Monday, May 14, 2012

Is Fanfiction Legal?

If you're expecting practical advice, please look elsewhere. This is intended as a high-level discussion of copyright law in general, not a practical advisory. If you need legal advice (for example, because someone sent you a DMCA takedown notice), I recommend contacting the Electronic Frontier Foundation, as they sometimes offer pro bono assistance; even if they won't take your case, they may be able to refer you to someone who will. Please don't act on anything in this post without consulting a lawyer.

This is based on US law and may be inaccurate elsewhere.

Fanfiction is fiction involving the characters, setting, or other aspects of existing fiction, and written without the original author's permission.  Many authors approve of this practice, but quite a few others are strongly opposed to it. Worse, authors may selectively enforce their copyrights as much as they please; if, say, Alice writes something, and Bob and Carol each make some fanfiction of it, Alice has every right to ignore Bob and only sue Carol, perhaps because she likes Bob's writing better or she thinks Carol is a hack. This is the case even if Alice previously said she likes fanfiction and doesn't mind people making it.

For the sake of argument, let's just stick with this Alice/Bob/Carol example. So suppose Alice actually does sue Carol. What happens? Well, it depends. Basically, Alice will need to allege one of the following, depending on the circumstances:
  • Unauthorized distribution of the original (if the fanfiction is quite similar to the original)
  • Unauthorized preparation of a derivative work of the original (if it is).
The former is not very likely to work, unless the fanfiction contains large amounts of Alice's original text. Still, it could happen, if perhaps Carol quoted a lot of Alice's text for some reason. But it's not really relevant to our discussion, since most fanfiction doesn't have that.

Derivative works are works "based upon one or more pre-existing works." The "based upon" language suggests, to me, that a derivative work would not exist but for the original. You'll note that the statute does not say "incorporating" or "equivalent to". In fact, if the supposed derivative is "equivalent" to the pre-existing work, then it's not really a derivative at all; it's basically a copy of the original. Furthermore, Carol's derivative need not include any of Alice's text to be a derivative work.

So what are some of the defenses Carol might raise? Well, here are a few that I thought of:
  • Fair use is complicated and will be discussed below
  • Estoppel if for instance Alice said something like "everyone should feel free to create and distribute fanfiction of my work." This seems like a long-shot to me; I'm not aware of any examples of this applied to copyright law, but Carol would probably assert it anyway since it can't hurt her. Furthermore, I don't think this would work unless Alice's statement was worded like a real copyright license, as opposed to a general statement of support such as "I think fanfiction is a good thing," or even "I'm flattered when people make fanfiction of my work."
  • Innocent infringement, if Alice's publisher somehow forgot to include a copyright notice. This would likely force Carol to take down her fanfiction, but protect her from damages. I don't think any publishers are likely to forget the copyright notice any time soon, so this is largely hypothetical.
  • Bare non-infringement, predicated on the idea-expression divide. Carol may admit that she copied certain ideas from Alice's work, but insist that she never copied any protected expressions of those ideas. I have no idea whether this would work, since to the best of my knowledge it's never been tried. On the one hand, this is often associated with attempts to copyright bare facts, as in Feist v. Rural, which Alice is not doing. But on the other hand, Baker v. Selden had little to do with facts and more to do with patentable ideas versus copyrightable expressions. The terms idea and expression don't have terribly clear definitions, in my opinion.
On to fair use. There are four components:
  1. The purpose and character of the use. Carol would probably win this since she's being creative and (presumably) isn't making money from it. But if Carol's work is too similar in story structure or wording to Alice's work, Carol might well lose this one.
  2. The nature of the copyrighted work. Alice would likely win this part, since her work is (presumably) fictional and creative rather than factual and academic.
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole. This is very difficult to assess since Carol didn't copy explicit passages from Alice's work. Note that this is explicitly not "just a word count"; the "in relation" language ensures that courts consider the importance of the copied portion, rather than its absolute size.
  4. The effect of the use upon the potential market for or value of the copyrighted work. This is going to be negligible or positive, so Carol will probably win this one.
The above are not evenly weighted, and there is no simple algorithm for figuring out who won, even if you know who won each part. But in general, the fourth part is the most important, although the other parts are still quite relevant. The first part is also fairly important, especially for derivative work cases.

Personally, I'd really prefer to see Carol win, and perhaps that's distorted the outcome above. So I'm not going to say who wins, especially since a court might disagree with me about the four outcomes above. But, to be honest, I think that if Carol won parts 1 and 4, she'd probably win the whole case.

Finally, I never got an opportunity to link it, but Wikipedia has a nice article about legal issues with fanfiction, which also includes trademark law (and a few other things besides), which I never got around to discussing. In short, "I do not own" is potentially effective for trademarks, though not for copyright.

Sunday, May 6, 2012

Copyright is a subsidy

The Congress shall have Power... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. -- Copyright Clause, United States Constitution
As you can see, the rationale for copyright, in the US at least, is about promoting progress. It has nothing to do with notional "rights" of authors, and is explicitly not a property right. But the Constitution was a long time ago; maybe laws have changed focus since then. Well, no. The Copyright Act of 1790 bills itself as "An Act for the encouragement of learning." It was amended in 1831, primarily to extend it, with very little discussion of its purpose. A major revamping was undertaken in 1909, again with very little discussion of purpose. Finally, more changes were made in 1976, which is still good law, and once more, it failed to specify a purpose for copyright. The only purpose of copyright is its original purpose; no new purpose has been specified, so we must conclude that Congress was satisfied with the Constitution and the original act.

Now, of course, everything the government does is supposed to be for our benefit, in theory, though perhaps not in practice. So naturally the question arises as to whether copyright, in the above context, really qualifies as a "subsidy" per se. I think it does. A subsidy, in traditional terms, is money paid (usually by the government) to a business or industry to encourage that business model, theoretically due to positive externalities. However, in practice, the term may also be used to describe the government consistently favoring one company or industry over another in e.g. government contracts. From this, we see a broader principle: a subsidy is an action, typically by the government, which encourages a particular behavior via an economic incentive, at the cost of a reduction in competition, for the benefit of the public at large. Well, let's look at copyright through that lens. Copyright is defined as a limited monopoly granted by the government, so it's clearly an economic incentive which reduces competition. Theoretically, it's supposed to encourage the authorship and publication of creative works. This is supposed to benefit the public because of the mere existence of those works, and because, theoretically, they'll eventually enter the public domain for all to enjoy; this is a positive externality. That certainly seems to meet the criteria I specified above. Perhaps this definition is too liberal, but the principle is still there: copyright exists to benefit the public, not the author.

Now, I'm not saying that all copyright is inherently evil; I've never said that subsidies are necessarily bad. Indeed, it's thanks to copyright that we have many high-quality works. But I do feel that the reduction in competition means that there is a balance: there must be some point above which a particular subsidy does more harm than good, as the loss in competition eventually outweighs any public benefit. Of course, someone espousing a command economy would probably disagree with me on this point, but I feel the difference in opinion there is rather beyond the scope of this post. This principle applies quite nicely to copyright. Currently, copyright lasts for 70 years after the death of the author; essentially two and a half generations. It is not clear to me that this effectively "promote[s] the Progress" of anything. If it confers no benefit to the public as a whole, why are we doing it?