Whoosh! Issue 57 - June 2001

By Michela Ecks
Content copyright © 2001 held by author
WHOOSH! edition copyright © 2001 held by Whoosh!
1078 words

Fan Fiction and the Law (01-04)
More on Fair Use (05-06)
Miscellaneous Stuff (07-08)
Possible Punishment (09)


Fan Fiction and the Law

Dear WHOOSH! -- your last issue really sucked!

Gabrielle writes a little fan fiction of her own.

[01] Is Fan Fiction legal? Based on my own research[Note 01], the answer seems to be no, but you can get away with it for the most part within certain limits.

[02] Fan fiction is a form of derivative use. That is, adding original characters, stories, et cetera, to copyright protected works. A. T. Lee's article, "Copyright 101: A Brief Introduction To Copyright For Fan Fiction Authors" [WHOOSH #25 (October 1998), http://www.whoosh.org/issue25/lee1.html] seems to indicate that such material is much more likely to be viewed by the courts as a form of fair use. It also seems to indicate that it is still a violation but the punishment would be less harsh.

[03] Fan fiction does not fit under fair use for Academic/Research purposes. Word for word use of copyrighted material, including books and scripts for which a movie or show is based[Note 02], is a commercial copyright infringement and is not fair use if I understand Ms. Lee's points correctly. It appears to be more of an issue of plagiarism, something one should avoid in fan fiction. It is also why FanFiction.Net (http://www.fanfiction.net) comes down so hard on plagiarists.

[04] For the most part, articles about the legality of fan fiction appear to agree that fan fiction is illegal because it is a violation of a legal copyright and/or trademark, although John Katz's article, "In A Virtual World, Who Owns Ideas?" [Slashdot (03/13/00), http://slashdot.org/features/00/03/11/1124241.shtml] makes a compelling argument that the distance between intellectual property and ideas have become more defined and more differentiated as cyber culture grows. It further indicates that in the future, this differentiation between idea and property may lead to fan fiction being less of a legal threat and/or not as harsh a copyright violation, if one at all.

More on Fair Use

[05] Katz, though, makes note of the Digital Millennium Act that was created in order to curb the free sharing of music, movies, on-line books, and the like, protected under copyright on the Internet. A version of the Act may be found at http://www.arl.org/info/frn/copy/dmca.html. This document contains provisions that restrict materials that were once protected under the fair use doctrine. The section pertaining directly to fair use, found at http://www.arl.org/info/frn/copy/fairuse.html, discusses the purpose of the copyright and the applications of fair use under it. The part of fair use that perhaps gives the most support to fan fiction[Note 03] is found in the following sentence about what the public can do with the copyrighted material:

"To experiment with variations of copyrighted material for fair use purposes, while preserving the integrity of the original."

[06] But it should be noted that this does not discuss the distribution of that material, only that the public should have the right to experiment with it.

Miscellaneous Stuff

Sorry, Joxer, it says you're dead by the series finale.

Gabrielle awoke with a jerk in THE QUILL IS MIGHTIER.

[07] Fan fiction is illegal because it is a copyright violation, but there are some unanswered questions about its actual legal status especially as it pertains to the Internet. It should be noted that there does not appear to be much legal precedence surrounding fan fiction although there have been several cases that were dropped during the proceedings. These tended to revolve around book based fan fiction of works by Anne Rice, Mercedes Lackey, and Chelsea Quinn Yarbo. Fan sites have never really been legally challenged to my knowledge. At the time when FOX, Viacom, Paramount, and other networks were sending out cease and desist orders, most web site owners closed shop rather than take those people to court.

[08] Because of lack of judicial precedence, the legal theory around the status of fan fiction remains just that: theory. It makes the outcome of any case related to fan fiction somewhat difficult to predict.

Possible Punishment

[09] Copyright law is a matter of civil law. It is not a criminal charge. Civil law suits award monetary damages[Note 04]. If you get sued for a copyright violation and lose, you will more than likely have to pay a fine, although it is conceivable, yet also highly unlikely, that the court would only impose a permanent injunction). This fine would vary. Brad Templeton, in "10 Big Myths about Copyright Explained" [Netfunny (date unknown), http://www.netfunny.com/brad/copymyths.html] states that this fine is contingent upon how much money was lost by the copyright owner because of your violation. The article found at A.T. Lee (http://whoosh.org/issue25/lee1a.html) goes into greater detail about what the damages are. She says the following about monetary rewards for damages:

a. actual damages + infringer's profit; or

b. statutory damage of $500 to $20,000 (decided by court) (Copy. Sec. 503). For statutory damages, if there's willful infringement, the court may increase damages to $100,000. Whereas, if there's a finding of innocent infringement, the court may lower the damage to $200.


Note 01:
Links to the sites where I did most of my research for this paper can be found in the legal section of Writers University.
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Note 02:
Use of scripts word for word has gotten some sites shut down.
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Note 03:
This may be a misinterpretation on my part. I have very little actual knowledge of the law.
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Note 04:
According to an article found at http://www.netfunny.com/brad/copymyths.html, making more than 10 copies of copyrighted material valued in excess of $2500 is a felony. Depending on how this applies to the Internet, you might assume that each down load to a personal computer is a copy if you charge money or not. The article indicates that this a new and relatively untested statute so... best of luck!
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Michela Ecks Michela Ecks

Michela Ecks is a 20, almost 21 year old, senior at Northern Illinios University and majoring in Communications. She is a huge Trek fan, reads too many books and has a love of theory about the inner workings of fan culture.She collects Cookie Monsters and books by Peter David and Lois McMaster Bujold
Favorite line:Xena to Ares: "What's the matter, God of War, you afraid of a girl?"
First episode seen:SINS OF THE PAST

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