Regarding Fanfiction's Legality

[lanerose]

As a disclaimer, please note that I am not a lawyer. I have, however, studied intellectual property law. This in response to this post, regarding what the author calls LJ's terrible secret - that fanfiction is illegal in and of itself. It's an interesting read, and I do recommend it, even if I disagree with it.

I disagree with the assertion that fanfiction is necessarily an infringement of copyright. In the first place, fanfiction displays a transformative effect on the initial work. While it has never been tested in court, different rulings suggest that transformative work is inherently different from a copy of a work. The derivative works clause was initially put in place to keep people from changing one or two words of a work and calling it something new. As transformative work, fanfiction falls into a category similar to the infamous work The Wind Done Gone, which is nothing if not a fanfic of Gone With the Wind. In that sense, courts have already upheld the rights of fanfiction authors.

Moreover, even if one were to presume that fanfiction was a violation in the strictest sense of copyright law, the fair use defense would apply to many fanfic authors. Many fanfic authors would like to one day be professional writers, and use fanfiction for the educational purpose of training themselves to be better writers. They post their fics in the public forum in hopes of receiving criticism and advice on how they might improve their writing. Some fanfiction contains political or social commentary. Other fanfics are very clearly parodies.

While I see what the person was getting at, I do not believe they are necessarily correct.

Comments

[jeva-chan.livejournal.com]

There's also the fact that quite a large number of us DON'T profit from writing fanfiction.

In fact, if anything, it kills our budget. *snerk and points to her most recent post*

[lanerose]

Honestly? Profit is generally considered irrelevant in terms of whether or not a work violates copyright law. The impact of a work on the original work, however, is worth discussing. Fanfic and fanart draw people into viewing the originals - particularly crossover fic, which is the way I've gotten involved in several fandoms I otherwise would never have gone near. We drum up more business for the original creators. Doujinshi in Japan are actually a really good case study / example of this. While making profit would make it harder to make the fair use argument... and while fandom can definitely make us all poor... profit itself isn't as critical to law.