1. ricebottle
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    ricebottle New Member

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    Using copyright material for free?

    Discussion in 'Self-Publishing' started by ricebottle, Feb 11, 2014.

    Hi,

    I plan on blogging or creating a website based on fan fiction (ie. my own stories based on Lord of the Rings world, Harry Potter world, etc), and I plan to use my own original story and characters along with the original characters of those books?

    Is it ok for me to use their worlds without infringing on copyright, as long as I don't make money off of it (so growing viewership, but no ads or selling the stories themselves)?

    What happens later on when I plan to sell my original stories through that website and make money off of my own original books? Would that be copyright infringement>
     
  2. ChickenFreak
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    ChickenFreak Contributing Member Contributor

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    A lack of profit is not enough to avoid a copyright claim--if it would be copyright violation if you did make money, it will very likely be copyright violation even if you don't.
     
    Steerpike likes this.
  3. shadowwalker
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    shadowwalker Contributing Member Contributor

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    Depending on the copyright holders, fanfic is accepted, encouraged, or banned. Don't know about LOTR, but I believe JK Rowling is okay with it (possibly not slash, though). But I'd find out first - a quick google search should answer that question.

    Now, as to your stories - if you're talking about actual original stories, you are the holder of the copyright and could do whatever you want with them. But do not make the mistake of calling your fanfic "original" simply because you've added your own characters and assume you can sell them. If you are using other people's worlds, you are not writing original stories. You are writing fanfic.
     
  4. mammamaia
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    mammamaia nit-picker-in-chief Contributor

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    ditto all chicken freak and shadowwalker wrote...

    that said, you should be asking a literary attorney for valid advice on this subject, not well-meaning members of a writing site [includes me]...
     
  5. Steerpike
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    Steerpike Felis amatus Supporter Contributor

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    As @ChickenFreak said, from a purely copyright standpoint, the fact that you don't make money on it won't, in and of itself, save you from a claim of copyright infringement. Plus, copyright allows for statutory damages in many cases (almost certainly in the ones you are talking about) so the fact you don't make money won't even save you from damages. Finally, defending a copyright infringement action can potentially cost you a few hundred thousand dollars even if you win.

    Best bet - get permission from the copyright owners first.
     
  6. Wreybies
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    Wreybies The Ops Pops Operations Manager Staff Contest Administrator Supporter Contributor

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    Ok, Devil's Advocate here...

    A quick googling indicates that there are like 19.5 gajillion web sites dedicated to the fervently glassy-eyed thrall that is fan-fiction. 2/3 of those sites are dedicated to every flavor of slashiness. I've seen everything from Gandolf/Arwen to Frodo/Ron Weasley (crossover). How do these sites stay on the air, so to speak?

    Again, not refuting the obviously correct information already given; just wondering how the huge morass of what is clearly contrary to aforementioned continues to exist.
     
  7. David K. Thomasson
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    David K. Thomasson Contributing Member

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    Check this and this.
     
  8. shadowwalker
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    shadowwalker Contributing Member Contributor

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    All these sites continue because, for the most part, authors and other copyright holders either don't care or actually like having fanfic written around their work (whether or not they actually read it). Not to mention that taking fanfic writers to court, in most cases, is a losing proposition. At best, the owners will collect a few dollars (can't get blood from a turnip); at worst, they get bad publicity (and lose fans) because of going after "the little guy".
     
  9. NigeTheHat
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    NigeTheHat Contributing Member Contributor

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    Copyright is civil rather than criminal, I believe - which means that the infringed party has to care enough to actually do something about it. Taking down any one of the 19.5 gajillion fan-fiction sites costs lawyer-time, and doesn't gain much for the owner - there's still 19.499999999999 gajillion sites left.

    You could try shooting one as an example to the others, but that approach didn't work so well for the RIAA, and it's hard to argue that these sites are causing the owners of the original works a significant loss of revenue.

    ETA: apparently @shadowwalker types faster than me :)
     
  10. Wreybies
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    Wreybies The Ops Pops Operations Manager Staff Contest Administrator Supporter Contributor

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    @Steerpike, is there such a thing as implied permission?

    Case in point:

    There is a HUGE fanfiction/fanart following for the show Supernatural. Because of the fact that the show is rather lacking in female parts, the fan-fiction is pretty much all slash-fic. In the run of the show there have been a few "special" episodes and also complete story arcs where things step outside the bounds of the show's universe to an extent. At the beginning of season 5 the show introduces a character who writes slash-fic about the two brothers, an obvious reference to the real-life phenomenon. This is just one of many nods the show gives to the actions and reactions of its fan-base.
     
  11. chicagoliz
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    chicagoliz Contributing Member Contributor

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    I think this whole fanfic issue illustrates that business decisions are not always the same as legal decisions. Just because one can file a lawsuit does not necessarily mean that it is in one's business interest to do so. With fanfic, some entities may see that fanfic is beneficial to the original movie/tv series/book series, while others may see it as detrimental. In both cases, the copyright holder can insist that the fanfic sites stop using their particular unique worlds and characters. It is irrelevant that the infringing use may actually benefit the copyright owner, or that the infringer didn't make money himself through the infringement. The copyright holder can deny the use of the copyright for any reason or no reason at all.

    Now, if it can be shown that the copyright holder was aware of the use of the copyright and by such acknowledgment acquiesced in the use, that may serve as at least a partial defense, at least as far as damages are determined. There is a concept in property law known as adverse possession, where someone can lose the rights to property if someone else is using it in an open fashion, the property owner has never objected nor officially said that the use is allowed until such time as the property owner may change his mind, and the use has gone on for a certain length of time. I don't think that this would succeed in a copyright setting, since there are statutory lengths of copyright protection, and I think that because there is this specific statute, that would control. I do not know whether anyone has tried this sort of defense. I suspect that there has not been a sufficient amount of time that has passed since the advent of these fanfic sites, so I don't know that there has even been a real opportunity to assert this type of argument.
     
  12. shadowwalker
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    shadowwalker Contributing Member Contributor

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    Fanfic has been around a lot longer than the internet ;) Instead of websites, there were fanzines and these were almost all fanfic (with a few actual articles). Not only that, these fanzines were sold all over the place - "for cost" only, but as recently as four (maybe five) years ago, I saw them sold at conventions. (And you can't go to a fan-style convention these days without seeing all kinds of artwork based on various TV shows/movies/etc. I've seen people connected with these shows standing around talking with the artists and actually purchasing the artwork.) So it's not a new phenomenon - just more visible now, I'd say.
     
  13. chicagoliz
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    chicagoliz Contributing Member Contributor

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    Thanks, Shadow. I didn't realize fanfic had been around for so long. I do, though, think the same analysis would apply. I still don't know whether adverse possession has been seriously suggested or attempted as some sort of defense or mitigation of damages. I would say that I don't think one wants to seek to be the test case.
     
  14. David K. Thomasson
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    David K. Thomasson Contributing Member

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    The adverse possession of real and personal property is exclusively a matter of state law enacted pursuant to the states' police power. Pursuant to the Copyright Clause in the United States Constitution, Congress has the authority to enact federal legislation governing the subject matter of copyright. In sum, the state doctrine of adverse possession as applied to copyright is preempted by existing federal copyright law. [emphasis added]

    -- in The Adverse Possession of Copyright
     
  15. chicagoliz
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    chicagoliz Contributing Member Contributor

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    Do you know whether a similar theory has ever been argued in a federal action, as an argument for mitigation of damages?
    Also, I see that this article is from 1992, and a lot has changed since then. In addition, it seems that the article is arguing that adverse possession is preempted by federal copyright law, but it does not appear that it has been accepted. In fact, the article appears to cite a case where a federal court did find it applicable. Unfortunately, I don't have time right now to read the article in full, so my impression could be incorrect.
     
    Last edited: Feb 23, 2014
  16. Devlin Blake
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    Devlin Blake Member

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    I wouldn't touch copyrighted materials. However, Amazon does have something called 'Kindle Worlds'. They purchased a license for several popular franchises. (I'm not sure who's on the list, I don't do Fan-fic) Basically, they got the permission for you, this way you can write fan-fic, legally, sell it on Kindle, and make money. (Amazon makes money, and the copyright holder makes money.) It's win-win. You might want to look into it.
     
  17. elynne
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    elynne Active Member

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    http://transformativeworks.org/projects/legal

    there's really no need to re-invent the wheel every time there's a discussion of fanfiction. like anything else, research is your friend.
     

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