Why charging for fanfic is a bad idea

[sbooth@xxxxxxxxxxxxxxxxxx]

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I appologise to those of you who will be recieving several copies
of this, 
however given the subject matter, and potential serious
repercussions, I feel 
that the widespread is justified.

Please forward to other groups if you are the moderator of the
group or have 
the permission of the moderator to do so (this is to prevent it
being forwarded 
to the same group by 100 different people).

Thankyou

Stephen
============================================================================

*Why charging for, or including advertising in, a fanfic ezine,
or fanfic
based ezine, is a bad idea.* 

Recently a proposal has been made to produce an ezine (magazine
distributed in electronic format) containing fanfic, indeed it
seems
that the principal content would be fanfic. Initially it was
suggested
that this would be charged for but when it was pointed out that
this
might be illegal the proposer changed to a free ezine containing
advertising. This is a bad idea for reasons I shall go into
later. By
way of disclaimer, I am not a lawyer, however in recent months I
have
had to investigate copyright law for various reasons. First I
shall deal
with what copyright is. 

Copyright law is a mixture of national laws and international
agreements
and treaties. It is designed to protect the interests of authors,
artists and other who create works which could be copied or which
are
deemed to have value above that of there physical parts. These
works are
generally known as Intellectual Property, as their value is
deemed to be
resulting from the intellectual input to their creation, so
Copyright
Law is often referred to as Intellectual Property Law (although
this
term also encompasses Patent Law). 

Copyright can be applied to any work really. Typically it is
applied to
books, magazine, photographs, sculptures, drawings, paintings,
audio
recordings, film, video, short stories, software etc. 

In general the copyright for a work will be held by the person
who
created it. If a person created something as part of their
employment by
a person or a company copyright will usually belong to the
employer. A
copyright notice need not be displayed on the copyrighted item
for
copyright to exist, however they do make it easier to prove
copyright if
challenged at a later date. 

Copyright essentially makes it illegal for another entity to use
material that is copyrighted to an entity (an entity can be a
person or
company) without permission. If an entity does use another
entity's
copyrighted material they can be sued and fined, in some cases
all
material relating to the breach (including equipment used to
perform the
breach) can be seized. As a minimum they would be required to
turnover
any profits they had made to the copyright holder and probably
make good
any further loss the copyright holder might claim. There are very
limited exceptions to this. the most common exception is the
concept of
'Fair Use'. 

'Fair Use' has a fairly strict definition. The relevant US
statute
clause is given below: 

------------------------------------------ 

Sec. 107. Limitations on exclusive rights: Fair use
Notwithstanding the
provisions of sections 106 and 106A, the fair use of a
copyrighted work,
including such use by reproduction in copies or phonorecords or
by any
other means specified by that section, for purposes such as
criticism,
comment, news reporting, teaching (including multiple copies for
classroom use), scholarship, or research, is not an infringement
of
copyright. In determining whether the use made of a work in any
particular case is a fair use the factors to be considered shall
include
- 

(1) the purpose and character of the use, including whether such
use is
of a commercial nature or is for nonprofit educational purposes; 

(2) the nature of the copyrighted work; 

(3) the amount and substantiality of the portion used in relation
to the
copyrighted work as a whole; 

and (4) the effect of the use upon the potential market for or
value of
the copyrighted work. The fact that a work is unpublished shall
not
itself bar a finding of fair use if such finding is made upon
consideration of all the above factors. 

------------------------------------------------------------- 

To be deemed fair use the use MUST satisfy all aspects of this
section.
Therefore photocopying a few pages from a text book or an article
from a
magazine as part of research for an assignment is fair use,
quoting a
section from a work or featuring a video or audio clip in a
review is
fair use however photocopying an entire book to avoid buying it,
scanning or typing in a work to an electronic system for storage
or
distribution or photocopying a section from a book and selling
the
photocopies for a profit would not constitute fair use.
Popculture
reference to a copyrighted work is generally accepted as fair
use. 

It is widely accepted that fanfic (using someone-elses 'universe'
in a
work of your own) does not constitute fair use. I suspect there
may be
an argument for fanfic written as part of an educational
assignment at a
recognised academic institution being fair use but that would be
difficult to argue successfully. 

Another exception is using material on which copyright has lapsed
as
copyright only lasts until 25 years after the death of the owner.


An important point about copyright is that the owner has the duty
to
protect it. That is if they are aware of a breach they are
required to
pursue it, if they can reasonably do so, else they risk being
deemed to
have abandoned the copyright. 

Whilst copyright owners are generally aware of fanfic as an
abstract
they tend to turn a blind eye to the specific instances as it is
not
reasonably feasible to pursue all those who write fanfic so it is
unlikely (pretty much impossible) that someone could use this as
a
precedent for a later more serious breach of copyright. Fanfic
tends to
"Slip in under the Radar.". This brings us onto what it is a bad
idea to
charge for a fanfic ezine or include advertising in an ezine. 

If an ezine is charged for or contains advertising it will be
deemed
that it is a commercial venture. This is something that copyright
owners
will see as a serious breach of their copyright if it contains
sizeable
quotations of or fanfic based on the works for which they hold
copyright. This will almost certainly bring prosecution of the
producer.
This is bad news for the rest of us because it would be almost
impossible for the case and judgement to be worded such that it
bans the
specific breach being committed and still protects the owners
copyright
but still allows fanfic. Also the copyright owners and the court
have no
incentive to allow fanfic, so long as they can give plausible
deniability as to it's existence we are safe. Once that is gone
they
have no choice but to prosecute all of us, or at least send cease
and
desist letters to all fanfic websites and mailing list server
owners who
carry lists that have fanfic posted to them. 

Occasionally you will find paper fanzines which carry fanfic and
are
charged for and/or carry advertising. However these will usually
have
satisfied a number of requirements. The most common one is that
Fanfic
makes up a very small (probably less than 10%) proportion of the
total
magazine and the fanzine is not charged for itself but is a small
part
of a larger fan club package which is charged for. In many cases
the
income from the fanzine only covers the production costs, there
are no
profits, and this would be unlikely to work as a defence in court
but
may help if there is other more substantive defence. Frequently
the
fanzine will have the tacit permission of the copyright holder to
include fanfic, an example of this is the Discworld fanzine 'The
Wizards
Knob' which has permission to include fanfic so long as it abides
by
certain specific rules, the result of these rules is that
Discworld
fanfic does not actually happen on the same Discworld as the
books so
isn't really Discworld fanfic, it would be like writing Buffy
fanfic
without mentioning Slayers, the Watchers Council, Sunnydale or
Vampires
(or at least not vampires who appear to be specifically based on
Buffy
vampires rather than the general mythology). 

So to protect us all I urge you : 

* Do not charge for or include advertising in any ezines which
contain
fanfic. 
* Do not place adverts in any ezine which contains fanfic. 
* Do not submit fanfic to any ezine which is charged for or
contains fanfic. 

=========================================================================
-- 
Stephen Booth, Data Integration Specialist & Spoiler Slut
We Posess Willow Power member #1589 | ICQ : 59112343  
Mobile : 07703 565 785 | WLBAAP member #17 PPOA Member #24
Cult of Amber Enlightened One #47 | Fight without fists, Spread the word and Talk Hard.
Proud member of BTVS Writers Guild : Fic makes *anything* possible