Whoosh! Issue 25 - October 1998

Copyright 101
A Brief Introduction To Copyright For Fan Fiction Writers


Kinda looks like Ares' temple, don't it?


The Library of Congress -- a happenin' place for copyrights.



2.3) Can I hide under the "Fair Use Doctrine" tunic?

Fair Use is a very complicated doctrine developed for policy and utilitarian reasons. It allows you to make limited use of a copyrighted work without an author's permission. It is not a wholesale license to copy, even if you don't charge for it. By way of example, a movie critic showing clips from a movie is fair use.

Usually, only a short excerpt of the protected work is used, and it is almost always attributed.

Also, your usage cannot damage the commercial value of the original work, i.e. to the extent where people no longer need to buy the original: borrowing your classmate's book and copying it so that you don't need to buy your own copy for class is not fair use, even though it's educational use. (However, note the difference between this and "lethal parody" discussed below.)

Basically, fair use is an affirmative defense. It is only used when there's infringement. (Copy. Sec. 107). What you do when you're sued is that you admit there's infringement, but you claim your infringement to be fair use.

To decide whether or not something constitutes fair use, the courts look at:

2.3.1) the purpose and character of use;
2.3.2) the nature of the copyrighted work;
2.3.3) the amount and substantiality of copying; and
2.3.4) the market effect.

Bear in mind, however, that these factors are not exclusive, nor are they conclusive. The courts will consider all relevant factors to decide whether or not the use was fair.

2.3.1) Purpose and character of use. The courts look at a number of factors in evaluating this:

2.3.1.1) Commercial v. Transformative (derivative) use; and
2.3.1.2) Commercial v. Academic use/Research.

2.3.1.1) Commercial v. Transformative (derivative) use. For example, if you're copying/bootlegging a video tape, that's pure consumption and fair use defense will not be available. But, if you're adding your own originality to the protected parts you took and creating something that's beneficial to the society, then the use would be transformative. The court would be more likely find fair use in this situation.

2.3.1.2) Commercial v. Academic use/Research

The law provided that the use of a copyrighted work for "criticism, comment, [ . . . ], teaching, scholarship, or research," is allowable as fair use. (Copy. Sec. 107). For example, if I were to quote copyrighted works in this article, it would most likely be okay because that would fall under academic use.

2.3.2) Nature of copyrighted work. The courts might look at whether the original work is one of fiction/imagination or whether it's a fact-based work, and whether it is published or not published.

It would be more reasonable for an Author to quote fact-based work while trying to create her own work. Whereas, in the eyes of the law, it's seldom necessary for an Author to quote works of fiction, beyond academic use.

Unauthorized pre-publication use of a work is usually viewed as unfair use. The Author has the exclusive right to decide when to first publish the work, or to whom she assigns this right.

2.3.3) Amount and substantiality of copying.

In deciding this factor, the courts would often look at the qualitative and the quantitative value of the material taken. For example, if you copy a small paragraph from a long article, and that paragraph turned out to be the heart of the copied work, it would not be considered fair use.

The inquiry also focuses on whether the copied work is essential to copying work's existence. Using the same example, if your own article revolves entirely around the paragraph you copied, then the use wouldn't be fair either.

2.3.4) Market effect.

This is possibly the most important factor of all. The inquiry is whether there's a market for infringing material, and how it would affect the market for the original work.

The copyright owner has the right to reserve unexploited markets, and that includes any potential market for derivative works. However, if it is unlikely that the owner of the original work would exploit that market, it would be fair use for other persons to do so. For example, the unauthorized biographies we see popping up on book shelves; or books that take a critical view on particular T.V. shows, or other things of popular culture are examples of fair use.

Another inquiry is whether the copying work fulfills the same function as the copied work, and its importance to the sale of original work. If the functions are the same, the copying work may supersede, and would probably cut into, the original Author's market. A proof of potential harm is required, and the courts would be especially persuaded by a show of actual harm. In the case of Xena, if TPTB could show that fan fictions displace the market for the official novels (IMHO, highly unlikely), then the court may find a fanfic writer's use unfair.

Also, there is a presumption that if the use is noncommercial or if the work is transformative/ derivative, then there's no market effect unless proven by the Plaintiff. (So, be sure you aren't writing the fanfics for profit, and explicitly say so.)

One exception to this is Parody. The creation of "lethal parody", i.e. a derivative work that would kill the market for the original work, would be all right. To qualify, the work must be a parody of the work and not on society itself. However, satire is not protected and requires permission. For example, the Animaniacs comic (Feb '98, No. 34) featuring Minerxa: Warrior Princess is a parody (and a fairly hilarious one... Ok, I admit, I love WB cartoons).

Note:
The First Amendment "freedom of speech" provision is not a license to trample on legally protected rights.

That the infringing work is not published is not determinative; if the use of the infringing work is commercial, there's a presumption of market effect; fair use is a very subjective inquiry. The result often differs on a case by case basis, and may also vary according to the case law previously established in the jurisdiction where the case is brought; and while scholarship/research use is not infringement of copyright, the courts distinguish between private and commercial research, for example, research done by a scientist at I.I.T. versus one carried out by a researcher at DuPont Corp.


2.4) What kind of punishment would the Furies invoke?

Copyright infringement suit is a civil action. Because it's based on a federal statute, district court shall have original jurisdiction of the suit. (28 USC 1338).

Damages:

There's no provision for punitive damages.

Meanwhile, a single infringer of single work is liable for a single amount, no matter how many acts of infringement are involved in the action. This is true regardless of whether the acts were separate, isolated, or occurred in a related series. (So, I guess your 100-piece series of XWP fanfic is still one "act".)

Also, under certain circumstances, it could also be a criminal action, but that usually involves willful infringement for commercial purposes. (Which is not what we're doing, right? Right.)


Part 3 - More Important Stuff: What Can I Borrow?


3.1) There's this nifty song I wanna quote... Is it in the "Public Domain"?

A work falls into public domain when:

No matter how widely an Author distributes her work, and even if she does so for free, the work will not fall into public domain.

Nowadays, in order for a copyrightable work to be in public domain, the Author must expressly release it. (Saying something like "I hereby release this fan fiction into public domain" would work.) Bear in mind though, once you put something into public domain, you give up all your rights to the work, and even Zeus can't bring it back.

Works now in public domain include all 75 years old published work and pre-1964 works that weren't renewed on time.

Chances are, traditional songs are okay. Pop songs are copyrighted. Meanwhile, if you're quoting from works like the Tao Te Ching, know that while the originals are in public domain, the translations are often copyrighted, so you'll need to attribute the translators as well. Also, copyright law considers things like titles, names, short phrases,...etc., to be noncopyrightable and in public domain. However, these same things might still be protected under trademark laws, so use them with caution.


3.2) Can I use something without permission?

Anything that has fallen into public domain, you may use without permission. (You can quote Shakespeare to your heart's content, for example.) Otherwise, unless it falls into the category of "fair use" discussed above (Sec. 2.3), you can't use something without an author's permission. That's the case even if that something has no commercial value. (If a fellow fanfic writer wrote this really beautiful poem, and you want to use it in your own story, you'll have to ask for permission.) One thing though, and this is my personal belief: even though the author no longer has any legally protected rights, out of general respect for the creator and her creation, you should still cite and attribute the parts you're copying.


Part 4 - Still More Important Stuff: What Do I Have?


4.1) What's "Derivative Work"?

The law defines Derivative Work as "work based upon one or more preexisting works such as a translation, musical arrangement, dramatization, fictionalization, [ . . . ], abridgment, condensation or any other form in which a work may be recast, transformed, or adapted". (Copy. Sec. 101). Also, "[a] work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship is a 'derivative work'." (Copy. Sec. 101). In other words, a derivative work is a second generation work. It is based on preexisting material and does not imply exclusive right to the preexisting material.

Fan fictions are derivative works. Specifically, Bardwynna's excellent "Gaslight" series is a derivative work on two levels: Sherlock Holmes a la Sir Arthur Conan Doyle, and XWP.

Note:
Compilations are another type of second generation work protected by the law. (Copy. Sec. 101). To decide whether a compilation is protectable, the court will look at the following factors: originality in selection and coordination and arrangement of data.

Basically, even though novelty is not required, there must be a showing of a minimal level of creativity (i.e. alphabetical sorting is not good enough). Creative spark, subjectivity, and comprehensiveness in selections are required. Further, the copyright is on the particular arrangement and not on the works themselves. (Lunacy's fan fiction reviews are copyrightable compilations; and her copyright would include her reviews, but not the reviewed works. Whereas, a mere alphabetical listing of fan fictions on a web page is probably not a copyrightable compilation.)


4.2) Just what can a fanfic writer copyright?

"So what you've been saying is, 'I don't have much right at all!'" Well, that's sort of true. For the sake of clarification, let's review the materials we've covered so far, using concrete examples to show what you can and cannot copyright.

You can't copyright anything TPTB own. However, TPTB also can't copyright anything they borrowed from Ancient Greece ("facts"). They can probably copyright their valley girl characterization of Aphrodite ("delineated character"), but they can't legally stop you from digging into books on mythology and using any information you found on the goddess. They also can't stop you from creating another copyrightable valley girl character.

NOTE: The owner of a trademark also can't prevent someone from using her name. So, if your real name is Xena: Warrior Princess, you won't violate any trademark law for using it. (In case you're wondering, legal name change requirements may generally be obtained from your local State's Attorney's Office...)

The more you deviate from the copyrightable character, the less TPTB will have on you. For example, if your warrior has brown eyes, short hair and has a boyish figure, and her constant companion is anything but a blonde, female bard with green eyes, TPTB would probably have a very small case, if they have one at all.

Your independently created characters used in XWP stories are also copyrightable, especially if the characters are delineated. In the world of fanfic, Melissa Good's Jessan is such a copyrightable character. Many fanfic readers would be able to recognize her tribe of forest dwellers and its favorite son with merely a few descriptions.

Arguments may be made either way about (non-Jan & Mel) uber-characters, and here's my educated guess:

If you're using Jan and Mel, then your work would be derivative as well, since TPTB own them, too.

Aside from TPTB's characters, if you use other people's works in your stories, those parts/characters are not copyrightable by you either. For instance, going back to Bardwynna's series, her copyright doesn't extend to Sherlock Holmes himself.

Oh yeah, you can't copyright real characters either, but that's "sorta" common sense... For example, L. Graham wouldn't be able to claim copyright to Richard the Lion-Hearted or Prince John in "Sherwood"/"Promises to Keep". (Although I'm wondering if she couldn't copyright Peter Fitzhugh as a delineated, independently created character... at least in my mind he's nothing like our bard's 24-hour boo-boo...)

Note: You can, however, trademark a real person's name.

You can certainly copyright your own literary expressions. Here's an example: "Gone were the rainy and blustery days of early Spring. Apollo, pleased with the warming weather, spent ever more time traveling across the sky in his magnificent chariot, drawing little forest animals out to play". (de Bonheur, "And Fair Truth"). The author here cannot copyright the fact that early Spring in Greece is rainy and windy, or that the days are longer than Winter, nor can she claim copyright on the chariot-riding Apollo (public domain, non-delineated character). However, her choice of words and syntax, ...etc., are copyrightable.

Don't forget, ideas are not copyrightable either. Which means anyone brave enough can borrow baermer's ingenious idea of incorporating TPTB's characters into the Peloponnesian War - here's the caveat: you can't use her wonderful tome as your inspiration without her permission, because you would then be creating a derivative work based on her work. You may, however, go read Thucydides and use that as the basis of your work. Common inspiration based on public domain material is a legally acceptable defense.

Well, look on the bright side: at least TPTB can use ideas like hot tubs and whatnots in their episodes without worrying about some fanfic writer going after them.

You know? Here's something else worth pondering. If the "Xena Scrolls" do exist, then the characters would be fact-based. That means TPTB's works are derivative also.... Even if they aren't real, since TPTB seemed to be making them appear as such (see, the official MCA site), maybe the innocent infringer defense would be available...


4.3) What makes my partner-in-crime my "Co-author"?

Joint works required the following:

Contemporaneous intent is required for both inseparable or interdependent works; and must be formed at the time of creation/fixation (but it doesn't have to be at the same time).

In plain English, say, you're writing a story with a friend. Both writers must contribute copyrightable parts to the story. One person can't just do the editing or contribute ideas. This would not make the person a Joint Author, even if there's intent by both parties to make it a work of joint authorship. If one writer's portion is much larger than the other's, that could be circumstantial evidence regarding the parties' intent (or lack there of) to contribute a joint work.

Inseparable or interdependent work means that while each Author's parts must be independently copyrightable, the work also cannot exist without both portions. Like, your story wouldn't make sense because of missing parts, or be impossible to read for similar reasons. Contemporaneous intent doesn't require that you both sit down and write at the same time. You just both have to have the intent that the work be a joint one when the fixation process begins.

Note: Under the 1976 Act, a musician and a lyricist are not Joint Authors, rather they each have an independently copyrightable work. The musician has exclusive rights to the music, and the lyricist has exclusive rights to the words.

If you're Joint Authors, you both own undivided interest in the copyright. Unless you expressly agreed otherwise, you each own an equal part in the undivided interest, i.e. you are tenants in common. That means you each can do whatever with the work without the other's permission. However, you are to account for the other person's profits if there's commercial gain.

4.4) I think a descendant of Salmoneus (or Joxer, or both) just stole my brilliant idea! What do I do? My smart-alecky reply would be: "Tough Amazon boobies, you can't copyright ideas. Haven't you been paying attention?"

Seriously though...

For work of U.S. origin, registration is the jurisdictional prerequisite for bringing an infringement suit. Registration done within three months of publication or before infringement becomes prima facie evidence of ownership and shifts the burden to the defendant. It's also a prerequisite for statutory damages and attorney's fees.

The standard for determining copyright infringement is whether the allegedly infringing copy is substantially similar to the original work.

It's the plaintiff's burden to prove probative similarity or access.

Note: The courts often use the "inverse ration rule" in their analysis. That is, if there's little chance of access, there must be strong similarity.

Further, copy and substantial similarity can be established by circumstantial evidence. Direct evidence of copying is not required. Meanwhile, probative similarity is often based on a totality approach (more discussed below), using an ordinary observer standard.

Also, proof of ownership, registration, copyrightability, prima facie case of infringement are also required.

It's the defendant's burden to prove independent creation, coincidence and/or prior common source.

In analyzing the various factors, the courts have used:

"Total look and feel approach" is basically what it says. The inquiry is whether the copied work and the allegedly copying work look and feel the same overall.

"Subtractive approach" is the same as the "analytical approach". The courts would look at the different levels of abstraction, through filtration and comparison, and take out the non-copyrightable material to see if there's infringement.

"Verbatim similarity" is the same as "fragmented literal similarity". The courts would compare the work and see whether or not there's a finding of copying of actual expressions.

Note: Copyright does not protect against plagiarism, unless the outline/plot of the story followed the original work closely and concretely.

In reality, a work like fan fiction has little or no real commercial value, it gets very little legal protection. Besides, the court may also look at the "unclean hands" of a fan fiction writer and include that as a decisive factor. Moreover, even if you have the money and time to sue an infringer, where there will be virtually no damages award, you should bear in mind that courts don't like vindictive plaintiffs, unless the defendants are even more deplorable.

Your best recourse is probably to just talk to the alleged infringer about it and try to get her to change the work. I'm sure you've all heard this, "Be nice". Oh, and be careful with what you say in a public forum about another author's plagiarism as you wouldn't want a defamation suit in your hands.

Or, maybe Xena will let you borrow her chakram.


Part 5 - Miscellaneous Stuff


5.1) Xenaverse is a humongous place, what if I don't live in the U.S.?

Yup, our known world is getting smaller by the day. One of the Berne Convention main points is National Treatment. Under this rule, a foreign author is given the same rights in a member nation as if the author were a national of that country. For example, an Australian Author's work would be protected by U.S. copyright law in the U.S., and vice versa, as both Australia and the U.S. are signatories to the Berne Convention.

Similarly, the U.C.C. also required National Treatment.


5.2) What are my rights outside the U.S.?

There's no such thing as international copyright that would provide worldwide protection to an Author's work. Nevertheless, most countries have copyrights laws that would provide protection to the works of foreign authors.

Many countries nowadays are either signatories to the Berne Convention or to the U.C.C., both of which would provide National copyright treatment. Bear in mind though, while formalities are not permitted under Berne, the U.C.C. does not have the same provision. Which means the U.C.C. and other non-Berne countries can make an Author jump through more hoops than a circus animal to get copyright protection. However, for the U.C.C., any formalities in national law may be satisfied by the U.C.C. form with the "C-in-a-circle mark" (see, Sec. 1.5) as notice.


5.3) I run my own web page, can I link...?

To link or not to link? This, like the rest of internet publishing, is still an undecided question.

My own intuitive feeling is that an internet page is an original work, and it's fixed and stored as bytes somewhere, so it's copyrightable. So, the author has the bundle of exclusive rights. If someone expressly asked you not to link her page, then definitely don't link.

On the other hand, an argument can be made either way whether the author intends for you to link to their page or not, since they didn't expressly forbid you. When the courts rule on it, they'll probably use a "reasonable person" objective standard. In the meantime, if it's not difficult, it's probably better just to ask for the web mistress' permission. Bear in mind, however, that when you link to someone's unauthorized site, you may possibly be liable for contributory infringement. Food for thoughts, eh?

Well, that's all, folks!

"Law is a bottomless pit; it is a cormorant, a harpy that devours everything". -- Johnathan Swift


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Biography

FullName A.T. Lee
A.T. Lee is a J.D. and International Law Certificate candidate at the Illinois Institute of Technology, Chicago-Kent College of Law (May 1998), and is an L.L.B. candidate at the University of London, U.K. (2000). When she is not buried neck deep in Intellectual Property or International Law documents, she writes XWP fanfics.
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