Precision or hairsplitting? You decide

[scarfman]

Some time ago someone on my flist (I think I recall who, but I'm not sure) brought to my attention The Organization for Transformative Works, "a nonprofit organization run by and for fans to provide access to and preserve the history of fanworks and fan cultures". Amongst their projects is An Archive Of Our Own, abbreviated AO3, an archive for fanfiction and fan art of which many on my flist as well as my mother have taken advantage. I've looked over their website several times. It may be that a reader of this journal familiar with what I've written about fanfiction is surprised that I shouldn't join in over there and talk it up over here.

Well, first of all, I've never uploaded my works to any archive site. I prefer to host them myself (see the links in my LJ header) and retain ultimate control over presentation (the short-lived hosting of The Hero of Three Faces at WebcomicsNation being the exception that proves the rule). But mostly, I've always been concerned that they know what they're doing, because of their title.

(Note: I am not a lawyer and am open to correction for any element of the following.)

See, a "transformative" work under intellectual property law is one that is based on another work but is so different from the sourcework that it's legally a new work, by legal definitions. But some works are only "derivative": they're derived from other works but aren't sufficiently transformed to constitute new works; and, if that source is copyrighted and the derivative work isn't licensed, the copyright may have been violated depending on the nature of the derivative work. Some fanfiction - all of mine (prose and cartoons), I'm pretty sure, and most of what I enjoy - is merely derivative, not transformative.

Now, I believe fanfiction is and of a right ought to be fair use, like parody is, as long as no profit is made and no market of the copyright owner is infinged. Also, I've recently read that legally copyright infringement is something that's established on a case-by-case basis, and I believe that means any blanket statement like, "Fanfiction is infringement on copyright," is legally meaningless.

I see nothing wrong with something like AO3 or Fanfiction.net or your fandom's favorite webhosting service, any more than I do with archiving my fanfiction on my own site, or anyone else on their own. But I believe that the OTW runners are fooling themselves or others with the implication that fanfiction is by definition transformative and, therefore, unambiguously legal. I've searched their website for the word "derivative" to see whether they even see the legal distinction, and come up dry. I fear they're ingenuously or purposefully ignoring the legal concept of derivative work and therefore the real possibility that there is fanfiction that may be found to be copyright infringement if ever tried in court.

I wish them well, and I hope that they become instrumental over time in proving the worth of fanfiction generally (without incurring debilitating legal fees in the process) as they obviously mean to be doing. But I'm unwilling to pledge my life, my fortune and my sacred honor while they look to me to have their heads in the sand.

Comments

[pedanther]

I've searched their website for the word "derivative" to see whether they even see the legal distinction, and come up dry.

When you say "dry", do you mean that you didn't find the word at all, or just that when you did it still didn't address your concern?

[scarfman]

I remember it didn't address my concern but not whether it was there at all.

[omorka.livejournal.com]

Some of the people involved are old Potterfandom elitists with weird legal ideas anyway. I try and stay away from the political end. But I really like the way the AO3 archive works.

[kaffy_r]

I got into fanfiction via an archive (Teaspoon and an Open Mind), but the maintainers over there don't say one way or another where they stand on the issue of fanfic rights. I archive my stories there, but I've also started archiving over on AO3. I think it's partly because I like the larger idea of what these folks are trying to do, including fan history, and research. I have no idea whether their contentions will ultimately hold legal water, but I'll watch whatever comes down the pike with interest.

[elf]

Found this through an icerocket search for fanfic archive discussions (a large LotR archive was recently purchased by a for-profit venture).

IANAL, and I don't represent the OTW, but I've been aware of them since before they got started. They have a legal team of IP specialists, and they are indeed very aware of the difference between "transformative" and "derivative." They're aware that it's possible for fanfic to be infringing (for example, if someone took the first Harry Potter book & just ran a search-and-replace on Harry's name to turn him Gary Swatter); they believe that the vast majority of fanfic--everything most fanfic authors would recognize as fanfic--is transformative, but part of that understanding may be the utter *hash* that is copyright law status, where courts haven't bothered to establish any lines about "transformative vs derivative" once a use has been declared fair, which is often the case when there's no profit involved.

I believe they expect fanfic to eventually be challenged in court, and that's part of why they have a legal team--not just to defend their own archive, but to be available as a resource for other fans. (They might not be able to provide legal counsel to any-and-all, but could give advice on "how to respond to a C&D" or "how to respond to a DMCA takedown letter.")

They welcome questions and are happy to discuss fine points of legalisms with anyone who's interested. And they understand that not everyone will want to host their fic at AO3; they want to be a resource for people who are tired of archives vanishing overnight because of a fight between the moderators or a single takedown notice.

[scarfman]

Thanks for replying.

They welcome questions and are happy to discuss fine points of legalisms with anyone who's interested.

That's great to know. Not being a lawyer myself, though, I don't feel I'm competent to ask the questions I hope they can answer. As I said above, I wish them well, and you give me confidence that they know what they're doing after all.

[scarfman]

They're aware that it's possible for fanfic to be infringing (for example, if someone took the first Harry Potter book & just ran a search-and-replace on Harry's name to turn him Gary Swatter)

Actually that's plagiarism, which also has its own legal definition distinct from derivative work or transformative work. Derivative work may be licensed or fair use and therefore not infringement, but plagiarism is infringement and outright theft under any circumstances. The equation of fanfiction with plagiarism is a peeve of mine.

[elf]

I'm not sure if it's plagiarism if it's credited to Rowling; a disclaimer that indicates "this is a minor adaption of the first Harry Potter book" wouldn't be taking credit for Rowling's writing. Or saying, "this is the Harry Potter book with the names all changed to people I know," to be clear that there's no other derivation/transformation going on.

AFAIK, plagiarism isn't illegal unless it's done with intent to defraud. (It's legal put a joke on your blog and not credit the originator, and even let people think you came up with it.) It's sharply forbidden in academic settings, and most writing-for-pay settings would want to know about it, but I'm not sure there's a specific law against plagiarism except as relates to either copyright infringement or fraud. (Not arguing; actually curious. I've tried to track down the legalities and come up empty-handed. Plenty of university have policies of "if we catch you doing this, we throw you out," but I haven't found laws about plagiarism.)

There is plagiarism in fanfic--both of the "grab passages from an uncredited work & put different character names in it" variety, and "grab fanfic from one site, put new author's name on it & upload to different site" varieties--but it's rare. And neither of those are what the OTW is trying to protect.

[scarfman]

Okay, you didn't say that the party in your example doing the search-and-replace was doing so in order to claim ownership of the new version of the work. I assumed so because over the years I've read of more than one case of parties globally replacing a fanfiction story's franchise names with names from another franchise, and then presenting the result as their own work on an online fanfiction forum. (It was during a Usenet discussion of such a case that I first encountered someone characterizing all fanfiction as plagiarism.) That's what I thought you were talking about.

I assumed so, also, because I can't conceive of another reason to do it.

[elf]

I'm working on a version of Doctorow's Little Brother where I swap the genders of everyone in the book--new names, new pronouns, no other changes except those required for that to make sense. (Quite a few moustaches vanish.) I want to see how the story reads with a female protagonist. (I want my daughters to read the story with a female protagonist.)

Doctorow's released his works as Creative Commons, so there's no issues with infringement; the actual changes are tiny, but it shifts a lot of the emotional impact of some scenes.

I can see other reasons for small technical changes--shifting through time generally involves more than a few words here or there, but could be minor; changing all the characters' names to one's friends could be fun for a particular group to share, and not meant for wider publication, but could be posted on a blog or archive to give access to friends away at college.

I grant all those are rare uses; there's a lot more cases of people grabbing fic from one archive & reposting it elsewhere under a different author's name, sometimes with a different title to hide from the original author. And those are both plagiarism and copyright infringement.

[scarfman]

I want to see how the story reads with a female protagonist. ... Doctorow's released his works as Creative Commons, so there's no issues with infringement; the actual changes are tiny, but it shifts a lot of the emotional impact of some scenes.

I suppose I ought've been a little more empathetic about what you're saying: I liked to take my own Star Trek/Doctor Who crossovers and globally replace the franchises' proper nouns with proper nouns from the King Arthur legends. That was to see whether the resultant works would stand alone well enough to sell, which they didn't; but it was one step in the creative process that led to my daily webcomic. So, knock yourself out and have fun.

[franzeska]

*wanders by from icerocket*

Personally, I think of OTW as a counterbalance to consumers who assume that nothing is fair use unless megacorporations say it is--educating the public about its rights before they get eroded and all that.

Parody isn't necessarily universally fair use either, but most people won't be foolish enough to take that to court. When someone producing parody encounters bullshit scare tactics from a big corporation or has their youtube videos or livejournal accounts deleted without warning, they usually raise a stink. When it happens to a fanfic author, they often don't know what their options are and assume that if youtube caved, there must have been a legal necessity (instead of youtube being too lazy to investigate claims properly as is nearly always the case). A lot of people treat fanfic like a dirty secret, which unfortunately plays into this. Having a big, public, and unashamed archive (not to mention the other parts of OTW) fosters the idea that most fanfiction is likely to fall under fair use, which in turn contributes to the feeling that sending baseless C&Ds and harassing your fans over normal fan behavior is PR suicide. The more prevalent that feeling becomes, the less likely a court case is for anyone.