Ivan Hoffman, B.A., J.D.
Just because you are a fan does not mean you are not also an infringer. In fact and in law, if you use elements of protected works including copyrights, trademarks and other elements, without the permission of the owner of these rights, you are likely violating the intellectual property rights of the owners of those protected elements.
Keep in mind that even if the owner of those rights elects not to sue or otherwise enforce its rights does not change the nature or character of the infringement or other violation. Remember: just because you can, doesn’t mean you should. Read “Respect for the Law.”
By the very nature of your work, you must use protected elements of the underlying works. These include, among other elements, copying, displaying, perhaps performing, distributing your work containing those elements and each of those rights are granted exclusively to the copyright owner by the federal copyright law.
17 United States Code, section 106, states in part:
§ 106 . Exclusive rights in copyrighted works
Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
So when you write something (or create any other form of work) which includes the protected material, you are violating the right to make copies (“reproduce”) as well as the right to make “derivative works.” A derivative work is a work based upon and which uses an underlying work that is protected. The statutory definition states:
A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a “derivative work”.
And when you post your work up on the Internet, whether to a site, your own web site, a social media site or otherwise, you are violating the right of display. Depending upon how else you are using the work you created and what the nature of that work is, you are likely violating other rights of copyright.
And you are violating these rights whether or not you sell or otherwise make money from your work. The above rights have nothing whatever to do with whether you make money. That may be a factor in discussing “fair use,” (see below) or in assessing damages but it has nothing whatever to do with whether there is an infringement.
Furthermore, your work may also involve infringing upon the trademark rights of the owner of those rights. Characters, especially cartoon characters, are often used as trademarks and may be federally registered marks (although they do not have to be so registered to be protected in the United States). Having trademark rights gives the owner of those rights exclusive rights to keep its mark from being used to identify the source of others’ goods and services and thus to prevent customer confusion as to that source. So if you are using trademarked elements in your work, you may be infringing upon those exclusive rights of the trademark owner.
Additionally, even if your use does not rise to the level of infringement of trademark, you may be “diluting” the value of the owner’s mark. In the instance of “famous” marks, if your use results in a diminution in the value, real or perceived, of the mark, if it “dilutes” the strength of that mark, there is a separate claim that can be raised against you.
Depending on the facts of the given situation, your act of writing or otherwise creating fan fiction may involve you in claims that you have violated other rights of the rights owner.
The “Fair Use” Defense
There is a potential defense to both copyright and trademark infringement based on the respective doctrines of “fair use.” (Read the numerous articles on my site about copyright fair use on the link “Articles for Writers and Publishers” and the articles on my site about trademark fair use on the link “Articles About Trademarks and Domain Names.”)
Note the operative word “defense.” This likely means that you have already been sued, something you should work studiously to avoid. I practice preventative law. I used to practice remedial law, better known as “litigation,” but realized that litigation is usually very destructive to the creative parties since during the litigation, not only do they spend enormous sums defending their works but their works are, for the most part, unusable during the pendency of the litigation. So if you are planning on relying on “fair use,” be prepared to litigate. If you are the recipient of a claim from a rights owner, merely replying that your use was “fair use” is unlikely to put the litigation process on hold. The cases about what is and is not a “fair use” are all over the map and only a court can make this determination. The copyright statute is most unhelpful (there is no federal fair use statute) in that it provides only very general guidelines.
The “Everyone’s Doing It” Defense
This “defense” is no defense at all…it is a rationalization. “Everyone’s” got an anecdotal tale about how their friend did this and never got sued etc. The only thing that anecdote proves is that no one got sued…that time. Remember: It never matters… until it matters…and then…it matters.TM Most creative works are failures (not a comment on any particular work but merely a comment about statistics in the “creativity” business) that they never reach the attention of the rights owner and even if they did, the potential “harm” to the rights owner is so insignificant in terms of the market reach of the infringing work that it almost never pays to pursue the issue.
But in the one instance in like a billion where what you wrote or otherwise created actually becomes even moderately successful, you can’t count the number of claimants that are going to come out of the woodwork and take all your money and efforts for themselves. And, as indicated above, during the process you as the creator are at a distinct disadvantage since it likely means that you will not be able to use your work and you will have to, at the very least, pay your attorneys fees and costs and if you lose, you will likely end up paying not only your attorneys, but probably the other side’s attorneys, damages, indemnities to the parties you indemnified (such as publishers, web sites etc.) and other fees, costs and monies.
Why not simply spend your creative talents creating something original that is not dependent on the creativity of someone else?
Copyright © 2014 Ivan Hoffman. All Rights Reserved.
This article is not legal advice and is not intended as legal advice. This article is intended to provide only general, non-specific legal information. This article is not intended to cover all the issues related to the topic discussed. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. This article is based on United States law. You should consult with an attorney familiar with the issues and the laws of your country. This article does not create any attorney client relationship and is not a solicitation.
No portion of this article may be copied, retransmitted, reposted, duplicated or otherwise used without the express written approval of the author.