Axanar anthology

[TheAlmanac]

I'd heard the lawyers were already putting together a not-for-profit defense, I was thinking this might actually finally end up creating a test case for defining fan-creation bounds in terms of fair use.

Profit or lack thereof is irrelevant with regard to copyright infringement. Even if a fan film or a piece of fanfic never earns a cent, if it uses copyrighted elements without permission, then it is an infringing work. Consequently, the not-for-profit angle as a defense is a guaranteed loser, based on statutes and case law precedents. U.S. copyright law is not forgiving in the least.

Although I agree with this viewpoint, there are groups like the OTW which make the argument that all fanfic is inherently transformative. (See the "Legal" section of the FAQ I just linked to.) Despite being started by lawyers and making this argument in a variety of venues, however, they haven't launched a test case themselves, so I would ideally like to see an on-point case about genre fanfic itself to definitively settle the issue in US case law.

^ I suspect that, in some cases, there is also a financial consideration: It simply isn't worth CBS's time to pursue every small-scale infringer; the legal costs would be prohibitive, and most of the parties are insufficiently capitalized to be able to pay damages.

That's what DMCA takedown notices are for. CBS could destroy the fan film community with a few dozen scary form letters. Fanfic would be a little more time consuming, but having an intern trawl the major repositories and send out a weekly DMCA request wouldn't be that expensive. I think there are even companies that specialize in that sort of thing.

Similarly, the OTW also launched their own archive of fanfic (with the motto "We own the ***damn servers!") that wouldn't automatically respond to DMCA notices. Having said that, I don't know how many they might've received since then or what their typical response is.

 

[David Mack]

I'd heard the lawyers were already putting together a not-for-profit defense, I was thinking this might actually finally end up creating a test case for defining fan-creation bounds in terms of fair use.

Profit or lack thereof is irrelevant with regard to copyright infringement. Even if a fan film or a piece of fanfic never earns a cent, if it uses copyrighted elements without permission, then it is an infringing work. Consequently, the not-for-profit angle as a defense is a guaranteed loser, based on statutes and case law precedents. U.S. copyright law is not forgiving in the least.

Although I agree with this viewpoint, there are groups like the OTW which make the argument that all fanfic is inherently transformative. (See the "Legal" section of the FAQ I just linked to.) Despite being started by lawyers and making this argument in a variety of venues, however, they haven't launched a test case themselves, so I would ideally like to see an on-point case about genre fanfic itself to definitively settle the issue in US case law.

^ I suspect that, in some cases, there is also a financial consideration: It simply isn't worth CBS's time to pursue every small-scale infringer; the legal costs would be prohibitive, and most of the parties are insufficiently capitalized to be able to pay damages.

That's what DMCA takedown notices are for. CBS could destroy the fan film community with a few dozen scary form letters. Fanfic would be a little more time consuming, but having an intern trawl the major repositories and send out a weekly DMCA request wouldn't be that expensive. I think there are even companies that specialize in that sort of thing.

Similarly, the OTW also launched their own archive of fanfic (with the motto "We own the ***damn servers!") that wouldn't automatically respond to DMCA notices. Having said that, I don't know how many they might've received since then or what their typical response is.

It's not a viewpoint, it's the law. Go read 17 U.S.C. §101 et. seq. and find out the cold, hard truth for yourself.

Lack of profit is not relevant; while it is one aspect of an affirmative "fair use" defense, by itself it is not enough. There are only two kinds of accepted "fair use" — commentary/criticism, and parody/satire.

Some fanfics and fan films might be defensible as parody, but most are derivative works, not transformative ones.

Commercial vs. noncommercial nature is one of the tests for the commentary/criticism defense — which is not applicable to fanfic or fan films.

 

[Idran]

There's more to law than just the text of the USC, and the position of the OTW is that judicial precedent at the current time (largely Folsom v. Marsh and Campbell v. Acuff-Rose) supports the view that fanwork is a transformative work which qualifies under fair use, given that its purpose is not to supersede the original work but rather stand alongside it. To quote from the opinion in Campbell v. Acuff-Rose:

The central purpose of this investigation is to see, in Justice Story's words, whether the new work merely "supersede the objects" of the original creation, Folsom v. Marsh, supra, at 348; accord, Harper & Row, supra, at 562 ("supplanting" the original), or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is "transformative." Leval 1111. Although such transformative use is not absolutely necessary for a finding of fair use, Sony, supra, at 455, n. 40, [n.11] the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. Such works thus lie at the heart of the fair use doctrine's guarantee of breathing space within the confines of copyright, see, e. g., Sony, supra, at 478-480 (Blackmun, J., dissenting), and the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.

All the examples of "derivative work" in 17 U.S.C. §101 - translations, adaptations, annotations, dramatizations, fictionalizations, abridgements - demonstrate that a derivative work is something meant to stand in place of the original, something holding itself on equal footing to the original.

And in particular, "fair use" is not something which can be declared, but which is in place only through judicial determination. 17 U.S.C. §107 is explicitly written as, and has always been used in practice as, a judicial framework by which a given work can be determined by the courts to be infringing or not. The list given is not a restrictive list, but is meant to serve as examples of what qualifies:

...for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research...

It has always been the case that a given work can only be declared as "fair use" or not after a court case has established whether or not it falls under that category.

 

[Idran]

And because I can't edit that post (it's giving me the "blank post" error), I add from the same judicial opinion more on what exactly I mean about "fair use" being for courts to decide rather than the USC:

Congress meant § 107 "to restate the present judicial doctrine of fair use, not to change, narrow, or enlarge it in any way" and intended that courts continue the common law tradition of fair use adjudication. H. R. Rep. No. 94-1476, p. 66 (1976) (hereinafter House Report); S. Rep. No. 94-473, p. 62 (1975) (hereinafter Senate Report). The fair use doctrine thus "permits [and requires] courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster." Stewart v. Abend, 495 U.S. 207, 236 (1990) (internal quotation marks and citation omitted).

 

[TheAlmanac]

It's not a viewpoint, it's the law. Go read 17 U.S.C. §101 et. seq. and find out the cold, hard truth for yourself.

As I said, I already agree with you.

Lack of profit is not relevant; while it is one aspect of an affirmative "fair use" defense, by itself it is not enough. There are only two kinds of accepted "fair use" — commentary/criticism, and parody/satire.

Some fanfics and fan films might be defensible as parody, but most are derivative works, not transformative ones.

Commercial vs. noncommercial nature is one of the tests for the commentary/criticism defense — which is not applicable to fanfic or fan films.

I wasn't describing my own viewpoint, but rather trying to describe the argument I've seen used by the OTW. I linked to their website only because they spell out their fair-use argument more fully on it.

The fact that that opinion comes from the lawyers who started that group seems to give them (and their supporters, which do not include me) a perception of authority in some circles, but I personally feel that they're looking at US copyright law through rose-tinted lenses because of their love/advocacy for fanfic and that corner of fan culture--I've witnessed them excitedly holding up rulings which they claim support their viewpoint, only to see nothing of the kind when I read the full ruling for myself.

(One recent ruling about a theatrical reimagining of Three's Company even explicitly said that changing a character's sexual orientation isn't enough to make a work transformative, which is bad legal news for slashfic writers.)

I'd love to have an on-point test case so that this viewpoint could be shut down definitively, but (as I said in my initial post in this thread) I think both sides are motivated not to risk changing the status quo--neither would want to have any aspect of a ruling not go their way. It's much easier/less expensive to continue the tacit look-the-other-way don't-rock-the-boat approach which has been pretty effective for decades now.

 

[TheAlmanac]

Wait, you want fanwork to be shutdown? Or rather, you want it to stay in a "we could crush you at any moment...but we won't, because we are a kindly corporation" situation?

I think the latter situation (the current status quo, really, more or less) is a best-case scenario for fanworks in terms of US copyright law, which is not on their side.

Having the legal opinion shut down would, in practice, just allow that status quo to keep going (I still don't think corporations would shut down all fanworks anyway, for the logistical reasons David Mack mentioned) without any groups giving legal opinions (and having others put weight in them) that are (IMO) specious.

 

[Idran]

Sorry, I deleted that post too late I guess; I thought it was too harsh and too quippy.

But anyway: you're talking about Adjmi v. DLT Entertainment (2015) (which, incidentally, supported "3C" as being fair use); that's not exactly what the quote you describe was claiming.

Take first the cornerstone of Three's Company, Jack's false homosexuality: there is the obvious difference that 3C's analogue, Brad, is actually homosexual. That change in itself might not be transformative.

First off, it's saying that it might not be transformative. Second, it's talking specifically about taking a character that is pretending to be gay and making them actually gay as not necessarily transformative. It isn't talking about the overall general idea of changing a character's sexuality as negatively impacting determination of whether or not something is a transformative work, and it's not saying anything about changing the sexuality of a character arbitrarily; in this case, it's because it's an obvious change to go from "pretending to be of a different sexuality" to "actually that different sexuality".

 

[Christopher]

I don't know about the law, but it makes sense to me that all derivative fiction based on a given entity's intellectual property exists at their indulgence -- either because they pay people like me to create it under license or because they choose to tolerate it when amateurs create it. Either way, it can only happen to the extent that they let it happen, and no further than that.

If amateur filmmakers want to make films that they have control over -- and particularly if they want to produce work on a professional level -- then nobody's stopping them from creating something original. That's what you do if you want control. If you're borrowing someone else's toys, then it's a given that you can only do so if they're willing to let you, and that's a rather restricted realm to operate in. If you want to move beyond those restrictions, you create something of your own.

 

[Idran]

Christopher, part of the argument is that this isn't derivative fiction, as the legal term "derivative work" has always been held in both statute and precedent going back as far as Folsom v. Marsh to mean something that is meant to supersede the original, something which is meant to be used in place of it. So a translation of an episode of Star Trek would be derivative, or an abridged version, or a theatrical dramatization, because they replace the original. If it doesn't actually take the place of the original, legally it isn't a "derivative work".

 

[Christopher]

^Well, whatever the correct word may be, I'm talking about fiction based on someone else's creation.

 

[Idran]

^Well, whatever the correct word may be, I'm talking about fiction based on someone else's creation.

It might make sense to you, and I can understand that perspective, but court precedent in the US does outright say otherwise. One of the cornerstones of how a court determines if something falls under fair use or not is if it replaces the original work (derivative) or if it stands alongside it (transformative). Again, this is how US copyright has been treated for over 150 years, and the Copyright Act of 1976 did not change the way that courts interpret whether or not something is a valid use of another's intellectual property, it merely partially codified it.

The problem is that strictly abiding by your standard would exclude a whole range of things that shouldn't be controlled by the IP holders: commentary, criticism, parody, etc. So there's two ways you can go. You can just make a whitelist of everything that should be allowable outside the wishes of the IP holder (what's often called a "bright-line" rule), or you can determine what the core nature of those things are and allow the courts to decide on a case-by-case basis whether something captures that core nature. US copyright law decided to take the latter tack, deciding that that core nature is (among other things) "it does not actually replace what was created, it does not serve as an alternative to it, but rather it stands alongside it", and having the courts decide whenever it comes up if something does reflect that distinction or not; if it does, then it's fair use.

It's common perception that fair use is a bright-line rule using the list of examples in 17 U.S.C. §107, but the courts have consistently declared that it is not, that fair use is wholly determined by a decision-making framework that has been established through common law over the years and is partially spelled out in said statute.

 

[trampledamage]

One of the cornerstones of how a court determines if something falls under fair use or not is if it replaces the original work (derivative) or if it stands alongside it (transformative).

Law is weird To me, those are very counter-intuitive definitions of derivative and transformative.

 

[Idran]

Indeed, which is where I think a lot of the confusion comes from around this stuff.

You can think of "derivative" as meaning "wholly derivative" in terms of adding nothing new to the work, just tweaking it in some manner such that the final product can serve as a replacement to the original, that you could swap them and still achieve the same basic purpose. While "transformative" means that it has transformed enough of the original work that it no longer can supersede the original, that it is a separate enough work that it stands apart from it to some degree, that you can't just swap one out for another and achieve the same purpose.

 

[TheAlmanac]

One of the cornerstones of how a court determines if something falls under fair use or not is if it replaces the original work (derivative) or if it stands alongside it (transformative).

Law is weird To me, those are very counter-intuitive definitions of derivative and transformative.

I'm not sure this is necessarily a semantic hair worth splitting, but I also think Idran is using an overly-strict set of definitions here--for one thing, I imagine it'd be fairly easy for a copyright-holder to argue that a fan film "replaces" the original filmed material or that fanfic "replaces" licenced tie-ins, with neither example being seen as sufficiently transformative.

 

[Christopher]

The problem is that strictly abiding by your standard would exclude a whole range of things that shouldn't be controlled by the IP holders: commentary, criticism, parody, etc.

Of course it wouldn't, because I'm talking about writing fiction purporting to be set in the universe of the original work, as opposed to fiction set in an original universe. Nonfiction and parody are also not meant to be set in the original universe. (I don't count "nonfiction" like Federation: The First 150 Years or Mr. Scott's Guide to the Enterprise, because that's fiction written in the semblance of an in-universe nonfiction work, in a similar vein to an epistolary novel like Dracula or Gulliver's Travels, or a found-footage movie like Chronicle or a faux documentary like Europa Report.)

 

[Idran]

I'm not sure this is necessarily a semantic hair worth splitting, but I also think Idran is using an overly-strict set of definitions here--for one thing, I imagine it'd be fairly easy for a copyright-holder to argue that a fan film "replaces" the original filmed material or that fanfic "replaces" licenced tie-ins, with neither example being seen as sufficiently transformative.

Very true, but it would be up to a judge to determine if that were true or not for a specific work. From a legal perspective, contrary to the way "fair use" is usually perceived, literally no work is or isn't fair use until a judge rules specifically on that work. All that a person creating a work can do is use past precedent and guidelines to determine if their work would likely pass such a test or not were a legal case to be brought. There is no true "fair use" category, it's all common law tests based on past determination.

Of course it wouldn't, because I'm talking about writing fiction purporting to be set in the universe of the original work, as opposed to fiction set in an original universe.

I was explaining to you why your intuitive view on things isn't how the law actually works on the matter. The legal status of a work has nothing to do with whether that work describing stuff that doesn't exist is doing so from inside the stuff that doesn't exist or from outside the stuff that doesn't exist. I hate to be blunt, but your intuition on this matter is just wrong, and I've gone into great detail with multiple legal citations why it's wrong.

At best, a non-fiction work I suppose would have a better claim at being transformative, since it would be far less likely for a work describing elements from a remove to be considered a derivative work in the legal sense; no one could reasonably take something like the TNG Tech Manual in place of TNG itself. Though something like the ST Encyclopedia, if it were a fan creation, certainly could be seen as such despite being nonfictional.

 

[Christopher]

^I don't agree that my intuition is "wrong," because I'm not talking about the law, I'm talking about common sense. What I'm suggesting is that if creators would use common sense in these matters in the first place, it would never reach the point where the law would have to get involved at all. If you want to make money from fiction without being on someone else's payroll, then you create your own fiction. That seems self-evident to me.

 

[ryan123450]

As I saw someone on Twitter point out this week, if CBS was smart they would encourage the fan film community in the same way Lucasfilm does. It's not hurting them a bit. Having the fan base energized enough to create quality fan films means only good things for your brand, and CBS should be encouraging Axanar if anything.

 

[Idran]

^I don't agree that my intuition is "wrong," because I'm not talking about the law, I'm talking about common sense. What I'm suggesting is that if creators would use common sense in these matters in the first place, it would never reach the point where the law would have to get involved at all. If you want to make money from fiction without being on someone else's payroll, then you create your own fiction. That seems self-evident to me.

It doesn't seem self-evident to me, but to each their own, I guess. I mean, how do you feel about Wicked? Should Maguire have come up with his own setting instead of taking Baum's?

(Yes, Baum's work is public domain, but I'm talking about in principle.)

 

[Bibliomike]

Anyone who's read Baum will tell you that Gregory Maguire effectively did come up with his own setting. His Oz is virtually nothing like Baum's. It shares some place names and some physical features, but is Baum's Oz in name only. I think Maguire even acknowledges as much.

You mention the fact that Oz is public domain in passing, but that makes all the difference. The situations simply aren't comparable. Maguire had an idea about reimagining Oz. Since the Baum books are public domain, and presumably Maguire, being an intelligent author possessed of common sense, double-checked this, he was all clear to go full steam ahead. Presumably, had Baum's Oz still been in copyright, he would have gone back to the drawing board.

Note that Maguire has some clever allusions to the 1939 MGM musical, by the way, but steers well clear of any direct reference or alteration of iconic Judy Garland elements. As Christopher says, it's common sense and it's the law. Not comparable situations at all.