scarfman | Precision or hairsplitting? You decide (Reply)

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.