I made a short video answering questions about the legality of fanfiction. Check it out below.
More from Moki’s Fanfiction Blog…..
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Fanfiction Writer to Entertainment Writer – My NCIS:Los Angeles and Supernatural Interviews from Comic Con
Moki’s NCIS Fanfiction Story: “The Cavalry Rides Again” – Chapter 17
Moki’s Supernatural Fanfiction Story: “Blood Brothers” – Chapter 5
Moki’s Supernatural Fanfiction Stories and Recs
Moki’s NCIS Fanfiction Stories and Recs
When I started thinking about doing a blog about fanfiction, the subject of legality of course came up. Any fanficcer out there knows that fanfic is illegal, right? But I had to figure out what that meant exactly and how it was possible for sites like fanfiction.net to post stories that were, in essence, nothing but massive copyright infringements.
So I did some research and found some information that was very useful. The best resource I found was on the site ChillingEffects.org. They have an entire FAQ page about Fanfic that you can take a look at HERE.
As for me, I found three particular questions/answers from their site that helped a lot.
Question: What liabilities could ISPs face? (And what can FanFic authors expect from their ISPs?)
Answer: As more companies deal with FanFic through ISPs, it is important for ISPs and FanFic authors to know what rights they have. The Digital Millennium Copyright Act (“DMCA”) establishes a “safe harbor” from liability for ISPs that exercise no control over content other people provide. If your ISP fits under the safe harbor provisions, then it will not face monetary damages, only a possible injunction. Under the safe harbor provisions, you as the author are entited to notice that the ISP might take your story down, and you can issue a counter-notice claiming that your work is not infringing.
The DMCA also has certain other procedural requirements that allocate the burdens between copyright holders, ISPs and individuals. Specifically, the copyright holder has the burden to find the ISPs that carry the offending material. The ISP then has the burden to send notice to the offending users. The user then has the right to file a counter-notice for fair use or some other defense, at which point the ISP can remove itself and let the copyright holder and the user fight it out. If the ISP is found to be secondary liable (see “Is there an infringement”), then it pays no monetary damages and suffers only the possibility of an injunction. Nonetheless, ISPs generally prefer less liability and will often exert enough pressure on the individual such that the individual complies or is forced to find another ISP. With little resources, it is only expected that individuals face the brunt of this burden allocation. (See the DMCA section of this website for more information).
Okay so one of the biggest questions I’ve always had about fanfiction was how a site like fanfiction.net could exist. As they are obviously making some money by posting works that are in direct violation of copyright laws (as I understand them). Whether or not they “profit” I of course have no idea, I’m only basing my opinion on the fact that there are ads running on their site. Now I see that they, as an “ISP” (Internet Service Provider – in other words, the host site) must be operating under the “safe harbor” provisions since they don’t actually post anything up there, we the fans do.
Question: How do companies usually react to FanFic?
Answer: Different companies have different methods in dealing with FanFic. Some, like Paramount Pictures, see that FanFic could actually help boost their sales and so encourage the writing of FanFic. Other companies are presumably waiting for more business information and legal clarity before making a decision. For example Universal, which owns the rights to Xena: the Warrior Princess, have yet to go after the numerous copyright violations involving what fans dub the “Xenaverse.” The Universal approach is in sharp contrast to Fox Television and Viacom, both of whom resort to harsh cease-and-desist letters against unauthorized Web site creations by fans of such shows as “The X-Files,” “Millennium” and “Star Trek.”
In order for a corporation to win a cease-and-desist order against a FanFic author, it would have to prove that it was suffering financial damage, something that is hard to prove since much of FanFic actually helps boost sales. This has helped motivate companies to go after ISPs. Being caught in the middle of the battle, ISPs will often put pressure on the FanFIc authors in order to avoid liability, a decision which often leaves FanFic authors without any choice but to remove the supposedly offending material.
For me it was that last paragraph that really helped me to relax about publishing my own fanfiction, especially on an established and well-known site like Fanfiction.net. An author would have to prove that it was suffering financial damage and as I am not earning anything by posting my stories, I am not taking any money from them.
Question: What benefit does an author credit provide?
Answer: A credit serves as a disclaimer. Strictly speaking, disclaimers do not absolve an infringer from liability. However, disclaimers do serve an important function. Disclaimers explain the purpose and extent of the borrowing author’s use and show that they recognize their “borrowing.” Thus, disclaimers help appease original authors’ fear that they will lose control over their works. The acknowledgment of the original source and ownership of the original work can reinforce the communal aspects of fandom and show that the borrowing authors respect original author’s rights.
Now I’ll admit that I always wondered why people bothered to put disclaimers up on their stories. I mean we all know we’re reading fanfiction. We all know that the characters and basic canon don’t belong to the fanfic author, so why the disclaimer? Well now I get it and I fully plan to add one to each of my stories from now on. Just in case anyone associated with the original work sees it, I want them to know that I fully acknowledge borrowing from them and respect their work.
Another interesting piece of information I found was on FictionPress.com.
“Do You Realize Fanfiction is Illegal?” – An Essay by Leo Damascus on fictionpress.com
Now I’m not saying I agree with everything this author said, but the article did provide some more information as well as another opinion on the subject.
So basically from what I’ve been able to gather, posting fanfction on a site protected under “safe harbor” provisions, without profiting from it, and with a disclaimer, should provide a fanficcer protection from being hit with a law suit. However, please keep in mind that I am NOT a lawyer so nothing up here should constitute as legal advice. If you really want to know more, you should contact a lawyer yourself.
For those of you wondering how I could host my own fanfiction blog, my solution was to not post any fanfiction on this site. I may link to stories hosted on other sites, but I will not host any stories myself. This blog is only about the subject of fanfiction.
I hope that helped to clear up some things for anyone wondering about this stuff, I know it did for me. Feel free to let me know what you come across in your own research on the subject.
More on Fanfiction…