Legal issues with fan fiction

To prove infringement, an owner must present evidence establishing that the accused has copied protected elements of the original work.

[5] If proven, possible infringement remedies include an order to cease sharing and/or to destroy the work (known as an injunction), or monetary damages.

Judge Batts explicitly rejected arguments of parody and criticism, stating, To the extent Defendants contend that 60 Years and the character of Mr. C direct parodic comment or criticism at Catcher or Holden Caulfield, as opposed to Salinger himself, the Court finds such contentions to be post-hoc rationalizations employed through vague generalizations about the alleged naivety of the original, rather than reasonably perceivable parody.

Under the Lanham Act, a trademark is "any word, term, name, symbol, or device, or any combination thereof" used in commerce to identify a service or good.

[15] Under this definition, it is possible for the names and likenesses of television, film and book characters, fictional accounts, settings, or other elements of entertainment products to act as trademarks.

Thus, trademark rights may arise when a fictional character's name or likeness may serve to identify the source of an entertainment product or related good.

To the extent that fanfiction uses source-identifying characters, settings and such, the marks are often well known are identical to the original, and are used in similar types of goods (i.e., written fiction).

[23][24][25] A brief note on non-U.S. perspectives: while other countries do not necessarily weigh the interests of trademark owners and other speakers in the same way, noncommercial and expressive uses may receive protection under other nations' laws as well.

White prevailed under California law on the theory that although Samsung had not used her name or likeness, it had used a recognizable depiction of her persona without permission for its commercial gain.

To date, though, no recorded right of publicity suits have been brought regarding noncommercial fan fiction about real persons.

[29] Despite the ruling in White, courts have shown hesitation in other suits to shut down even commercial artistic pursuits based on the right of publicity.

[30] Some courts have relied heavily on Circuit Judge Alex Kozinski's strong dissent from the White decision in order to deny a "Right of Publicity" claim.

The court explained that the use of a name or likeness is not transformative for right of publicity purposes when it "is used solely to attract attention to a work that is not related to the identified person.

Citing Campbell v. Acuff-Rose Music, Inc.—which established that commercial parody can qualify as fair use if it can be perceived as commenting or criticizing on the original—and the subsequent Suntrust v. Houghton Mifflin, the authors wrote that "Similarly, many Mary Sues comment on or criticize the original, while at the same time create something new ... Mary Sues can be commercial and still be fair.

§ 107 because they add "new meaning and messages to the original" work,[37] and thus fall under the exemption to U.S. copyright law the Supreme Court defined in Campbell[38] and which was later revisited and followed in Suntrust.

[39] OTW's vision includes seeing "all fannish works recognized as legal and transformative and ... accepted as a legitimate creative activity.

Flint (a former labor organizer and socialist) contends that this collective work allows the expansion of his alternate history universe into something approaching the complexity of reality.

It can be argued, however, that since work published in the Gazette is paid (at professional rates) and cleared by Flint for canonicity, that this is not actually "fan fiction" in the commonly-understood sense of the term.

Also noteworthy is the series of Darkover anthologies published by Marion Zimmer Bradley, beginning in 1980, consisting largely of fan fiction extended into her canon.

I was told that I had better take what I was offered, that much better authors than I had not been paid as much (we're talking a few hundred dollars here) and had gotten the same sort of 'credit' (this was in the summer of 1992)...a few months later I received a letter from Ms. Bradley's lawyer threatening me with a suit.

Versions of this incident are credited by many to have led to a "zero tolerance" policy on the part of a number of other professional authors, including Andre Norton, and David Weber.

Many authors do this, they state, in order to protect their copyright and especially to prevent any dilution, saturation, or distortion of the universes and people portrayed in their works.

.for a very long time... We built our universes, and our characters; they are our intellectual property; and they are not toys lying about some virtual sandbox for other kids to pick up and modify at their whim.

Internet writer Elf Sternberg took him up on that offer, penning a parody[57] in which members of Niven's hyper-masculine Kzin species engage in gay sex and BDSM.

Niven responded by denouncing Sternberg's story in the introduction to Man-Kzin Wars IV (Baen Books, 1991) and issuing a cease-and-desist for copyright violation.

Naomi Novik has mentioned writing fanfic for television series and movies,[60] and says she'd be thrilled to know that fans were writing fanfic for her series (though she also said she'd be careful not to read any of it); Anne McCaffrey allowed fan fiction, but had a page of rules[61] she expected her fans to follow; Anne Harris has said, "I live for the day my characters get slashed";[62] Tamora Pierce stated on her website that she began writing The Lord of the Rings and Star Trek fanfiction and has no issue with fanfictions based on her works, provided they are non-profit.

[69] In addition, fanfiction may be legal in the UK following passage into law of an exception to copyright for the purpose of caricature, parody, or pastiche.

[70] In countries such as Russia and China, where copyright laws are more lenient or less well enforced, it is not uncommon to see fan fiction based on the work of popular authors published in book form[citation needed].

Perhaps the most famous case, however, is Dmitri Yemets' Tanya Grotter book series, a "cultural response" to Harry Potter, which provoked a lawsuit from J. K. Rowling.

Many dōjinshi works are manga-format fan fiction, which in Japan is, while not strictly legal, generally tolerated and usually encouraged, being looked upon as a form of free advertising or a breeding ground for new talent, most famously the group CLAMP and Love Hina author Ken Akamatsu.