I’ve been thinking about how the idea that “fanworks are not made for profit” is a big part of the reason why they are usually not attacked for copyright and trademark violation.
(Which is why AO3 cracks down so hard on users advertising paid commissions – because OTW worked hard to fight corporate lawyers for the right to share fanworks, and only won us the freedoms we have by promising that fanworks were not made for money.)
But the weird part is…
if the owner of the canon property is worried about fan art and fan fiction competing with their official material…
then, wouldn’t being free make it much MORE competitive?
I mean, I don’t know how often people will actually decide to read fanfiction and look at fan art instead of buying the canon book or movie or show or comic or whatever
But I’m pretty sure that, if it does happen, it’s largely because the fanfic and fan art are free
so… ????
I mean, I’m guessing the reason they get way more litigious when there’s profit involved, is the same reason why there’s usually more legal red tape around selling something than giving it away free…
Which I think is mostly based around the fact that an activity will usually not become widespread enough to be a problem if it doesn’t somehow make someone money
But there are exceptions.
There are things people will gladly put lots and lots of effort into, even if it doesn’t bring in any money.
And fanworks are definitely among these things.
So in this case… is there any actual reason why for-profit fanworks would be more of a problem than nonprofit fanworks?
I guess maybe… people having limited amounts of money…
Maybe for-profit fanworks would compete with official material just because people might not have enough money to buy BOTH …
Fanworks might actually get someone interested in the original/official thing. It’s happened for me.
I’m not sure how much sense this makes, but my understanding is it’s not so much the competition that they’re concerned with as much as other people profiting off their IP. Besides that, fanworks can get others into the original work, which serves as free advertising.
I know there’s also fair use laws that go into this argument, but I am not as familiar with IP law as I should be.
Yeah, I mean, as I see it, the competition is the reason WHY one would have a problem with others profiting off one’s IP. Like, if I create something and then someone else is profiting from it, that reduces the amount I can profit from it… because people have limited money to spend. (Which I guess is why unpaid fanworks are okay, because like I said they don’t actually compete; they don’t take money that people could be paying the original artist.)
But I dunno… the fair use thing is hotly debated and I’m not gonna claim I understand it completely.
And from what I can see, neither does most of the U.S. legal system. What can get ruled (in a court case) to be valid fair use seems to depend entirely on the court and the judge and perhaps their current mood.
From what I’ve read, the idea of fair use was introduced to allow certain important types of commentary.
One example is quoting a piece of writing when you’re doing journalism and that piece of writing is a relevant piece of evidence in the story. (I remember a time when some shady “news” outlets tried to challenge this, suing for copyright infringement whenever anyone tried to point out lies in their broadcasts. Luckily they failed for the most part, and this type of commentary is very much accepted as fair use now.)
Another example, of course, is parody. We had socially accepted parodies long before fanfic was considered legal. Usually they would change names to be safe (like when MAD magazine would do a whole comic-format spoof making fun of a popular movie, renaming Ferris Beuller to “Fearless Buller” and so on). But in some cases they didn’t even bother with renaming. (I remember a Far Side cartoon featuring the crew of the Starship Enterprise, which was explicitly called the Starship Enterprise in the comic, no attempt to rename it.) I remember thinking about this, as a kid in the 90’s, wondering why jokes and mockery seemed to be the only legal type of copyright infringement.
The OTW has done a lot of legal fighting since then to get fanworks accepted as valid fair use. The type of nonprofit use that happens on Ao3 doesn’t tend to get challenged in court anymore. But it’s still not accepted on the same level as MAD magazine parodies or SNL spoofs, because it’s still generally considered infringement to make money off that.
When I try to decide whether I consider something fair use, my usual thought experiment is to put myself in the shoes of the copyright owner. Like:
If I made up a whole imaginary world, populated by my own OCs… and then I published and sold my own stories about it, in the form of novels and comics and so on… what type of fanworks would I be ok with?
How would I feel if someone used my OCs or my original world in their own writing or art, without asking for my permission?
Would the answer change depending on what type of work it was– written or visual?
Would it depend on whether and how they gave me credit?
Would it change based on whether or how they made a profit from it?
Personally, for me, I would be okay with any of it, AS LONG AS I was credited for whatever ideas were taken from my work.
Monetizing would be okay, from my viewpoint. (I’d be feeling a deep sense of unfairness if the fan creator was making MORE money off my ideas than I was. But I’d accept that this probably meant they were contributing something valuable of their own… and I’d still consider it good publicity, as long as they made it clear where the ideas came from.)
For me, the only thing that would get me actually fighting would be if someone used my ideas WITHOUT crediting me. (And even then, I’d do some deep analysis of whether the ideas were really my property, or whether the other person might have just come up with something very similar on their own. There are limited ways a story can go, and minds tend to gravitate independently toward certain types of ideas, and I’m not going to challenge similarity unless it copies specific details in a specific way.)
But that’s just my view. Copyright law in general is stricter than I would tend to be in defending my own copyright.
And what’s socially acceptable within fandom can be both stricter and more lenient than actual law.
(More lenient when dealing with fanworks of properties owned by the rich and powerful, like Disney or Paramount. But stricter when dealing with the works of small, struggling artists, or ideas copied from one fanwork by another.)
(And to make it even more confusing, the exact line between “struggling artists” and “rich copyright owners” is also a topic of debate.)
(And I’m not even gonna get into the whole argument over how AI “art” programs are trained.)
(It’s all just such a complicated mess, and I do not think it’s possible to have a simple opinion on any of it.)