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our roads may be golden, or broken, or lost ([personal profile] alexseanchai) wrote2012-02-25 08:13
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Fanfiction Law on LexisNexis, Part 1.5: Fair Use, Parody, and 17 USC § 107

The Stanford Law fair use overview, which I shall summarize here.

Two main types of fair use. Commentary/critique and parody. It'd be kind of hard for me to, for example, have a fit over Toby Keith's "American Ride" and have y'all understand me without me including the lyrics that bug me.

Tidal wave comin cross the Mexican border
[...]
Just don’t get busted singin Christmas carols
[...]
Both ends of the ozone burnin
Funny how the world keeps turnin
[...]
Plasma getting bigger, Jesus getting smaller
Spill a cup of coffee, make a million dollars


My readership is such that I can quote these lines and y'all will know immediately that I'm upset over Keith's portraying immigration and secularism as threats and climate change as not a threat, and clearly Keith has never even heard just how extensive million-dollar-coffee woman's injuries were. (Motherfucking ow crossing legs forever, is how extensive. Google if you really want details.) And because I'm commenting and/or criticizing, this is fair use.

"A parody is a work that ridicules another, usually well-known work, by imitating it in a comic way." Harry Potter parodies get their own Wiki page. I don't find parody amusing as a rule, but if the stated goal of a work is to use a common cultural referent to amuse the consumer, it's fair use. Presumably this is true even if the work fails to be amusing.

Now the bad news. The only 100% guaranteed inarguable way to figure out whether a particular work is fair use under US law of another particular work: The US Supreme Court says so. I'd say 'a judge says so', but appeals.

I'm going to divert from straight-up summarizing and commenting on the Stanford Law articles now to post a segment of an unpublished essay I wrote that covers the same ground in a manner I prefer.

17 USC § 107 lists four factors that must be accounted for in any consideration of whether a work (let's title it T) that makes use of another work (C) is fair use of that second work. For what purpose does T exist—commercial, nonprofit, educational, or what? What sort of work is C? How much of C does T use? What effect does T have on the market for of value of C?

Two of those four factors hinge on 'profit'.

Let's now say T is Hope Springs Eternal: A Subterranean Romance by Quantum Witch, and C is Disney's Hercules. How does Hope Springs Eternal rank as fair use?

First factor. For what purpose does Hope Springs Eternal exist? It's published on fanfiction.net and the Archive Of Our Own, both sites that provide no way of conveying money from readers to writers, indicating that Quantum Witch has no intention of making money off HSE: the use is noncommercial. It's also possible to argue that the use is educational: Quantum Witch takes the plotline from Homer's "Hymn to Demeter", about which I knew nothing before reading HSE. Even if HSE is not educational in nature, it is not for profit, which supports the idea that it is fair use.

Second factor. What sort of work is Disney's Hercules? Fiction, of course. (Even if one subscribes to the belief that the Greek gods are real and the myths of Herakles are factual, Disney's take is wildly anachronistic in many ways.) "It is well settled that creative and fictional works are generally more deserving of protection than factual works." Warner Bros and J.K. Rowling v RDR Books, 575 F. Supp. 2d 513 (S.D.N.Y. 2008). This weighs against HSE being fair use.

Third factor. How much of the copyrighted work does the work under scrutiny use?

...Excellent question.

Many of the characters are the same, certainly. HSE is billed as a sequel to the movie, and references to events of the movie and anachronisms present in the movie are therefore frequent. But important to recall is that Hercules is a ninety-three-minute movie, and the screenplay was likely the same number of pages. Screenplays average a hundred twenty-five words per page, for a total of under twelve thousand words in the entire movie.

Hope Springs Eternal is a hundred twenty thousand words long.

This argues strongly in favor of HSE being fair use.

And finally, fourth factor. Does the work under consideration harm the market value of the copyrighted work?

There are only two ways a story published on fanfiction.net or AO3 gets read. The first is, someone who has consumed the original work goes looking for transformative works based on said original work. This does not harm the market for the original work, because the person in question has already paid money for the privilege of consuming the work, or borrowed the DVD from a friend or what have you—in any event, the owner of the relevant intellectual property has already made money. The second way a fanfic gets read is, someone who has not consumed the original work happens across it, usually via recommendation. (For the record, I wholeheartedly recommend Hope Springs Eternal.) Not only does this not harm the market for the original work, it expands the market, because fanworks are not meant to be consumed outside the context of the original work.

Either way, this argues in favor of HSE being fair use.

Now, back to Stanford Law. Or rather, off to read the cases Stanford Law cites and brief them for y'all. And to get "American Ride" out of my head, because oy.

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