Postby JasonPratt » Tue Jun 19, 2007 6:55 am
Popping in here late as a publisher!--to drop in a maximal post! Woot! (I'm probably dittoing several things in the discussion already, but just consider it independent multiple-attestation if so. {historical crit ref!}{g})
Yes, fanfic is technically illegal for public use; if you put it up somewhere publicly accessible, you have technically _published_ it yourself, even if you don't try to commercialize on it. Private use is another thing (answering UCPseudo's recent question.) Passworded sites may not count as public dissemination, though if some kind of commercialization is being run on it then once again that's another thing.
As noted, most rights-holders are _unofficially_ very tolerant of fanfic; the laws are there to protect the rights of investors and creators to compensation from use, not to impinge on freedom of speech, which fanfic would otherwise fall under protection of. On the other hand, libel is not protected by anything anywhere; and if a creator is being misrepresented by someone else, then that almost certainly would count as libel.
To give an example of this (which was probably mentioned already--late to the discussion, remember {g}), Tolkien would most likely be horribly annoyed at all the fanfic promoting freaky sexual unions between various characters of LotR. Even his friend C.S. Lewis, who was quite in favor of even allowing other writers to make money off his creations (considering the restriction thereof to be the sin of "intellectual simony"), would probably agree that people who disrespect Tolkien enough to write something at such total variance of what he believed, should be prosecuted under libel.
Asking permission, as noted, is always the safest way to go. No business entity is going to strictly authorize it, for legal reasons, but every business entity is a derivative abstraction from real people, and real people usually think fanfic is a great idea. {g}
So, safety rules:
1.) check if the publisher and/or author already has set up a place for fanfic! (Then you know it's safe, within the rules set up there.)
2.) if it's totally private usage, you're legally quite safe.
3.) if it's passworded usage, you may (I stress _may_) be technically safe (so long as you're not capitalizing on the access.)
4.) rigorously avoid trying to capitalize on the work. It isn't always obvious what counts as capitalizing, though, so I stress _rigorously_. {g}
5.) some types of satire, by the way, are protected even for capitalization purposes. There is a strong legal precedent for this, connected to the principle of freedom for public critique.
6.) try to understand what the author would and would not have approved of (which is likely to be same as his literary heirs, if any), in order to avoid charges of libel/misrep.
7.) be sure to credit the original author (and any subsequent authors if they contributed significantly--fanfic about Star Wars' Admiral Thrawn or Mara Jade, should credit Timothy Zahn as well as Lucas, for instance.) The main reason publishers and authors usually like fanfic, legal issues aside, is because publishers and authors _love_ free marketing. {g} (But not free marketing that makes them out to be perverts or terrorists or whatever. That's called libel. {wry g})
8.) ask permission from the publisher, if (which is usual) they and the author aren't the same person. The publisher is who is risking the capital for investment and has massive legal protection as such. They probably won't give you legal permission because other people are involved, but they may give you tacit permission.
As a working example then {g}: since I am also my own publishing company, and hold 100% rights to my work, as publisher I give permission for non-cap fanfic (and art {g!}) of my work to be publicly written, although I reserve right to prosecute for libel. I would even give permission for capitalized fanfic to be done, so long as 10% of the immediate proceeds are sent back to me; but that would violate the sole distribution clause in the contract with my primary distributor. So you'd have to send the 10% there first, so they could take their 14% cut of it. {wry g} (Actually, I need to talk with them about how far their sole distribution clause carries... {scribbling mental note})
I would prefer if people told me where the fanfic is happening, so I can check in on it every once in a while. Which reminds me of another potentially thorny legal problem: one reason publishers (and authors) might shut down fanfic, even if they personally otherwise would approve of it, and even if no other factors (like libel) are a problem, is because of risk of reverse intellectual property suit.
Let's say someone, after reading _Cry of Justice_ (which should be available in print no later than Labor Day, and probably more like mid-August, btw), decides they want to write fanfic speculating the answer to a plot mystery: what does Portunista mean by "the sharp cliff" incident? I'm clearly going to be answering this question eventually, but the fanfic writer makes her own guess and writes a story relating what happens during it.
But what happens, then, if she gets it largely correct?--which is quite possible, if she's paying attention to little clues scattered in Book 1. She's already published the material herself, and has dutifully obeyed my requests in regard to fanfic. What happens then if I write Book 2 and do what I was already planning to do in regard to the sharp cliff incident? Suddenly, I'm legally trespassing on _her_ previously _published_ creative work, and worse I'm making a capital return on it while she has gotten nothing! A nasty legal foofaraw might commence, now or later.
Slightly different example of the same principle: the fanfic'er decides to pick a piece of plot mystery that she thinks I'm not really ever going to answer--what Portunista did to be potentially expelled from the Cadre before the Cadrewar erupted, for instance. But I _was_ eventually going to answer that. Opps.
Slightly different case again: the fanfic'er, being (as many are) an incurable romantic {g}, decides to write a short story about Gavoda and Tanforan's first meetings and early courtship, what they did during the Culling, what happened to her city of Wye, how they got married, etc. I hadn't been planning yet to tell that story, but what if I decided later I wanted to? Well, I would have to make it different than the fanfic'er had done, wouldn't I? But what if she did something I not only think is cool, but (on contemplation) fits in better with my story than anything else I can think of? It's _my_ material--should I have to settle for something I think is substandard?
Here things get squirrely again. Legally, I would probably be obliged to share author credit and right of compensation with the fanfic'er. Okay, not really that much of a personal problem for me. But this opens the floodgates to gold miners: people start writing stories on spec, hoping that they'll strike something I might want to use someday, and so have a legal leverage. I'm suddenly held hostage by people I don't know who have trumped me in my own material! Worse, how is this to be distinguished from a case where I _was_ planning to do that story and the fic'er got there first with essentially the correct answer??
Ugh.
So there would have to be a proviso, something to this effect: I as author and publisher reserve all rights to my work, and fanfiction authors are only allowed to work without prosecution under the agreement that I still retain all compensatory rights to my material, including original rights to anything they themselves develop using characters and situations of my own creation.
Which in effect means that if you write a story about Seifas growing up as a boy in the Hunting Cry, and how he came to have his aasagai, and I decide I want to incorporate that material, I don't necessarily have to fiddle around with getting _your_ permission to use that material. Is that fair to you? No, probably not. Am I legally safe by doing this? Maybe not, but probably so.
That kind of horrid complexity and doubt and second-guessing, is what publishers (and authors) want to avoid, which is why fanfic _has to stay_ technically illegal. Which means I hereby rescind any apparent permission I may have given above to do fanfic, as being FOR INSTRUCTION PURPOSES ONLY! (original emphasis)
I can't even give tacit permission publicly to do it. It isn't because I'm a heartless creep; as a personal matter I would very much appreciate (non-libelous) fan fic, because I appreciate fan interest, and (more pragmatically) if I don't entertain you or otherwise provide satisfaction to you then you don't pay me and I don't recoup my prepaid expenses much less make enough money to continue operations as a business, much much less make any actual profit from the business myself.
But that's the key principle that has to be kept in mind. Publishing is a business, and I have a responsibility (and even a pragmatic obligation) to look at things from that standpoint or I will cease to exist as such. And then there will never be any official answer to questions like "Why is the Preface Author so upset?" or "Whassup with Jian?" {g}
Which in turn suggests a topical overlap with the popularity of do-it-your-self religioning. But that's another discussion. {g}
Jason Pratt
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in the owner's spare time {g!}
"For all shall be salted with fire. Salt is good, but if the salt becomes unsalty, with what will you season it? Have salt in yourselves, and be at peace with one another." -- Mark 9:49-50 (my candidate for most important overlooked verse in Scripture. {g})
"We must
be strong and brave--
our home
we've got to save!
We must make
the fighting cease,
so Mother Earth
will be at peace!
Through all the fire and the smoke,
we will never give up hope:
if we can win,
the Earth will survive--
we'll keep peace alive!" -- from the English lyrics to the closing theme of _Space Battleship Yamato_
"It _was_ harsh. Mirei didn't have anything that would soften it either." -- the surprisingly astute (I might even call it inspired {s!}) theological conclusion to Marie Brennan's _Doppleganger_ (Warner-Aspect, April 2006)
Or Wikipedia ^^;
:)
