I’ve heard that it is technically illegal to write and post to the internet a story about characters from someone else’s copyrighted work (such as a tv show, video game, or comic book).
Is this true? If it is, does it have to do with copyright law, or trademark law?
You probably would get into trouble if you plagurized the story. But if you are writing satire, and it is clearly that, it is perfectly legal. This may not stop the copyright owner from threatening you, but if you are willing to call his bluff and take it to court, you would win.
But what if it isn’t parody or the same story as what it’s based on. For example, if someone wrote my own sequel to the Matrix, and put it on the web? Could they get sued?
And if they did, would it be on copyright or trademark grounds?
But what if it isn’t parody or the same story as what it’s based on. For example, if someone wrote their own sequel to the Matrix, and put it on the web? Could they get sued?
And if they did, would it be on copyright or trademark grounds?
Using spacecat’s example:
Suppose I write a sequel to “The Matrix” (note: “Matrix 2” and “Matrix 3” have already been filmed). This is all well and good; I’m allowed by the First Amendment to write down whatever the heck I want.
Since it’s not parody, and it uses another person/company’s copyrights and/or trademarks, I am not allowed to publish it without the permission of that person/company.
Putting things on a Web page is considered publication, whether I make money from it or not.
So if I do this without getting their permission and paying their licence fees, I could get sued, but only for the amount of revenue that I caused the copyright/trademark owners to lose. If I don’t make any money off it, the worst they can effectively do is get an injunction against me and force me to remove the material from the Web.
For a sequel of “The Matrix”, I would be infringing both on a copyright (since I would be publishing a derivative work) and trade marks. As this fan page warns:
I don’t know what the penalties for trade mark infringement are.
Unless it’s for a parody, yes, fan fiction is technically a violation of copyright.
Remember, the characters in a work have the same protection as the work itself. Any works based on the original – including the use of the characters – is considered a “derivative work” and has full copyright protection. (This is further protected when characters and names are trademarked – Star Wars, Star Trek, Spider-Man, Superman, etc.)
Using the characters in the Matrix could get you sued on either copyright or trademark grounds (depending on whether the Matrix is trademarked – it’s definitely copyrighted).
Now sometimes a copyright holder may choose to turn a blind eye and allow fan fiction (Star Trek, Star Wars, etc.). If they discover a violation, they are obligated to ask it be stopped, but Paramount doesn’t go out of its way to search out Star Trek fan fiction. If they don’t know about it, they can still defend their trademarks & copyrights.
With parody/satire, all bets are off. There’s a series of Star Trek parodies which were published by a legit publisher with no legal ramifications. And the recent case of “The Wind Done Gone” seems to be upholding this right.
Well, a court recently ruled that a new parody of Gone With the Wind called The Wind Done Gone didn’t infringe on the copyright…
The owners of the copyrights and trademarks are interested in two things: money and reputation. If you’re making money in any way off someone else’s characters, you will get sued pronto. Reputation is a little more nebulous. If they feel that your fan fiction (parody or not) sullies their character’s good name, they may sue you on the grounds that you’re doing the franchise harm. Disney is notorious for stomping on anything that threatens their squeaky clean image. The example that comes to mind is their action against the underground comic Mickey Rat.
Countless videogamers (myself included) have written all manner of stories using copyrighted characters. Anime fans as well. In fact, some websites have fanfic contests complete with prizes.
Since no one’s making a profit at the expense of the originators, this isn’t an issue. I suppose they could take out an injunction against us, but it’d be a long, expensive proposition for no realistic gain whatsoever.
So while we are technically violating copyrights, no one’s losing money, the stories actually help popularize the video games/anime they’re drawn from, and lots of readers get to read plenty of great stories. Everyone benefits. No lawsuit necessary.
If only someone could’ve convinced the RIAA of that…
Damages or an account of profits (in my jurisdiction).
Account of profits means the profit you make for infringement of the copyright or trade mark.
Which is why most of the time fanfic isn’t chased by big companies - they’d only get nominal damages, and the rule is that if you only get nominal damages, you’re not entitled to costs (in my jurisdiction).
I’d heard Lucasfilms successfully sued a guy for making Stormtrooper armour and selling it - he was making a profit out of it.
So even though you’re infringing copyright and trade marks, because you don’t make a buck out of it, you’re unlikely to be chased.
(Having said that, I’ve just remembered Marvel Comics was allegedly to have gone hunting fanfic websites a while back with threats of injunctions, but I read it on a MB, and haven’t heard anything of it since.)
Of course, if the videogame or anime makers decide at some point to release printed works based on their characters (like the makers of the Myst games di), then they definitely have an interest in preventing unauthorized writers from doing the same. Especially if they were to commission and publish a printed work that had any resemblance to a fanfic. Better to nip those off at the bud.
I don’t see how you can even include this as a comparison. In the RIAA/Napster/file-sharing cases, people were trading the actual works of the artists illegally, not writing their own music based on the artists’ music.
I’m a big fan of Sci-Fi fan-fiction on the web
(Star Trek, Star Wars, Babylon 5, The Matrix, etc) and I have noticed that each fanfic has a disclaimer acknowledging
the owner for the copyrighted material, as well as a statement that the fanfic author makes no money from his
web publication.
This disclaimer usually satisfies the law and the owner.
It’s not just about money.
Companies are also concerned that their trademarks will become diluted. When a company fails to protect it’s trademarks and copyright, it will have a tough time getting a court to uphold them somewhere down the line. That’s the reason companies like Disney aggressively pursue day care centers and other small companies who improperly use their trademarks.
The ‘protect-it-or-lose-it’ thing only applies to trademarks, I think. You retain your copyrights even if you are inconsistent about who you sue.
Dave Stewart is not imagining things: Marvel and DC – or at least law firms acting on their behalf – have hit amateur, free fan-art pages with Cease and Desist letters. Primarily the kind of fan-art that involves extreme graphic detail of exactly how close were Bruce Wayne and his succession of youthful “wards”[sub]if-you-know-what-I-mean [/sub] :eek: . There is some argument whether in every single case it’s the corporation going after the fan-site in an intense enforcement effort, or rather the law firms whipping up some billables on slow days.
Copyright law is copyright law and applies to all, regardless of whether “fanmade” or “not-for-profit.” Even if there is no money issue, it’s entirely up to the creator/publisher of a work to decide if it’s worthwhile going after you just on the principle of it all – if they do the law is on their side.
Of course, the B5 people don’t like Fanfic (ISTR that they’ve explicitly forbidden it, but I’m not entirely sure), because one of their official stories turned out to be an AWFUL lot like a fanfic - they eventually gave the fanficker a writing credit on that episode, but discourage(d) any further fanfic, to avoid this problem in the future.
Actually, it does neither and would have no legal standing should the copyright/trademark holder chose to sue.
Absolutely correct. In fact, it suggests a flagrancy of infringement, entitling the owner to additional punitive damages.
A lot of whether this is legal or not depends on whether or not you’ve said “mother, may I…?”
I am involved with a forum that does generate fanfic, one where the two authors who own the copyright are active participants and actively encourage fanfic - but the authors are also the ones who get to decide who gets put up on the web site and who doesn’t. So it’s fanfic published with the consent and approval of the copyright holder and thus perfectly legal.
I also had someone take something I had posted on my own website and sell it to a hardcopy magazine under false pretenses. Had to go after that one. The magazine publisher and I came to a resolution between us without having to go to court and I actually wound up selling another half dozen pieces to them, so in the end I think we came out ahead on that. Wouldn’t want to repeat the experience though. Anyhow, the asshole who nicked my writing maintained it was somehow “public domain” just because I put it on the web. It ain’t, although I continually run into that attitude.
I have occassionally posted copyrighted works on my website, but I’m careful to obtain permission before doing so. Generally, most folks are happy to give it.
I’ve also been on the other side and granted permission to people to publish my works. I’m usually happy to give it if you ask first. If you don’t ask and I find out later I’m going after your sorry ass.
As soon as you produce a work (writing, art, music, whatever) it’s considered “copyrighted” under current law. Trick is, if you ever do wind up in court you might have to prove the work actually is yours and actually did proceed the work of whoever is challenging your copyright. Which is why people still fill out paperwork and officially register and copyright their works. Also, if you go the paperwork route you have the potential to collect punitive damages under some circumstances.
. . . and whether the copyright/trade mark holders have said, “Yes, you may.” Absolutely correct.