to be doing fine, getting movie deals an all.
Maybe the authors of 50 Shades and the Mortal Instruments were sued and settled out of court.
But maybe, in these cases, the derivative work (as Anon calls them) was sufficiently AU of the fandoms they were adapted from to constitute enough originality to be considered works that stand on their own.
Let’s see what happens when someone writes fanfic w/ the serial numbers filed off based on 50 Shades and the Mortal Instruments!
Oh wait, 50 Shades already has a parody of it, 50 Shades of Black. Let’s get popcorn and see if a legal dispute fires up…
“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: @rivkatdiscusses 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.
43 seconds into listening to it and I am horrified.
It does not get better as I continue to listen to it. Does anyone speak Japanese here? Translation needed.
Nevermind I found the translation. Still does not improve it. Ebony Dark’ness Dementia Raven Way could write SUCH better lyrics.
HOWEVER, this is great, bc the more that name gets out there, the less able certain ppl are to claim sole custody of it, so WE CAN MAKE OUR OWN DAMN MERCH WITH IT.
그리고 영어가 불편하신분들을 위해서 간단하게 작성을 했습니다: “My art was uploaded without permission on Tumblr, and I would like the post removed. This is the original link to my art (소스링크) . This is the post I would like deleted (불펌링크) .”
YOU CAN ALSO SEARCH FOR THEIR URL IN THE SEARCH BOX, CLICK ON THE PERSON’S ICON ON THEIR URL BOX THINGY, AND GO TO “FLAG THIS BLOG.”
HERE’S A QUICK STEP-BY-STEP FOR YOU. YOU CAN ONLY DO THIS IF IT IS YOUR WORK!
Fair use is … wholly authorized by the law. That’s what the 9th Circuit said today, in a ruling that will become a terrific tool to support sharing of transformative works (like fanfic, fanart, cosplay, fanfilms, filks, etc.).
Back in 2001 and 2003, when I first started writing and speaking about fair use in connection with what we’re now calling “fan law”, we did a lot of argiing by analogy. Caselaw hadn’t really caught up with how people were actually using the internet and definitely hadn’t caught up with the idea that fans of a show or book or film or band or piece of art or work of creativity would create a “follow-on work” and share it at no cost to anyone, on the internet.
But lawyers argue by analogy – we go before a court and say “this is similar to that, and thus the laws for that should also apply to this”. That’s how it works (at least in the US) so it was reasonable to say because of court rulings in The Wind Done Gone and the 2 Live Crew case re Pretty Woman, or a 1996 case in the 11th Circuit that said “
fair use is not an infringement, that (noncommercially distributed) fanworks – as transformative works – were fair use and thus were not infringements of someone’s copyright.
By and large, over the last fifteen years (and actually, through the 90s too) the courts have agreed with this concept every time something that parallels an aspect of fanworks comes before an appellate court. Click the Fair Use tag here for examples.
However, today the 9th Circuit issued its ruling in Lenz v. Universal, a case that dates back EIGHT YEARS to a pre-Google time at YouTube, when the tv networks were all freaking out about this new way that people could get content via the internet, and the music companies were continuing their perpetual angst about the idea that certain uses of songs could be, in any way noninfringing.
While Lenz doesn’t really redefine large swaths of law, it makes a few points explicit and clear:
Fair use is not just excused by the law, it is wholly authorized by the law.
A copyright holder must consider the existence of fair use before sending a takedown notification.
The DMCA requires consideration of fair use prior to sending a takedown notification…
If a copyright holder ignores or neglects our unequivocal holding that it must consider fair use before sending a takedown notification, it is liable for damages.
A copyright holder who pays lip service to the consideration of fair use by claiming it formed a good faith belief when there is evidence to the contrary is still subject to §512(f) liability.
The court also quoted a brief from transformativeworks (OTW/AO3) where we set forth when computer programs might be of use in finding infringements where “(1) the video track matches the video track of a copyrighted work submitted by a content owner; (2) the audio track matches the audio track of that same copyrighted work;and (3) nearly the entirety…is comprised of a single copyrighted work.” As you can see, that process wouldn’t be applicable for fanworks.
The ruling doesn’t mean an end to automatic takedown notices; where a file of concern matches exactly to a single copyrighted work *and* nearly the entirety of the file of concern is comprised of that single copyrighted work, bots and automated notices would still be viable.
But a video manifesting mashup culture or a story that’s a follow-on work or a meme that includes a copyrighted photo and text that comments on or criticizes something, or educational infographs should not be DMCA-ed by autobots, and any analysis by the copyright-holder of the fanfic, fanart, etc. they’re looking at mustactually look to current law regarding whether something is a transformative work/fair use/otherwise noninfringing.
Does this mean that creative fans will suddenly start experiencing fewer DMCA takedowns? Possibly, but also maybe not. But it does mean that if a creative fan gets a DMCA takedown/notification about fanworks (especially when there’s no commercial sale) the fan can and should push back on whether the sender has actually considered fair use; if it’s obvious that they haven’t, the creative fan may be able to seek damages.
Perhaps that risk of damages will be a disincentive to copyright-holders, so they focus their attention, and DMCA notices, on works that are actual counterfeits – copies of entire movies, books or tv serieses, or high resolution copies of art.
Copyright holders cannot shirk their duty to consider—in good faith and prior to sending a takedown notification—whether allegedly infringing material constitutes fair use, a use which the DMCA plainly contemplates as authorized by the law.
Also if you haven’t yet, take a look at the great candidates running for OTW board this year (the nonprofit that supports the AO3 and the Legal Committee and their advocacy work, among other awesome projects) and don’t forget to vote! (You have to be a $10 minimum dues-paying member to vote.)
[cafepress.com] saying “I would BLEED for Lestat” ?? Gross. And yet, it’s for sale, $19.99. Does anyone really want their baby offering itself to bleed for Lestat?? Pretty sure he wouldn’t approve he did eat a baby once but that was a very awkward moment and wayyyy in the past.
The fact that such tasteless things as these exist, and are for sale, makes me think AR doesn’t know (or doesn’t care?) about them.
OR, since “Lestat” is an actual name (it actually did exist before AR used it), it’s not under copyright protection in the way that “Sherlock Holmes” or “Batman” is, being completely original creations. I’ve done alot of research on this and the best answer I can find is that it would depend on whether AR chose to pursue someone for doing it, and whether the courts would decide whether the fanworks were infringing (detrimental) to her fictional character and/or sales of the novels themselves.
If anything, I feel like fanworks would promote her series and the courts would find in favor of the fanartists on this matter.
Use your own judgment. I would LOVE to make and promote VC merch, but IT IS treading on thin ice to do so.
We’ve been getting pings and @’s all morning about ebooks-tree.com who seem to be scraping/taking stories off of AO3 and hosting them as PDFs and mobi downloads on their site; the site seems to be pulling from UrBookLibrary as well. They’re not reading your “do not copy/duplicate” notes on your AO3 fic; their bots are pulling things directly from AO3, without AO3′s authorization or assent. It looks like they are pulling from Wattpad too, again without authorization or assent.
While the Ebooks-Tree DMCA page seems to imply that you need a lawyer or other “authorized person” to submit a takedown notice, you don’t; you can do it yourself.
As we’ve posted before, fanfic writers hold copyright in their stories, although not in lines/quotes from the works they’ve been inspired by, and because of that, fanfic writers can submit DMCA takedown notices, or have someone do it on their behalf. While this post isn’t legal advice (none of our posts on FYC are), you might want to consider using this template (well, the bolded bits) in telling ebooks-tree to take down your content:
Your Name and/or Pseudonym as an e-signature (or the name of the person you’ve authorized to submit this request, with a slash before it and after it): Link(s) to the unauthorized works (link to the pdf, the mobi and the page hosting all of it): Link(s) to an authorized version of your work (whether on AO3, tumblr, LJ or somewhere else): An email address of the submitter (include it again even if it’s in the header): This statement: I have good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law. This statement: The information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
(Fwiw, even though they claim that they comply with the Copyright Act, they aren’t compliant with the DMCA Safe Harbor rules, as they aren’t listed on the copyright.gov list of agents.)
You can also submit a complaint about ebooks-tree to CloudFlare, who hosts the site. Their DMCA page is at https://www.cloudflare.com/abuse/form – as a matter of law you do not need to include the legal name of the copyright claimant/the fanfic writer, but you should include the pseudonym that the fic was posted under if you don’t want to include a legal name or address.
Hey, folks. Just so you know, the OTW is aware of this, and we’re working on deciding what action we might take as an organization. For now, here are some instructions on how to request that your writing be taken off the site.
You guys, they took one of my fics ;A; I’ll be pursuing them. To check to see if they took one of yours, copy the url below and replace my pseud with yours.
I-want-my-IWTV 