Fanfiction Law on LexisNexis, Part 1.5: Fair Use, Parody, and 17 USC § 107

[alexseanchai]

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going to divert from straight-up summarizing and commenting on the Stanford Law articles now to post a segment of an unpublished essay I wrote that covers the same ground in a manner I prefer.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

Comments

[myaibou]

Something that occurred to me the other day when I was making a comparison between fanfiction and a cover band doing someone else's songs is, why is writing treated differently than other art forms, like music, for example? If I want to form a band to play cover tunes, all I have to do is buy the music and pay whatever licensing fees are associated with that, and then I have the legal right to play these songs. I can even make money doing it.

But licensing for fiction is a whole different animal, with the creator controlling to whom licenses get granted. Why can't anyone pay a licensing fee and then be able to use the material, even for profit, they way licensing for music works?

I know music licensing is hugely sticky and most fanfic writers aren't looking to make money anyway, but my point is that derivative fiction is treated in a way different from almost any other derivative art form. WHY?

[alexseanchai]

I don't know. I wish I did.

Most fanfic writers? Try all fanfic writers, with rare and quickly-shouted-down exceptions. (Someone who happens to write fanfic making money off original work, such as Naomi Novik, is a subtly different story—she's still not trying to make money off her fanfics.) Tie-in writers don't think of themselves as fanficcers. I will bet cash money that Colting—see my latest post—does not think of himself as a fanficcer.

I'm reminded of the A Midsummer Night's Dream production I saw in which the scenes from Shakespeare were intercut by the actors singing from Grease.

[myaibou]

You know, if I could just pay a licensing fee that would give me the legal right to publish my fanfic, I'd consider trying. Then again, maybe not. I wouldn't want to get roped into HAVING to write, which publishing can do. But if it were an option, if licenses weren't just granted to specific writers commissioned to write a tie-in and anybody could pay the fees, like cover bands do, I'd think about it. Look at Wicked. What is that if not a published Wizard of Oz fanfic?

[alexseanchai]

*nodnod*

[sparrowshellcat]

I am finding your research utterly fascinating. When I was in University, I was a research assistant for a professor who was writing about fanfiction, and as a result, I got to audit the course she taught on it. What's different, of course, is that I was taking it from an English major's perspective, so we focused on the how, why, and what of fanfiction, rather than on the legality of it. (The author is god versus the author is dead theories, for instance.) I am finding this delve into the legality of it fascinating.

I'm also finding myself wishing more and more that I'd done my Masters in English like I planned - I was going to focus on fanfiction. XD

[alexseanchai]

That sounds like fun.

[melannen]

This thing you are doing is great! I am following with great interest.

(Also, I didn't know the Toby Keith song, and it took me a little bit to realize that the lyric "Don't get busted singin' Christmas carols" referred to the Christmas part and not the fact that some people have made an argument that it's a copyright violation. ^_^

[alexseanchai]

People have seriously argued that other people singing Christmas carols is a copyright violation? Wow. Point one, if people know it at all, either it's public domain or there's already been a recording authorized, and in either case there's no way to stop people from making new recordings. Point two, there's a certain number of people have to be involved before it can be called a public performance. Dunno how many that is, but it's more than the usual audience for people singing Christmas carols.

[melannen]

Oh yes. Several times I've gotten into an argument with an anti-fanfic person who's taking the "it's my creation and it's perfect and how dare you sully it by putting your dirty derivative works all over it!" moral/ethical stance, and I'll ask them if they have the same moral/ethical issue with people singing Beatles songs as they walk down the street... and every single time they've said yes, that is also unethical and a violation of creator's rights.

Also there was that that case in Scotland where someone got threatened with a lawsuit for unauthorized performance for singing while she stocked shelves.

[alexseanchai]

I'm mostly concerned with US law. Wherein cover songs are protected by law as previously mentioned, and how in hell is one to create a cover recording without singing the bloody song?

A license is needed to play a radio within earshot of customers? Holy shit.

[melannen]

In the US, I think, with cover songs, aren't you still technically required to pay a license? There are some corporate agreements that means most songs are OK for live performance without further fees, I believe, but no legal right, and recording-wise they can't forbid you from recording but you still have to pay. So legally it's not that simple.

And of course it doesn't shut up the hard-line creator's rights people regardless.

[alexseanchai]

Um. Good question.

Wiki says:

Since the Copyright Act of 1909, in the United States there has been a right to record a version of someone else's tune, whether of music alone or of music and lyrics.[7] A license can be specifically negotiated between representatives of the interpreting artist and the copyright holder, or recording of published tunes can fall under a mechanical license whereby the recording artist pays a standard royalty to the original author/copyright holder through an organization such as the Harry Fox Agency, and is safe under copyright law even if they do not have any permission from the original author. Other agents can also help facilitate clearance including Limelight, the online mechanical licensing utility powered by RightsFlow. The mechanical license was introduced by Congress in order to head off an attempt by the Aeolian Company to monopolize the piano roll market.[8]

While a composer cannot deny anyone a mechanical license for a new recorded version, he or she has the right to decide who will release the first recording of a song; Bob Dylan took advantage of this right when he refused his own record company the right to release a live recording of "Mr. Tambourine Man".[7]

So, yeah, need to fork over money to make a cover song, but assuming it would be a cover instead of the original, once the license fee's in the composer's hands, the cover artist can do exactly as ze pleases and the composer can't say anything about it, or deny the license to anyone.

Because I'm curious:

9.10 Cents per copy for songs 5 minutes or less
or
1.75 Cents per minute or fraction thereof, per copy for songs over 5 minutes.

From the Harry Fox website; apparently they're the place to go in the US for such licenses. Assuming a thousand copies or downloads and a less-than-five-minute song, that'd be $91. But this assumes the cover's being done for commercial purposes.

To bring this back to fandom, I'd cheerfully pay $10 to have the uncontestable legal right to produce noncommercial derivative works based off Supernatural, or $0.10 to have the uncontestable legal right to produce a single such work (though I might rethink the idea of writing many short things). I'd somewhat less cheerfully pay $100 to have said right, or $1 per work. More'n that and fandom's doomed, or back underground, unless somebody actually sues over noncommercial fanworks and the opinion makes it clear that noncommercial fanworks are fair use unless proven otherwise.

[melannen]

Yeah, and if you go to the ASCAP page on Wikipedia it talks about a few of the more out-there times they tried to sue people for unauthorized live performance. (Apparently they once tried to get scout camps to pay in order to have campfire singalongs...)

I personally think that any system which acknowledges the right to cover songs, as the 1909 copyright act does, should also acknowledge the right to produce fanfic, because I don't really see an ethical difference there - if anything we're being *more* transformative, and should have more rights. A set fee like you described might even somewhat function, but a per-copy license fee would get unmanageable for noncommercial works fast - I'd really prefer the "fanfic is transformative and does not touch copyright" solution myself (of course...)

[alexseanchai]

Yeah, right there with you.

IMRO

[(Anonymous)]

Quote: A license is needed to play a radio within earshot of customers?

Any shop in Ireland, and even many buses (seriously!) have a sticker in the window saying something about music being licensed by IMRO (Irish Music Rights Organisation). Some of these (especially cafes, may be playing from their own CD player. Most are playing a radio.

When I was in Transition Year in school, I did my work experience in the local radio station. One thing they had to do was send a list off to IMRO of all the music snippets they'd used in broadcast advertisements over the past year. IMRO then passed the money on to the various copyright holders. That's how it works.

TRiG.

Re: IMRO

[timothy.green.name]

And last week, there was a ruling that hotels have to pay if they put radios in their rooms, but dentists don't have to pay for playing a radio in their waiting rooms.

No, I don't understand it either.

TRiG.

[myaibou]

Yeah, that's copyright gone mad. I recognize a creator deserves to profit from his/her creation and get some amount of control over it, but that's just ridiculous. If nobody could sing their favorite song, they wouldn't even bother listening and the whole damn industry would die.

So, in the same vein, if I'm watching Star Wars with my fan friends for the umteen millionth time and we're quoting the dialogue along with it, I suppose we should be arrested for plagiarism. ::rolls eyes::