"Fanfiction is Immoral"

[Enforcer Talen]

my sister was an extra on diagnosis murder once.

make a wish foundation can be pretty nce at times.

[Kuroneko]

It's not within his rights at all. Fair use is just as applicable to his work as everyone else's. This is not an issue of what Goldburg wants; it's an issue of what is legally allowable, and fanfiction is perfectly within fair use guidelines.

Well, I see I must concede that some particular works fanfiction may clearly fall under fair use, especially those explicitly parodying the original, and perhaps those in commercially dead franchises, but claiming that categorically is another question entirely. The work's transformative nature is not an automatic escape clause; it simply shifts the issue a bit. If the transformative nature of the work is established, the key factor is then the lack of potential harm to the market, including potential (not currently existing) markets. The burden of proof here is on the defendant, since fair use is an affirmative defense, and works of fanfiction that are continuations of currently released material are clearly at a particular disadvantage here. If one has a reasonable argument that the work has a favorable effect on the market, then arguably there is a substantial likeness between the work of fanfiction and the original. But in that case, was it really transformative enough to qualify as fair use in the first place?

If you have a positive argument on this matter, I'd be interested in hearing it.

[Durandal]

Well, I see I must concede that some particular works fanfiction may clearly fall under fair use, especially those explicitly parodying the original, and perhaps those in commercially dead franchises, but claiming that categorically is another question entirely.

Fan-fiction is something that, by its very nature, is non-profit.

The work's transformative nature is not an automatic escape clause; it simply shifts the issue a bit. If the transformative nature of the work is established, the key factor is then the lack of potential harm to the market, including potential (not currently existing) markets. The burden of proof here is on the defendant, since fair use is an affirmative defense, and works of fanfiction that are continuations of currently released material are clearly at a particular disadvantage here. If one has a reasonable argument that the work has a favorable effect on the market, then arguably there is a substantial likeness between the work of fanfiction and the original. But in that case, was it really transformative enough to qualify as fair use in the first place?

If you have a positive argument on this matter, I'd be interested in hearing it.

Granted, the original author is free to sue you into the ground for writing fan-fiction, if he has enough money. However, the only potential harm for the market I've seen presented is Terwynn's, in which someone who's never watched the show reads a bit of fan-fiction and then bases his impression of the show on that work.

However, I'd have to say that this is an extremely unlikely scenario. First of all, if someone doesn't watch the show, why would he reading fan-fiction about it? And further, why would a reasonable person not be able to distinguish between officially-sanctioned works and fanfics, which almost always bear very explicit disclaimers saying that the work is not endorsed by the creator? The possible damage done through this scenario is minuscule, if not non-existent. Secondly, that logic could be used to prohibit people from telling other people about copyrighted works. The artist does not have control over how individuals are first exposed to his work, only the general public, through publishing. If fanfiction is copyright infringement on the grounds of potential market loss only, the copyright holder could sue my friend for telling me not to bother with a certain movie or TV show.

So, on the "This is Fair Use" end of the argument, we have the following:

1. No direct profit is being derived from the work of fan fiction.
2. No appreciable market appeal is being lost as a result of this work existing.
3. The work is transformative.
4. The work includes a disclaimer, explicitly stating that it is not endorsed by the original author.
5. The original work is (almost always) a published work.

This seems like a pretty solid Fair Use case, to me.

[Kuroneko]

Fan-fiction is something that, by its very nature, is non-profit.

This fact does not legally immunize it.

Granted, the original author is free to sue you into the ground for writing fan-fiction, if he has enough money. However, the only potential harm for the market I've seen presented is Terwynn's, in which someone who's never watched the show reads a bit of fan-fiction and then bases his impression of the show on that work.

Franchises like Star Trek and Star Wars have large amounts of fiction produced by third-parties. It is highly suspect that fanfiction in those areas does not actually damage those markets, which are derivative works of the originals and therefore also covered by copyright law. In the more general case, it does not matter whether or not the copyright infringement has occured for an original work which does not actually have this sort of market, since damage to potential markets is also an equally important issue. The only reasonable defense against this is in the event the franchise is commercially inactive, but that is not true for a substantial amount of fanfiction.

However, I'd have to say that this is an extremely unlikely scenario. First of all, if someone doesn't watch the show, why would he reading fan-fiction about it? And further, why would a reasonable person not be able to distinguish between officially-sanctioned works and fanfics, ...

Perhaps to find out if it is worth watching. Or reading. However, distinction with the original is more a trademark issue rather than a copyright one. Although also important, it is not directly relevant to the current question.

... which almost always bear very explicit disclaimers saying that the work is not endorsed by the creator? The possible damage done through this scenario is minuscule, if not non-existent.

Disclaimers are have no legal meaning whatsoever. Providing them is a courteous thing to do, and may invite some leniency from a court, but whatever effect they may have is entirely psychological.

Secondly, that logic could be used to prohibit people from telling other people about copyrighted works. The artist does not have control over how individuals are first exposed to his work, only the general public, through publishing. If fanfiction is copyright infringement on the grounds of potential market loss only, the copyright holder could sue my friend for telling me not to bother with a certain movie or TV show.

Of course not! The copyright holder does not have recourse against even highly damaging public criticisms. However, unless you claim that fanfiction is made for the purpose of providing comment and criticism of the original material, or other such things that qualify under the copyright law (e.g., academic or parody), this point has no ground to stand on.

So, on the "This is Fair Use" end of the argument, we have the following:

• No direct profit is being derived from the work of fan fiction.

This is a good thing; if the fanfiction author was profiting from it, it would indeed be a very big issue indeed. However, the lack of profit per se is far from an automatic pass.

[*]No appreciable market appeal is being lost as a result of this work existing.

No loss of 'appreciable' market appeal? Considering shoplifting a fifty-cent lighter is still illegal, I do not find the magnitude of the effect of a particular work to be of much import, which is not the real issue anyway. Rather, it is the net effect of the kind of fanfiction it is that is important, which may be significant to real and potential markets. It is not at all unreasonable for a copyright holder to attempt to control fanfiction output by pursuing only a few individual cases, the individual effect of which may indeed be negligible. In the previous example of a franchise with a large amount of third-party commercial fiction, the fanfiction authors are providing, free of charge, essentially the same kind of things that the franchise seeks to profit from! How is undue competition non-damaging?

In the case that the franchise does not have an actual market of this kind, this kind of argument may be a good pragmatic reason for the copyright holders to not even bother trying to regulate fanfiction (considering rabid enforcement would likely lead to negative publicity, which in the end may be much more hurtful), but nevertheless it has no legal merit.

[*]The work is transformative.

Some may be, others not so. Suppose the author keeps the characters and the setting, and produces an original plot that is in the same spirit as the original, particularly if the original work is episodic in nature. As a very extreme example, witness the formulaic stupidity that is the Power Rangers (and sentai in general). It is nigh-impossible to imagine a work of fanfiction with those criteria that is distinguishable in its essense from a random episode of that drivel. There is absolutely nothing transformative about cases like that. Most cases will not be that extreme, but it makes it clear that simply slapping on a different plot on the same characters with the same setting is not enough. Some works may genuinely circumvent this criticism by some means, but the point is that fanfiction does not automatically entail transformative fiction.

Of course, some works of fanfiction may be highly transformative. But even once the transformative nature of the work is actually established, that is only the first step. All of the above regarding market impact applies, except for works which are explicitly parodies, commentaries, or criticisms.

[*]The work includes a disclaimer, explicitly stating that it is not endorsed by the original author.

A nice touch, but this is not legally relevant.

[*]The original work is (almost always) a published work.[/list]

Hn?

This seems like a pretty solid Fair Use case, to me.

I see no reason whatsover why a court would find it such in general. In fact, for a significant amunt of fanfiction, I think the the evidence is clearly to the contrary.

[Durandal]

Franchises like Star Trek and Star Wars have large amounts of fiction produced by third-parties. It is highly suspect that fanfiction in those areas does not actually damage those markets, which are derivative works of the originals and therefore also covered by copyright law. In the more general case, it does not matter whether or not the copyright infringement has occured for an original work which does not actually have this sort of market, since damage to potential markets is also an equally important issue. The only reasonable defense against this is in the event the franchise is commercially inactive, but that is not true for a substantial amount of fanfiction.

I don't know what Fair Use reference you're using, but just so we're on the same page, I'm using Stanford's reference.

The most applicable example to fan fiction I can think of is this one:

4. The Effect of the Use Upon the Potential Market

Another important fair use factor is whether your use deprives the copyright owner of income or undermines a new or potential market for the copyrighted work. As we indicated previously, depriving a copyright owner of income is very likely to trigger a lawsuit. This is true even if you are not competing directly with the original work.

For example, in one case an artist used a copyrighted photograph without permission as the basis for wood sculptures, copying all of the elements of the photo. The artist earned several hundred thousand dollars selling the sculptures. When the photographer sued, the artist claimed his sculptures were a fair use because the photographer would never have considered making sculptures. The court disagreed, stating that it did not matter whether the photographer had considered making sculptures; what mattered was that a potential market for sculptures of the photograph existed. ( Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992).)

So, the court ruled that taking all the elements of a work and using them as a basis for another work was illegal because a potential market for the derivative works existed. This reason is irrelevant to fan fiction, because there is no fan-fiction market. Fan-fiction is non-profit.

Perhaps to find out if it is worth watching. Or reading. However, distinction with the original is more a trademark issue rather than a copyright one. Although also important, it is not directly relevant to the current question.

Sure it is. You can't just come out and say, "Fan fiction potentially damages potential markets" without qualifying that claim with a plausible scenario at all. Use of a copyrighted work is not inherently damaging.

Disclaimers are have no legal meaning whatsoever. Providing them is a courteous thing to do, and may invite some leniency from a court, but whatever effect they may have is entirely psychological.

That's true, but they have been known to "tip the balance" in the defendant's favor from time to time.

Secondly, that logic could be used to prohibit people from telling other people about copyrighted works. The artist does not have control over how individuals are first exposed to his work, only the general public, through publishing. If fanfiction is copyright infringement on the grounds of potential market loss only, the copyright holder could sue my friend for telling me not to bother with a certain movie or TV show.

Of course not! The copyright holder does not have recourse against even highly damaging public criticisms. However, unless you claim that fanfiction is made for the purpose of providing comment and criticism of the original material, or other such things that qualify under the copyright law (e.g., academic or parody), this point has no ground to stand on.

And a fanfic leaving a bad taste in a reader's mouth is simply not the author's fault. It's not reasonable to expect a fanfic author to write something which everyone will like.

Furthermore, what if my friend didn't offer criticism of a TV show, but instead transcribed its events to me, and then I decided that I didn't like it? Would that be legally actionable? For example, I asked a co-worker what the "big twist" at the end of the movie The Village was. He told me, and I thought it was just stupid and absurd. As a result, I do not plan on seeing the movie. That's one Shamalamadingdong ticket sale not made.

This is a good thing; if the fanfiction author was profiting from it, it would indeed be a very big issue indeed. However, the lack of profit per se is far from an automatic pass.

No, but it creates a very strong case for Fair Use, especially in light of other factors.

[*]No appreciable market appeal is being lost as a result of this work existing.

No loss of 'appreciable' market appeal? Considering shoplifting a fifty-cent lighter is still illegal, I do not find the magnitude of the effect of a particular work to be of much import, which is not the real issue anyway. Rather, it is the net effect of the kind of fanfiction it is that is important, which may be significant to real and potential markets. It is not at all unreasonable for a copyright holder to attempt to control fanfiction output by pursuing only a few individual cases, the individual effect of which may indeed be negligible. In the previous example of a franchise with a large amount of third-party commercial fiction, the fanfiction authors are providing, free of charge, essentially the same kind of things that the franchise seeks to profit from! How is undue competition non-damaging?

Define "competition." By reading the fanfic, is the reader less inclined to or prohibited from reading, watching or experiencing the original when he would have had he not read the fanfic? I wouldn't think so.

Shop-lifting and copyright infringement are not two relatable legal scenarios. The former deprives the original owner of something material without compensation. The latter does not deprive the owner of anything.

Most stores don't even file charges against shop lifters unless the stolen amount is significant. If some teenager boosts an ear-ring and gets caught, they'll simply ban him from the store. But your point of the cumulative effect is taken.

However, the fact that there are lots of people writing fan-fiction doesn't translate to lots of money lost for the original copyright holders. I still have not heard a plausible scenario for which the copyright holder is damaged by fan-fiction.

In the case that the franchise does not have an actual market of this kind, this kind of argument may be a good pragmatic reason for the copyright holders to not even bother trying to regulate fanfiction (considering rabid enforcement would likely lead to negative publicity, which in the end may be much more hurtful), but nevertheless it has no legal merit.

That pragmatic reason is a practical and legal boon for fan-fiction being Fair Use. If no potential market of fan-fiction exists for the original copyright holder, then there is no potential market to damage.

[*]The work is transformative.

Some may be, others not so. Suppose the author keeps the characters and the setting, and produces an original plot that is in the same spirit as the original, particularly if the original work is episodic in nature. As a very extreme example, witness the formulaic stupidity that is the Power Rangers (and sentai in general). It is nigh-impossible to imagine a work of fanfiction with those criteria that is distinguishable in its essense from a random episode of that drivel. There is absolutely nothing transformative about cases like that. Most cases will not be that extreme, but it makes it clear that simply slapping on a different plot on the same characters with the same setting is not enough. Some works may genuinely circumvent this criticism by some means, but the point is that fanfiction does not automatically entail transformative fiction.

It may not be enough if the work was making money. The key point in Rogers v. Koons was that the artist was making money from a potential market.

Of course, some works of fanfiction may be highly transformative. But even once the transformative nature of the work is actually established, that is only the first step. All of the above regarding market impact applies, except for works which are explicitly parodies, commentaries, or criticisms.

All I've seen is nebulous claims of market impact, when by your own admission, there exists no potential fan-fiction market to impact.

[*]The original work is (almost always) a published work.[/list]

Hn?

If a "Fair Use" claim involves an unpublished work, it will almost certainly be invalid. The copyright holder has the right to control the initial exposure of his work to the public through publishing.

I see no reason whatsover why a court would find it such in general. In fact, for a significant amunt of fanfiction, I think the the evidence is clearly to the contrary.

I disagree. You've given no scenario for which market damage could be done and admitted that no fan-fiction market, potential or otherwise, exists for the original copyright holder.

[Darth Wong]

The lack of a selling price does not, as Kuroneko states, immunize something from copyright violation (after all, pirated MP3s are given away for free, and there is no dispute that there is a copyright violation). The key is the question of whether it is a case of legitimate "market substitution". If it can be shown that the fanfic market and the official literature market are distinct, then there is no chance of such direct competition. After all, music parodies are protected as "fair use" even though they borrow heavily from a copyrighted work without permission because the two products do not directly compete. "Weird Al" Yankovic asks for permission because he wants to, not because he has to.

[Kuroneko]

So, the court ruled that taking all the elements of a work and using them as a basis for another work was illegal because a potential market for the derivative works existed. This reason is irrelevant to fan fiction, because there is no fan-fiction market. Fan-fiction is non-profit.

Fanfiction considered as a literaly work alone is a potential marker; this is undeniable--the Star Wars fiction in particular has a large amount of it that is only loosely connected with the movie canon. The third-party published material is of the same essential nature type as much of fanfiction; the only difference is that it is for-profit, but fanfiction is non-profit by virtue of definition only. By using this as a defense, you're simply begging the question.

Sure it is. You can't just come out and say, "Fan fiction potentially damages potential markets" without qualifying that claim with a plausible scenario at all. Use of a copyrighted work is not inherently damaging.

Your point there was the chance of confusion with the original. I've simply pointed out that this is a trademark issue, not a copyright one.

That's true, but they have been known to "tip the balance" in the defendant's favor from time to time.

I'm not completely dismissive of its potential value, simply that it is a psychological effect rather than a legal factor. It would be highly advisable for anyone to be courteous during a trial, for example.

And a fanfic leaving a bad taste in a reader's mouth is simply not the author's fault. It's not reasonable to expect a fanfic author to write something which everyone will like.

Quality doesn't make any difference. If it is a superb literary work, then it is competition in the potential market of third-party fiction. This situation is practically a Catch-22.

Furthermore, what if my friend didn't offer criticism of a TV show, but instead transcribed its events to me, and then I decided that I didn't like it?

Of course not. However, there are several actions on the Internet which are legally identical to publishing. Let's not confuse your friend's private statements with those.

No, but it creates a very strong case for Fair Use, especially in light of other factors.

Non-profitability is a necessary requirement, but it creates nothing at all by itself. Scanning a book and posting the text on the internet is a non-profitable action, but it is clearly illegal. It is the "other factors" which decide everything in a situation like this. Non-profitability is necessary for Fair Use, but it is very far from sufficient.

Define "competition." By reading the fanfic, is the reader less inclined to or prohibited from reading, watching or experiencing the original when he would have had he not read the fanfic? I wouldn't think so.

The lack of effect on the original material itself is largely irrelevant. It is the fact that the original material (e.g., Star Wars movies) could produce a market in derivative works (e.g., Star Wars books). By your own quoted text, harm to potential markets is a legal consideration. And yes, the availability of fanfiction does make it less likely for someone to participate in that market, particularly if the literature there is mediocre. However, even in such cases, "it's their fault because they suck" might even make sense, but it is not a legal defense by any stretch of the imagination.

Shop-lifting and copyright infringement are not two relatable legal scenarios. The former deprives the original owner of something material without compensation. The latter does not deprive the owner of anything.

Proof of this fact is what is required, and as for any fair use defenses, the burden of proof would be on the side of the fanfiction author. There is no reasonable defense for it unless it is not in a commercially active franchise.

However, the fact that there are lots of people writing fan-fiction doesn't translate to lots of money lost for the original copyright holders. I still have not heard a plausible scenario for which the copyright holder is damaged by fan-fiction.

There is harm to the potential market of third-party fiction. That's all that's legally necessary, by your own reference. It is not necessary for the losses to be large; prosecuting a shoplifter for a fifty-cent lighter may be pragmatically ridiculous, but the store would still be within their rights if they chose to do so.

That pragmatic reason is a practical and legal boon for fan-fiction being Fair Use. If no potential market of fan-fiction exists for the original copyright holder, then there is no potential market to damage.

A typical work of fanfiction is a story of the same characters and setting in a different situation, or perhaps an exploration of the background of a character/place/group/etc., or even a 'what if?' alteration of the plot. All of those are clearly a potential market--indeed, almost the entirety of ST and SW published fiction falls in the first two categories!

It may not be enough if the work was making money. The key point in Rogers v. Koons was that the artist was making money from a potential market.

Harm to market, actual and potential, is clearly not a question of profitability alone, as the book-scanning example demonstrates.

All I've seen is nebulous claims of market impact, when by your own admission, there exists no potential fan-fiction market to impact.

What? I admit no such thing! In fact, my point throughout this discussion has been the very opposite--that literary work of the same type as fanfiction is indeed a potential market.

If a "Fair Use" claim involves an unpublished work, it will almost certainly be invalid. The copyright holder has the right to control the initial exposure of his work to the public through publishing.

Posting material on websites and ftp sites legally counts as publishing.

I disagree. You've given no scenario for which market damage could be done and admitted that no fan-fiction market, potential or otherwise, exists for the original copyright holder.

I've admitted no such thing, and consistently argued the very opposite for commercially active franchises. As for scenarios, I believe the ST and SW fiction markets are example enough.

[Kuroneko]

If it can be shown that the fanfic market and the official literature market are distinct, then there is no chance of such direct competition. After all, music parodies are protected as "fair use" even though they borrow heavily from a copyrighted work without permission because the two products do not directly compete.

Parodies are explicitly protected by the fair use clause. On the other hand, Durandal's reference shows that even indirect competiton with non-existing potential markets is enough for it to not be fair use.

[Darth Wong]

If it can be shown that the fanfic market and the official literature market are distinct, then there is no chance of such direct competition. After all, music parodies are protected as "fair use" even though they borrow heavily from a copyrighted work without permission because the two products do not directly compete.

Parodies are explicitly protected by the fair use clause. On the other hand, Durandal's reference shows that even indirect competiton with non-existing potential markets is enough for it to not be fair use.

Not if the fanfic market can be shown to be defined in such a manner that profits are impossible, which happens to be the case. No one pays for fanfic, which is basically defined as free fan-authored original fiction set in a well-known fictional universe.

EDIT: I suppose one might argue that the entire fanfic market takes away from the official published literature market, but that would be quite a stretch. It is generally recognized that fanfic events are not what "really" happens in the fictional universe in question. And the use of a narrowly defined "parody" exclusion leads to some rather bizarre conclusions, such as the notion that it would be all right to write fanfic if it's really stupid.

[Kuroneko]

Not if the fanfic market can be shown to be defined in such a manner that profits are impossible, which happens to be the case. No one pays for fanfic, which is basically defined as free fan-authored original fiction set in a well-known fictional universe.

And again, that's begging the question. A fanfiction authors could conceivably turn around publish the very same work in book form, provided permission is given and royalties are paid, etc. There is indeed a potential market for work of the same nature. A hypothetical doctor which practices free of charge (let's assume he has a large family fortune) is definitely hurtful to the practices of the doctors in the surrounding area, because the nature of their services is the same. The only difference is that medical practice is not copyright-protected.

[Darth Wong]

And again, that's begging the question. A fanfiction authors could conceivably turn around publish the very same work in book form, provided permission is given and royalties are paid, etc. There is indeed a potential market for work of the same nature.

Obviously, publishing a fanfic as a book for sale would be a copyright violation. It does not follow that any informally written and distributed story falls into the same category.

[Kuroneko]

EDIT: I suppose one might argue that the entire fanfic market takes away from the official published literature market, but that would be quite a stretch. It is generally recognized that fanfic events are not what "really" happens in the fictional universe in question.

However, there is a potential market for things not "really" happening in the original fictional universe. Marvel Comics, for example, had several series based on precisely this premise.

And the use of a narrowly defined "parody" exclusion leads to some rather bizarre conclusions, such as the notion that it would be all right to write fanfic if it's really stupid.

Nevertheless, it is the US copyright law, and was the deciding factor in cases like Pretty Woman (Campbell v. Acuff-Rose Music). Weird Al's music is of the very same type, excepttAcuff-Rose did not ask permission beforehand. Nevertheless, the Supreme Court ruled in their favor.

[Durandal]

EDIT: I suppose one might argue that the entire fanfic market takes away from the official published literature market, but that would be quite a stretch. It is generally recognized that fanfic events are not what "really" happens in the fictional universe in question.

However, there is a potential market for things not "really" happening in the original fictional universe. Marvel Comics, for example, had several series based on precisely this premise.

But what exactly is preventing a licensed author from using some material from a fanfic? As I understand it, the caveat with fanfics is that the writer is not protected against the original author or licensed authors using that work. So whatever a fanfic author writes could be duplicated and sold by the original author.

A hypothetical doctor which practices free of charge (let's assume he has a large family fortune) is definitely hurtful to the practices of the doctors in the surrounding area, because the nature of their services is the same.

Invalid analogy. You must show that, as a result of reading fan-fiction, the reader is inclined to not read or experience the original (or the works of licensed authors) whereas before reading fan-fiction, he would have read those books.

Gotta run to class. I'll look at the rest later.

[Kuroneko]

But what exactly is preventing a licensed author from using some material from a fanfic? As I understand it, the caveat with fanfics is that the writer is not protected against the original author or licensed authors using that work. So whatever a fanfic author writes could be duplicated and sold by the original author.

Now you are claiming that fanfiction is not copyright protected? But fair use works are! A parody is fair use, but that doesn't mean I or the current LoTR copyright holders can simply copy Bored of the Rings. If they have no such protection, then either they are not fair use or are unauthorized derivative works. Either way, the copyright owners of the original would have full rights to control circulation of such work, and stop it if they chose to do so.

Invalid analogy. You must show that, as a result of reading fan-fiction, the reader is inclined to not read or experience the original (or the works of licensed authors) whereas before reading fan-fiction, he would have read those books.

Suppose the derivative work of fiction which does not happen in the original fictional universe. This would be a work of precisely the same nature as typical fanfiction, for which there is a potential market (similar to Marvel's What If? series). For a potential fan that is not sufficiently addicted to have some sense of brand-name loyalty or the like, the primary motivation for buying something is simply enjoyement. What is the incentive for such a person to pay for such work when the same type is available elsewhere free of charge?

[General Zod]

Suppose the derivative work of fiction which does not happen in the original fictional universe. This would be a work of precisely the same nature as typical fanfiction, for which there is a potential market (similar to Marvel's What If? series). For a potential fan that is not sufficiently addicted to have some sense of brand-name loyalty or the like, the primary motivation for buying something is simply enjoyement. What is the incentive for such a person to pay for such work when the same type is available elsewhere free of charge?

It may be the same type but it's by no means the original which inspired the fanfiction in the first place. Incentive may be as simple as piquing a fan's curiosity to see what the original series is about. If anything it spreads awareness of the original author's series to fans of works derived from it who may not otherwise have taken an interest or noticed through regular means (though this would be the vast minority). The fanfiction wouldn't exist without a series to base it off of, after all.

[Durandal]

But what exactly is preventing a licensed author from using some material from a fanfic? As I understand it, the caveat with fanfics is that the writer is not protected against the original author or licensed authors using that work. So whatever a fanfic author writes could be duplicated and sold by the original author.

Now you are claiming that fanfiction is not copyright protected? But fair use works are! A parody is fair use, but that doesn't mean I or the current LoTR copyright holders can simply copy Bored of the Rings. If they have no such protection, then either they are not fair use or are unauthorized derivative works. Either way, the copyright owners of the original would have full rights to control circulation of such work, and stop it if they chose to do so.

I seem to remember something about a fanfic author suing the original author for using the idea, and the fanfic author losing.

Suppose the derivative work of fiction which does not happen in the original fictional universe. This would be a work of precisely the same nature as typical fanfiction, for which there is a potential market (similar to Marvel's What If? series). For a potential fan that is not sufficiently addicted to have some sense of brand-name loyalty or the like, the primary motivation for buying something is simply enjoyement. What is the incentive for such a person to pay for such work when the same type is available elsewhere free of charge?

The incentive would be "for the sake of completeness." And for a fan as you describe, this is perfectly plausible.

Anyway, I've done more research on the issue, and it seems to boil down to a simple matter of fanfics being derivative works. According to US copyright laws, derivative works are under control of the original copyright holder, so fanfics do infringe at least to some degree. So fair use would not seem to apply.

However, they're generally tolerated, and I still don't buy into a scenario where a freely-published fanfic actually deprives the copyright holder of income. Nor do I buy the claim that it's immoral.

[Kuroneko]

I seem to remember something about a fanfic author suing the original author for using the idea, and the fanfic author losing.

That's exactly the point. If the fanfic author's work was genuinely fair use, the lawsuit would have succeeded, because then the fanfiction would have been protected in its own right.

The incentive would be "for the sake of completeness." And for a fan as you describe, this is perfectly plausible.

Insufficiently addicted to have brand loyalty, such a fan would not be compelled to complete a collection of spin-offs, since they do not deal directly with the original work of which s/he is a fan of, particularly in the case that works of the same nature are available free of charge.

Anyway, I've done more research on the issue, and it seems to boil down to a simple matter of fanfics being derivative works. According to US copyright laws, derivative works are under control of the original copyright holder, so fanfics do infringe at least to some degree. So fair use would not seem to apply.

Indeed, and that was my point when I argued that typical works of fanfiction are not transformative enough to qualify.

However, they're generally tolerated, and I still don't buy into a scenario where a freely-published fanfic actually deprives the copyright holder of income.

Most are willing to leave well enough alone, but this matter is not monolithic. The copyright holders could, for example, make a very strong case against types of fanfiction that are perceived as being detrimental to the intended image of their work--e.g., Lucasfilm's stance against potraying Luke as homosexual. More generally, the gradual replacement of canon with `fanon', which inevitably happens in developed areas of fanfiction, is difficult to justify as positive. Cases like these are rather nebulous, but in a court it this would work against the defendant rather than the plaintiff, since fair use is an affirmative defense.

The bottom line is that except in a small minority of cases, if you're a fanfiction author and the copyright holder wants you to stop, even if you can somehow easily afford a legal stand on principle, you will lose.

Nor do I buy the claim that it's immoral.

I agree. Legality is not morality. It's not even always common sense.

[Boyish-Tigerlilly]

this issue would only strike me as moral if it actually can be reasonably, and factually shown to be the detriment of said party. If it does nothing, how can it be even considered?

[neoolong]

I seem to remember something about a fanfic author suing the original author for using the idea, and the fanfic author losing.

That's exactly the point. If the fanfic author's work was genuinely fair use, the lawsuit would have succeeded, because then the fanfiction would have been protected in its own right.

How do you know it didn't lose because the defendant showed that they didn't steal the idea from the fanfic?

[Kuroneko]

How do you know it didn't lose because the defendant showed that they didn't steal the idea from the fanfic?

I don't. I simply assumed so because that's the only way the example could be relevant to Mr. Sorresso's view that the fanfic author is not protected by copyright law. If that is the really case, it clearly contradicts his previous position that fanfiction is fair use, since fair use works are protected by copyright.

[Jim Raynor]

This Lee Goldberg guy is a fucking hack. What I'm about to rant about doesn't particularly have anything to do with this so-called moral dilemma, but I think you guys should know where this is all coming from. I haven't ever seen Diagnosis Murder, but he has already killed Martial Law, a show I watched regularly.

For those of you who never heard of it, Martial Law was a martial arts cop show that aired on CBS from 1998-2000. Hong Kong action star Sammo Hung and Kelly Hu (from The Scorpion King and X2) were the two main stars. Arsenio Hall also came in halfway through the first season. It was considered a bit of a hit when it first premiered (this was amid Jackie Chan's Rush Hour success), and Entertainment Weekly even put Sammo on its list of breakout stars. There was also some talk of a movie during an interview in Parade (not that it was serious, but you know the show is doing well when there's talk like this).

The show wasn't brilliant, high quality television, but it was fun. The three aforementioned stars all played detectives in the LAPD. There were two other regulars (another detective and the captain in charge of all of them) as well as numerous recurring characters. Most of the stories featured the team fighting crime, while Sammo tried to adjust to American culture (he was a Shanghai cop who initially came to the USA to save Kelly Hu, who played his pupil). The first season ended with numerous cliffhangers. The captain was shot and seriously wounded, Kelly was tied up by criminals and being carried away in a helicopter, and Sammo and his archenemy were last seen falling out of that helicopter.

Enter new producers Lee Goldberg and William Rabkin. Seriously, these two morons were as bad as B&B. Maybe even worse. They didn't have decades-long continuity to shit with, but the amount of disregard they had for continuity was astounding. They were LITERALLY quoted saying that they were going to ignore what happened in the first season, in favor of what THEY thought the show should be like. G&R thought the first season was too serious (it was lighthearted and a little campy) and promised to make the show more "fun" (they actually made the show dark and grim).

The new season came, in the jaws of fans dropped. EVERY regular and recurring character besides the Sammo, Kelly, and Arsenio was gone. G&R didn't even bother to wrap up the cliffhangers from last season. Instead, the second season premiere showed the three main characters perfectly fine, working on a completely different case. Somewhere in that episode, there was a throwaway line about how Sammo survived falling out of a helicopter before. Not only was most of the old cast gone, but the scope and feel of the show was completely altered. What was once a lighthearted action-comedy about a group of LAPD detectives fighting street crime now featured an all-powerful, shadowy terrorist group out for WORLD DOMINATION. The leader of this shadowy group (referred to as "The One") had it in for Sammo, for reasons unknown. They kept building on that for the entire second season. Oh yeah, along the way it was revealed (more like pulled out of G&R's asses) that Sammo had a long-lost son, and that tracking HIM down was the reason Sammo originally came to the USA (contradicting season 1's reason).

Viewers (and even some of the actors) complained about the writing. The poor writing and changes turned viewers away, and the ratings slipped. What was once an up-and-coming hit show was now sagging in the ratings, and it would not be renewed for a third season. The series finale came, and it featured an eerily prophetic story in which the terrorists plot to remote-control passenger planes into New York City. The One's reason for hating Sammo was also revealed. You see, the one's younger brother was a petty thief who Sammo arrested years ago in China. His brother was placed in a prison, and later died in an accident while doing hard labor. WEAK.

At the time, I was not very involved with internet fandoms. However, while looking up the show on jumptheshark.com, I learned that G&R used to post on the alt.asian-movies newsgroup. When fans criticized what they did to the show, things erupted into a flame war. They were completely unrepentent about their decisions.

More recently, Lee Goldberg penned a poorly-written episode of another show I watch regularly, the detective comedy Monk. It's a well-written show about an obsessive-compulsive detective who is tortured by his condition, but is also able to notice a lot of tiny clues because of it. In most episodes, the viewer will be surprised by who did the crime, or how he pulled it off (in the episodes in which the killer is known from the start). However, the answer isn't usually pulled out of thin air, because clues are given throughout the episode. Goldberg wouldn't have any of that. His episode, "Mr. Monk Goes to Mexico," traded clues for sex jokes. The killer was revealed at the last minute, and the lamest clue was used to justify this answer. It was like Goldberg didn't even watch the show before writing.

Because of his history of arrogance and poor treatment of fans, I'm not the least bit shocked that he's trying to put down fanfiction.

[Mark S]

Sounds like one more candidate for douchebag of the year.