Frequently Asked Questions - Legal
Copyright is intended to protect the creator's right to profit from her work for a period of time to encourage creative endeavor and the widespread sharing of knowledge. But this does not preclude the right of others to respond to the original work, either with critical commentary, parody, or, we believe, transformative works.
In the United States, copyright is limited by the fair use doctrine. The legal case of Campbell v. Acuff-Rose held that transformative uses receive special consideration in fair use analysis. For those interested in reading in-depth legal analysis, there is a bibliography at the Fandom Lawyers LJ community.
Fair use is the right to make some use of copyrighted material without getting permission or paying. It is a basic limit on copyright law that protects free expression. “Fair use” is an American phrase, although all copyright laws have some limits that keep copyright from being private censorship.
Fair use favors uses that (1) are noncommercial and not sold for a profit; (2) are transformative, adding new meaning and messages to the original; (3) are limited, not copying the entirety of the original; and (4) do not substitute for the original work. None of these factors is absolutely necessary for fair use, but they all help, and we believe that fanworks like those in the archive easily qualify as fair uses based on all these factors.
There is a distinction between plagiarism (the unacknowledged use of someone else's words claimed as one's own), fanfiction (the acknowledged or obvious borrowing of story elements to tell a new story in the fanfiction writer's words), and quotation (the acknowledged or obvious use of small excerpts of another's work).
(By "obvious" we mean that even if a fan writer didn't put a disclaimer on her story, readers know that she did not invent Wonder Woman or Voldemort, or the phrase "Use the Force, Luke.")
Plagiarism is deceitful and prevents the original author from receiving credit for her own original work. Fanfiction and quotation are important fair uses which acknowledge the original author and her work. The OTW does not support plagiarism; we do support fanfiction and quotation.
No. While case law in this area is limited, we believe that current copyright law already supports our understanding of fanfiction as fair use.
We seek to broaden knowledge of fan creators' rights and reduce the confusion and uncertainty on both fan and pro creators' sides about fair use as it applies to fanworks. One of our models is the documentary filmmakers' statement of best practices in fair use, which has helped clarify the role of fair use in documentary filmmaking.
The mission of the OTW is first and foremost to protect the fan creators who work purely for love and share their works for free within the fannish gift economy, who are looking to be part of a community and connect to other fans and to celebrate and to respond to the media works that they enjoy.
These fans create vibrant and active communities around the work they are celebrating, tend to spend heaps of money on the original work and associated merchandise, and encourage others to buy also. They are not competing with the original creator's work and if anything help to promote it.
While some transformative works legitimately circulate in the for-profit marketplace-parodies such as The Wind Done Gone (the retelling of Gone With The Wind from the perspective of a slave), critical analyses that quote extensively from an original, "unauthorized guides," etc.—that really isn't what fanfic writers and fan creators in general are doing, or looking to do. We just want to enjoy our hobby and our communities, and to share our creative work, without the constant threat hanging overhead that an overzealous lawyer at some corporation will start sending out cease-and-desist notices, relying not on legal merit, but on the disproportionate weight of money on their side.
Not at all. The OTW does not oppose the derivative works right that allows copyright owners to authorize a mass-market film adaptation, for instance, or allows Anne McCaffrey to authorize Todd and not somebody else to commercially publish Pern sequels. The first president of the OTW is Naomi Novik, herself a professional novelist, whose work is under copyright and who has a stake on both sides.
The mission of the OTW is to support the noncommercial sharing of fanworks within fan communities.
Some transformative works do legitimately circulate in the for-profit marketplace as well: parodies such as The Wind Done Gone (the retelling of Gone With The Wind from the perspective of a slave), critical analyses that quote extensively from an original, "unauthorized guides," and other types of transformative works have long traditionally been sold.
However, these works are generally of a type which the original copyright owner would not authorize and which the courts have found should be allowed regardless of the copyright owner's consent. If you try to sell your derivative Harry Potter novel, on the other hand, you would have to make a strong case justifying your doing so without authorization from J.K. Rowling. The courts are going to be justly skeptical that you are borrowing her property for any reason other than to make yourself some cash off her characters.
We are absolutely willing to help if we can find someone with the necessary legal knowledge. Fortunately, our friends at the EFF (Electronic Frontier Foundation) are making a major effort to develop global legal expertise, and we plan to call on them in such situations. In any situation, US or non-US, we'll see what we can do based on the facts and our resources.
Right now we have no plans for a test case. We are focusing on building relationships with legal advocacy groups like the EFF and developing legal resources of our own.
One of the most exciting and helpful developments in copyright of late has been the development of "best practices," principles and procedures establishing what constitutes fair use in the judgment of a community of creative users. Best practices can successfully defend fair use rights even without litigation - see the statement of best practices in fair use. It is our position that, at a minimum, noncommercial, transformative fanworks are fair use, and the OTW will defend that position, just as the documentary filmmakers are using their best practices to make films and do business without litigation.
No, it doesn't. Profit matters, and the degree of transformative quality matters: telling stories around a campfire, freely sharing nonprofit fanfiction, summarizing plot in a book review, or making a documentary film about fans, is not the same as a major commercial derivative enterprise like making a major TV miniseries out of a novel.
Most countries have exceptions to copyright rights for various purposes. In Europe, the more common term is “fair dealing.” Countries differ in their treatment of the scope of copyright and exceptions.
For example, in Canada, parody is not a specifically recognized defense to copyright infringement, although it can be fair dealing in appropriate circumstances. Australia has limited protections regarding the freedom of communications. The Gowers Review of Intellectual Property in the UK is expected to bring about changes in UK laws regarding parody and transformative use.
In other words, it’s complicated. And it’s ever-changing.
Because the OTW and its servers are based in the US, we believe that US law applies to content in the OTW archive, even if the author is a resident or national of a different country. However, different countries make different claims about the reach of their laws. Your country of origin's laws are likely to apply to you. It is possible that some sections of the OTW policies are broader, or perhaps more restrictive, than a specific jurisdiction's laws.
Other organizations that serve an international audience are dealing with the varying legal regimes under which their users live, work and play. Creative Commons, for example, has developed a multi-step process to "port" their licenses internationally by "both linguistically translating the licenses and legally adapting them to particular jurisdictions." http://creativecommons.org/international
Ideally, we would like to develop a similar process within the OTW, but for the time being, we are happy to work with our friends at EFF when engaging in legal advocacy outside the United States. If you would like to work on non-US legal issues or education, please contact the Volunteers Committee.