1. Link the Writer
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    Link the Writer Flipping Out For A Good Story. Contributor

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    Could reversal plagiarism be possible?

    Discussion in 'General Writing' started by Link the Writer, Sep 13, 2015.

    Felt like picking your brains with this question.

    Imagine the scenario: An author is browsing through fanfictions of his/her work for fun when he/she stumbles upon a fanfiction that he/she really likes. The plot is compelling enough that, by God, he/she could take it and write a complete novel about it as either a sequel or a spin-off of the existing series. He/she could take it and develop it, make it stronger.

    Question: Even though the characters, the setting, the lore, etc. all belong to the author, the plot he/she is reading about kind of...doesn't. It was created by a fan. Would the author have legal right to take that plot created by the fan and use it for his/her own without permission?

    And to set the control on this scenario, the author found this on FanFiction.Net and the fan who wrote it put up the obligatory disclaimer saying he/she doesn't own any of the author's works, etc. The fan isn't trying to pass any of it as his/her own original piece.

    That was a thought that just occurred to me now. We've all heard of plagiarism when the fan rips off of the author's work, can the reverse also be true? If so, is there a way for said fan/writer of fanfiction to 'fight back' as it were? Thoughts?
     
  2. Steerpike
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    Steerpike Felis amatus Supporter Contributor

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    Plagiarism and legality are two separate issues. If the author takes the fan's work and passes it off as his own, I guess that's plagiarism. That doesn't necessarily make it illegal, or even subject to a claim by the fan. In a general sense, ideas like plotlines are not protectable by copyright. If it was very well developed and the author lifted it in substantially the same form, there might be a copyright claim available. There might be other claims apart from copyright as well, to the extent they aren't pre-empted. Cases like the one you are suggesting tend to be fact-specific when it comes to the legalities.
     
  3. OurJud
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    OurJud Contributing Member Contributor

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    People 'borrow' other plots all the time. I don't think you can copyright a plot.
     
  4. Wreybies
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    Wreybies The Ops Pops Operations Manager Staff Contest Administrator Supporter Contributor

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    My answer is Storm Constantine, but we'll get back to that in a second....

    One major factor that I think is missing from your question is the dynamic of the FanFiction author being tapped by the original author. I mean, you write a compelling Lestat fanfic and Anne Rice comes across it and she emails you to the tune of: "Hey, I really like what you did here and where you went with the character. Wanna' collaborate and make this canon?"

    Who in their right mind is going to say no to that?

    Back to Storm Constantine.... Wraeththu fanfic is so immense and popular (stories, games, cosplay, all kinds of shit) that Storm capitalized on this, set up an indi-press, and helps her fanfic fans get their work published.
     
  5. Link the Writer
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    Link the Writer Flipping Out For A Good Story. Contributor

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    Interesting, I always thought they were one and the same. It's illegal to plagiarize, that sort of thing. I imagine it'd be difficult for the fan to submit a copyright claim even if there were substantial proof that the author did lift heavily from the well-developed plotline. After all, all that stuff, excluding the plot itself, belongs exclusively to the author.


    Yeah, I'm not gonna lie, if my favorite author emailed me and said, even if it were simply, "You've found the perfect sequel for my books. I'll be sure to give you credit for this." I would think I'd have died and gone to heaven to use a clichéd phrase. :D And yeah, if someone like Stephen King asked if I wanted to collaborate with him to make a fan fiction I wrote an actual, legit book, I would say "YES, PLEASE!" I would be out of my goddamned mind to say 'no' to the once-in-a-lifetime opportunity.

    And Storm Constantine is a genius there. Hopefully, if I ever become published, I can do the same for anyone whose fan fiction impressed me. :D
     
    Last edited: Sep 13, 2015
  6. Wreybies
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    Wreybies The Ops Pops Operations Manager Staff Contest Administrator Supporter Contributor

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    Exactly, and I can't imagine why an established original author wouldn't go this route. Stealing from a fan's fanfic has nothing but bad press written all over it, regardless of the actual legalities of who owns what. What the law says and what people think is right do not always go hand in hand. On the other hand, an original author tapping a fan, recognizing their appreciation of the fanfic being written in their original world, and bringing that fanfic over into the light of canon has nothing but good press written all over it. :)
     
  7. daemon
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    daemon Contributing Member Contributor

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    Imagine that you write a novel, it becomes a hit, you write a sequel, it also becomes a hit, and these novels turn into a series.

    After a few installments, people have written 100,000+ fanfics, and you are not even done with the series.

    Looking back on your work and thinking about the best way to move forward, you gather your thoughts and sit down to write the next installment. However, you are not nearly the first person to do this. Hundreds, maybe even thousands, of fans have already moved forward with your series in the ways they thought were best, and they have posted their work online.

    At this point, the chance that what you come up with does not uncannily resemble one fan or another's work is pretty remote.

    There are authors who fear this very scenario because they do not want fans suing them (or at least giving them bad press) for copyright infringement. Some authors (I think George RR Martin is the first author I can remember making this argument) ask fans not to write fanfiction for this reason. Other authors tolerate fanfiction but avoid reading it for fear of subconsciously copying elements from it.

    So, there are authors who have an issue with fanfiction because they think the answer to "Could reversal plagiarism copyright infringement be possible?" question is "yes".

    The reality is that it depends on how much is copied. In US copyright law in general, there is a concept of substantial similarity. If all you do is slightly reword each sentence of a book, then you can be found guilty of infringement. On the other hand, if you make your work "different enough", then you will not be found guilty of infringement. It depends on the "amount" of original "substance" that is copied, which is difficult to quantify and impossible to quantify non-arbitrarily, but the courts still try to quantify it.

    I assume a fanfiction copyright case would work the same way: the court would distill the fanfic down to the original "substance" in it (original plot, original characters, etc.) and see how much of it is copied by the canon author. So it is not a question of whether or not the canon author has the legal right to use the fan's plot, but a question of how much "substance" was created by the fan and then copied by the canon author. But I cannot say for sure because I have never heard of this kind of case actually occurring. I am just making the reasonable assumption that something being fanfiction does not completely void the fanfic author's over all the creative "substance" within the work, and applying general principles under that assumption.
     
  8. daemon
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    daemon Contributing Member Contributor

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    Copyright is an artificial monopoly on the distribution of a creative work. Copyright infringement is to distribute a creative work in a way that breaks this artificial monopoly. (For example, by downloading a song, removing the DRM, and making it available as a torrent.)

    Plagiarism is to claim credit falsely for a creative work. (For example, by reading a scientific paper, taking all the information from it, writing a paper that presents the same information without citing your source, and putting your name on the paper to give the impression that you did the research.)

    Distribution and credit are separate concepts. There are laws about distribution but not about giving credit.
     
  9. ChickenFreak
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    ChickenFreak Contributing Member Contributor

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    My understanding is that if Jane creates something that uses John's copyrighted work as a component, but also includes creative work by Jane, that work is not wholly owned by either John or Jane, and neither of them could publish it without the other's consent. (Ignoring fair use factors, like Jane parodying or reviewing John's work.)

    So to me the issue is whether the original author is using any element of the fan author's work that would normally be copyrightable. The exact words certainly would be copyrightable, as would any art. I believe that the plot would not.

    Characters created by the original author are still owned by the author. What about characters created by the fan and placed in the author's world? Assuming that characters are copyrightable (a fact that I always struggle to accept, but apparently that's just my problem) I'd think that the original author could not use them without the fan's permission.
     
  10. daemon
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    daemon Contributing Member Contributor

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    One thing I do wonder is what the consequence of infringement would be. The normal consequence is that the infringer must pay damages to the infringee, right? In this case, how much would the infringer pay the infringee, and what exactly are the damages that the infringer would have to pay for? All those copies of the fanfic that did not get sold because the people who would have read them were reading the infringer's work instead? The fees that the infringee could have charged the infringer in exchange for the infringee's consent to use the material? (And yet the fanfic author is not getting sued by the same logic for using material without the consent of the one who created that material?)

    Dilemmas like this (there are countless others, regarding patents as well as copyright) are a symptom of the excessive expansion of intellectual property law over the last few centuries. Copyright used to serve a pragmatic, clearly defined, and very reasonable purpose -- incentivizing creative expression by giving the creator an opportunity to sell copies of the expression if so desired -- but it has grown into something unrecognizable and largely philosophically indefensible.
     
  11. Steerpike
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    Steerpike Felis amatus Supporter Contributor

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    @daemon if the copyright owner took the proper steps, then in the U.S. copyright allows for statutory damages. In other words, you don't have to prove damages to recover monetary damages.
     
  12. Jenurik Name
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    Jenurik Name Member

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    In actuality, the chance is astronomically high that what you would write would be completely distinct from anything anyone wrote. Exhibit A would be J.K.Rowling's Book 5, 6, and 7. Each time literally 100,000+ stories were written for them precisely by fanfiction writers trying to predict what she would do, and they all were miserably off. Nothing any of them wrote remotely resembled what the creator of the series came up with. The result would be the same for any author in that class such as G.R.R.M, especially given the greater complexity of the setting.
     
  13. Tesoro
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    Tesoro Contributing Member Contributor

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    If someone likes an authors story enough to write a fan fiction of it, I guess he or she would probably feel honored that the author chose to use it, since (from what I've heard) you can't publish fan fiction in the traditional way anyway. Just my two cents. :) But if I was the author, I would probably ask the other writer first. Don't want to piss my fans off by acting like an asshole! But in reality I'm not sure I personally would ever do such a thing as using somebody else plot anyway. :)
     
  14. Greenwood
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    Greenwood Active Member

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    I wholeheartedly disagree with this statement. Your example of Rowling's H.P is an example in hindsight that might have turned out well. Claiming at first that there were 100,000+ fanfics written and then claiming that none incorporated the same elements as Rowlings final work is just off because a) you cannot possibly have read all of these fanfics, b) neither can Rowling, and c) when there are so many authors of fanfics out there, and there might have been a few that did get it right, who says they spoke out about it?

    And then again, just because in this case Rowling came up with something entirely different doesn't mean it's not possible. Your claim of chances being "astronomically high" just makes no sense as it all depends on the complexity of the story, the amount of characters involved, the paths the story already took (and might take in the future based on that) and numerous other factors. Yes, chances might be slim that someone will come up with exactly the same thing as an author, but when you have a series read by tens of thousands if not millions, there is a good chance that 1 of those cleverly written fanfics out there has the same twists and turns.

    I'm just guessing here, but 90% of plot-twists come to be from a logical process. It can be anything leading up to it. I for one have never written a book were a hero is battling his way through intrigues and combat, only to simply be killed by a boulder that just so happens to be fall from the sky. Since fanfics tend to be set in the canon and world of the books, such good fanfics tend to "connect" to what has already happened and thus what might happen. There may be a million possible scenario's coming out from what has already been established, but if there are also thousands of people that are into it and thinking of ways to either further a plot or take a side-route, there is a good chance that it might indeed be a scenario contemplated by the author.

    Now ofcourse, another problem with this is that as such a succesful author you cannot possibly read it all, and you are always at risk of something like this happening. I'm no legal expert, but I guess that what I said above would be quite a solid argument against any claim you might get. Needless to say that honor and politeness dictate that should such an unknowing author find out about this, later on or in during the writing process, credits should be due.

    This is basically a reversed scenario of what the OP asked, and to remain on topic; I think refraining from doing this or instead doing it might both have their pro's and con's. I think that as an author you should always attempt to surprise your readers, and a very popular fanfic being made canon would kind of take that away for a lot of your "hardcore" fans. Then again, showing your appreciation of your fans' dedication and cooperating with them to further the story could also endear you to them as a caring author who is likewise dedicated to his/her fanbase. I can't comment on the legal side of this, as I both have no knowledge of them and I think most has been said already.:)
     
    Last edited: Sep 24, 2015
  15. daemon
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    daemon Contributing Member Contributor

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    I have read fanfiction that I wish had become canon simply because the story was better.
     
  16. Greenwood
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    Greenwood Active Member

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    Sure there are those cases. It's not that I intended to discredit the writers of fanfiction, on the contrary. It's all up to the author.
     

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