(no subject)

From today's New York Times email:

On Feb. 25, 1870, Hiram R. Revels, R-Miss., became the first black member of the United States Senate as he was sworn in to serve out the unexpired term of Jefferson Davis.

I feel that's worth reminding people of.

Fanfiction Law on LexisNexis, Part 1: LexisNexis Search for 'fanfiction'

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Search Terms:(LN-HEADNOTES(fanfiction) OR CORE-TERMS(fanfiction))
Source:US Supreme Court & Courts of Appeals Cases, Com...

I tried "fan fiction", too. Nada. If anyone thinks any of the abbreviations of the term would seriously be used in a legal case, I can try them, but they'll all come up empty, I guarantee it.

This means that US law as it applies specifically to fanfiction is nonexistent. No one in the US has sued over fanfiction. Ever. Not a single author. Not even the fan who wanted a byline on a Marion Zimmer Bradley novel. Or any suits that have happened have settled out of court where they cannot shape the common law.

I am not a lawyer, but this tells me that, whatever the de jure status of fanfiction is, it is de facto legal.

'Transformative work' got sixteen hits, and I intend to read them all and case-brief all the ones sound relevant, as well as hitting up everything Stanford Law says about fair use. (Why do my own research when they've done so much of it for me?) Keep an eye on my 'copyright law' tag today and tomorrow.

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.

Fanfiction Law on LexisNexis, Part 2: Salinger v. Colting

Citation: Salinger v Colting, 641 F. Supp. 2d 250 (S.D.N.Y. 2009)

Parties: J.D. Salinger, author of Catcher in the Rye, plaintiff. Fredrik Colting writing as John David California, author of 60 Years Later: Coming Through the Rye, and publishers, defendants.

Facts: Salinger wrote a book. Colting wrote a sequel to Salinger's book.

Prior Proceedings: This was the first time the case appeared in court.

Issue: Under federal law, does a sequel to a previous work constitute fair use of that previous work?

Holding: No. Not this sequel to this work, anyway.

Reasoning: The purpose of 60 Years Later is commercial (against fair use) and nontransformative (against fair use) and nonparodic (against fair use): Colting's character, referred to as Mr. C, did not add or change enough (or, apparently, anything) from Salinger's character Holden Caulfield, and Colting commented at some length on Salinger but did not comment on Catcher. The original work is fiction (against fair use). 60 Years Later took extensive material from Catcher (against fair use). 60 Years Later's publication, while unlikely to harm the market for Catcher (for fair use), would harm the market for authorized sequels to Catcher (against fair use), harming Salinger despite Salinger's apparent disinterest in producing or authorizing sequels to Catcher.

Disposition: No publication of 60 Years Later allowed.

And then the appeal.

Citation: Salinger v. Colting, 607 F.3d 68 (2d Cir. 2010)

Parties: Colleen M. Salinger and Matthew R. Salinger, J.D. Salinger's children and Trustees of the J.D. Salinger Literary Trust, plaintiffs-appellees (Salinger himself died before the appeal). Fredrik Colting and publishers, defendants-appellants.

Facts and Prior Proceedings: see above.

Issue: Under eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388, 390, 126 S. Ct. 1837, 164 L. Ed. 2d 641 (2006), is the Second Circuit's historical test for whether to issue an injunction against a copyright violation valid?

Holding: The District Court screwed up in that eBay requires a four-factor test for a injunction against doing X and the District Court considered only one factor. But the copyright issues were properly decided by the District Court. Vacated and remanded for the District Court to consider what to do about the established copyright violation.

Comments: Colting made two mistakes. One, which distinguishes this case from any future case involving fanworks, is that Colting wants to make money off his work. And two, going by what the judges said about the content of 60 Years Later, the work is basically a retread of canon, just with Colting's Mr. C sixty years older and the setting sixty years later and the original author made into a character. Colting didn't add or change a damn thing except bits of plot.

I am, rather to my surprise, on the District Court's side in this. There's a fairly clear line between 'fanwork' and 'plagiarism', and Colting's on the wrong side.

Fanfiction Law on LexisNexis, Part 3: Warner Bros. Entertainment Inc. v. RDR Books

Citation: Warner Bros. Entertainment Inc. v. RDR Books, 575 F. Supp. 2d 513 (S.D. N.Y. 2008)

Parties: Warner Brothers and J. K. Rowling, who own the copyright to the Harry Potter series, plaintiffs. RDR Books and ten unnamed individuals (one of whom is surely Steve Vander Ark), who tried to publish a lexicon of the Harry Potter books, defendants.

Facts: Seven books, two companion books, issues of a fictional newspaper, assorted movies and video games, and Rowling's plans to publish a Harry Potter encyclopedia—this is one big franchise that Rowling and Warner own. Vander Ark runs a website, the Harry Potter Lexicon, that keeps track of all the details, organized by type of detail and alphabetically. The Lexicon site uses ads to offset the cost of running the site, not to make any profit. Rowling and others involved in the production of the books and movies have been approving. RDR Books thought there'd be money in producing the first Harry Potter reference guide to include material from the seventh HP book, and further, thought there would be no lawsuit. Much of the Lexicon's material is Rowling's words, often without citations or even quotation marks.

Prior Proceedings: None.

Issue: Under the US Copyright Act, does reordering copyrighted material constitute transformative and therefore fair use?

Holding: No. Not when so much of the reordered material is word for word out of the original, maintaining the same narrative.

Reasoning: The Lexicon book adds some work but that's all copied from other sources such as Bulfinch's Mythology, it doesn't transform, it doesn't comment or critique or parodize (all against fair use), it's commercial (against fair use), it's copying fiction (against fair use), it copies so much of Rowling's series and so much more of her companion books using so many of Rowling's words (way, way against fair use), and it would hurt the market for the Harry Potter encyclopedia that Rowling meant to produce (not against fair use, surprisingly—reference works, the opinion says, are not derivative works) and, because so much of the companion books were copied on the Lexicon book, would hurt the market for said companion books (definitely against fair use). So not fair use, so copyright infringement. This does not prove that irreparable harm would be done to the plaintiffs without an injunction against the defendants, but Rowling says the publication of the Lexicon book would hurt her ability to write her own Harry Potter encyclopedia, which does constitute harm to her and to the charities supported by her profits from same and to the reading public, and see above about the market for the copied-nearly-in-full companion books, which again constitutes harm. The defendants paying the plaintiffs money would not suffice as a remedy, because there's no indication that the defendants would stop infringing the plaintiffs' copyright. The defendants failed to show that they'd be harmed in any manner other than simply failing to publish the infringing book, not something the law protects. And the public interest is both benefited and harmed by an injunction against this book's publication. Three to zero.

Disposition: A permanent injunction against the book's publication and $6750 to plaintiffs.

Comments: Again, it all comes down to money (the defendants wanted some) and how much copying the defendants did (way too much). They didn't add to, they didn't transform, they didn't comment on or critique the original works. Fanworks don't ask for money and do add to, transform, comment on, and/or critique the original works. I'm more concerned with how this case affects the Super-wiki than with how it affects my Supernatural fanworks. Still not very concerned, because the Super-wiki runs on donations which it uses only to pay for the domain name and hosting fees.