I know that parody and fan fiction is protected but does the creator have at least some control over what a person can or can not do in a parody? Like say I can not “violently kill the main character” or put objectionable material that might ruin the public image of the original?
Parody almost by definition means showing a distorted untrue version of what’s being parodied, and thus it’s (almost?) always been held to not be defamatory. For example, the Reverend Jerry Falwell sued Hustler magazine for a cartoon depicting him as having had incest with his mother in an outhouse. The court ruled that no reasonable person could conclude that Hustler was actually claiming it was true. That said, I have some vague memory of a case in which it was claimed that the intellectual property value of a fictional character had been harmed by a parody, but I can’t remember any of the particulars.
IANAL, but I don’t believe there is any way an author can restrict the use of a copyrighted work in a fair use situation.
I’m fairly certain an author cannot issue a press release, for instance, encouraging reviewers to review his newly released book, but tell them to not use a certain excerpt, and then be successful in suing someone for using that excerpt (assuming using that excerpt would otherwise be considered fair use).
P.S., I’m still not sure, but it might have been a case where the publishers of a “Tijuana Bible”, an x-rated parody of popular comic strip characters, were sued by the comic publishers. This was back when obscenity laws were still in force.
Doujinshi (self-published fan produced comics in Japan, generally based on existant work) is not protected, at least not in Japan; both Nintendo and if I remember correctly Disney have had doujinshi creators arrested. It is, generally, tolerated, as it can generally only increase the rabidness of a fandom, is unlikely to replace the original work, and publicising the naughty stuff certain fans produce isn’t likely to do the publisher any favors.
Yes, it’s derivitive fan comics are referred to as “parody” by the Japanese fans, but what they refer to with that use of the word is not necessarily analogous to what Mad Magazine does.
Similarly, fanfiction is generally thought to be legally gray; it hasn’t been tested in the courts yet so it’s difficult to make a definite conclusion one way or the other, but there is precedent both for and against. Most publishers and studios ignore it for similar reasons to doujinshi being tolerated in Japan, but it’s inaccurate to assume it’s “protected.”
How do you know that parody and fan fiction is “protected”?
It’s true that much parody is fair use. The case for fan fiction is harder to make. But see, Tushnet, Rebecca, Legal Fictions: Copyright, Fan Fiction, and a New Common Law, 7 Loy. L.A. Ent. L.J. 651 (1997): http://www.tushnet.com/law/fanficarticle.html And fictional characters can sometimes be trademarked, which makes things even more complicated. http://www.chillingeffects.org/fanfic/ ; http://www.chillingeffects.org/fanfic/faq.cgi#QID306
No. The only work in which an author holds such a right is a work of visual art, http://www.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00000106---A000-.html and that is defined as:
The right only protects against alteration of the original work. Parodies aren’t covered–even for works of visual art. But if you were to purchase a modern painting (subject to copyright), the author could prevent you from destroying or altering the painting itself. The U.S. only recently recognized these so-called moral rights. It had to in order to join the Berne Convention for the Protection of Literary and Artistic Works. http://en.wikipedia.org/wiki/Berne_Convention_for_the_Protection_of_Literary_and_Artistic_Works