everybodyilovedies:
gefionne:
chaoticpersonal:
So I just read up on some copyright laws and found out fanart and fanfic are technically illegal. Now I’m laughing at the thought of someone getting sued in court for writing smut about their favorite character 😂
THIS IS NOT TRUE!!!!!
Fanworks are not illegal. Most all fanart and fanfic are “transformative works,” which fall under the protection of Section 107 of the U.S. Copyright Law, the statute of fair use. Fair Use allows you to use sections and elements of copyrighted material to critique, expound on, or create using that material as long as you’re creating something new. You can read about fair use here: https://fairuse.stanford.edu/overview/fair-use/what-is-fair-use/. And learn about how to decide if something is fair use using this simple guide of the four factors of fair use: https://fairuse.stanford.edu/overview/fair-use/four-factors/.
Why is AO3 built by the Organization for TRANSFORMATIVE WORKS???? Because it stands by fair use and creators of new, unique fanworks.
FANWORK IS NOT ILLEGAL. READ ACTUAL COPYRIGHT LAW.
Also know your fandom history Anne Rice used to literally sue our asses over this shit which is why old school LJ fanauthors used to always have the “don’t own not mine just playing” disclaimers on their shit
fwiw, I wrote my thesis on this and fic is neither illegal nor illegal – it’s a legal grey zone that has never been tested in any court (in the US, unless there’s an explicit law about something, we function in a common law system, meaning most of the rule of law in our country is a mish-mash of court precedents, differing and debating between jurisdictions, like this this case). There has never been a lawsuit by the copyright holder of a commercial, fictional work, against someone producing a non-commercial, derivative fictional work; thus, there is no case law about fanfic and we’re all living in the grey zone. There have been a few lawsuits from the copyright owners of commercial, fictional work against commercial, fictional derivative work; one lawsuit from the copyright owners of commercial, fictional work against a commercial, non-fictional derivative work.
But the fanwork we all make every day *may* be protected under fair use; fair use is the right the hire a lawyer, being an affirmative defense, and is rarely tested. The other affirmative defense folks might be familiar with is self-defense in the case of a murder – you say ‘yes, your honor, I did murder him, but it’s ok for x, y, z, reasons.’ Then the trial is about deciding if x, y, and z, reasons are good enough, not if you did the murder (since you had to admit it to use the affirmative defense). Using fair use is like saying, ‘yes, I did infringe on their copyright, but I believe it was acceptable’ and then you have to pay lawyers about it.
I believe that fair use for non-commercial works should be assumed, and the burden should be on the copyright holder to prove harm and infringement, rather than on the non-commercial producer to prove they are covered by fair use.
But, given that there’s no case law, and no explicit laws, tons of high-powered lawyers for commercial content producers like to make stuff up, like to send scary cease and desist letters, like to threaten fans who don’t have the money to fight back. Most major content producers have decided that terrorizing their fans is Bad Business Practice and they’ve stopped calling us all pirates and thieves and are instead madly catering to our whims (often, not always); but that’s a marketing trend, not an indication of any actual change in the status of fan works.
If you’re interested in supporting folks working to change copyright law or protect fans within it, the Electronic Frontier Foundation and the Organization for Transformative Works are excellent places to spend a bit of money, if you’re flush. Our current copyright system isn’t fulfilling its constitutional mandate to encourage the arts and sciences, since some of the most amazing creative work in both spaces is happening in exactly the grey zones we all operate in, which is not how it used to be and not how it should be.
</copyright-soapbox>
The thing about law, it’s not some Black Box you push Facts in, and you get a Decision out – it follows certain rules that you can easily study and go over yourself.
Common law countries like the US make this more difficult through the vagaries of a system based on precedent and pontification by judges; civil law countries make this more difficult through judges being biased and on power-trips and refusing to read statutory law in the abstract way it is meant to be read, that is: applied to real life at this moment in time, not in their heads, or a distant past.
(Ya, judges. Can’t live with them; can’t live without ‘em.)
Either way, worry not about your fanfic if you do it the classic way, i.e. if you don’t sell it. There’s a longer reasoning behind that, but I’d consider that the lynchpin reason.
@paticle 