BBM Fan Fiction Feels the Chilling Effects

[injest]

Thank you Pen! I agree completely....it has been a year that we have happily enjoyed our writings and discussions. The sites themselves have recieved no word from the copyright owners so no need to panic over it. Enjoy the stories and if you get a notice...well, that is the risk you took! 

[souxi]

So what about those who write RPS then? Does this apply to them? Authors like Mantra(Lovehurts4ever) write a lot of RPS. I hope this doesn,t mean she has to take any of it down. She always makes clear that none of the events she describe actually happen etc, but is that enough? Her journal is locked now to friends only so maybe she,ll be ok. I hope so.
And what about all the other fanfic out there? There are loads and loads of stories. Have they ALL got to come down?
I appreciate what the legal people are saying but I still think they are a bunch of miseries, trying to spoil our reading enjoyment.

[injest]

I don't think so. There has been no blanket ban...and I think Livejournal would let ya'll know if there was.

I would be interested to know if these accounts that ARE being targeted had paypal links on them?? That may be what triggered the letters...

Louise do you have a paypal link on your site?

[louisev]

I remember my reaction when I first heard of Fanfiction. Before BBM, I had no idea that something like this exists, let alone what it means.

One of my first thoughts was: this can't be legal! And for my personal sensation (coming from one of those European countries with stricer laws than the US) it is rightfully illegal.
Speaking especially of BBM here: I read FF, I enjoy it and I even write it (only to a very small intent). I have grown very fond of some FF stories.

But: my personal sense of justice still tells me it's not legal what we do. And apart from the legal aspects, I am even not sure what I think of the moral aspects. But this is not the topic here, it's only about the legal aspects and we should try to be level-headed on this topic.

The characters do not belong to us. They belong to Annie Proulx in the first place, and to Ossana/McMurtry and the publishers . And if one of the owners of the story (respectively their legal representatives) demands to withdraw a FF, they have every right to do so. It's nothing to fret about. We can regret it, we can feel sorry for the author and sad when a story is no longer available. But my peronal feeling is that we have no right to be angy about it.
I think every author of FF should be aware that s/he writes on the risk of being told to withdrawl the story. I think we should be aware that what we do is not legal.

actually it is quite rightful to write whatever you like, about whatever you like, including making up new stories about characters created by other people.  And in the US, Britain, and many other countries you can quote other created stories, you can write parodies of them that are recognizable comments on the original, comment on them directly, and criticize them.  What can not be done is to profit from any derivative use that is outside a vague area described in the clause 'Fair Use.'  You cannot charge for these creations nor print them and benefit in any way.  Copyright concerns only to a limited extent, the ownership of a creation: it deals with the benefit derived from it to the person who owns it.  Which is why copyrights expire:  the right of reproduction and sale of copies of a creation are held by the person who created it or the person they assign it to - for a period of time which is deemed its commercial life, and for 50 years beyond. Then it comes into the public domain unless the copyright is assigned to and renewed by another party to whom rights devolve.

Therefore the fair use of something that is 5% owned by Annie Proulx and the other copyright interests within Brokeback Mountain's derivative products, and 95% written by me, is not wholly owned by Annie Proulx.  Removing that 5% removes any claim to it, and that is what I did.  Using 5% of Brokeback Mountain to create a fan fiction which is a completely original in its plot, is arguably deemed 'fair use' for the transformative purpose of a tribute commentary, but that has not been fully tested legally and is in a grey area.  I chose to remove the grey area test, as, it would seem, are many others.  It is the path of least resistance.  It does not mean that fan fiction is illegal - it means that it is still in the grey area of Fair Use and may or may not withstand legal scrutiny.

[louisev]

So what about those who write RPS then? Does this apply to them? Authors like Mantra(Lovehurts4ever) write a lot of RPS. I hope this doesn,t mean she has to take any of it down. She always makes clear that none of the events she describe actually happen etc, but is that enough? Her journal is locked now to friends only so maybe she,ll be ok. I hope so.
And what about all the other fanfic out there? There are loads and loads of stories. Have they ALL got to come down?
I appreciate what the legal people are saying but I still think they are a bunch of miseries, trying to spoil our reading enjoyment.

RPS is another whole ball of wax.  RPS represents a truly risky venture in that a real person depicted as themselves in a fictional situation, if they object to the story being written about them, may choose to seek redress for defamation of character, and/or invasion of privacy.  It has nothing to do with copyright - it has to do with the right of individuals to not have others write things about them that are untrue or which they or others may find inflammatory, offensive, or harmful to their reputation.  Public figures, to some extent, are less entitled since they have public lives and their lives are to some extent, entitled to scrutiny as matters of public interest - however, that does not extend to speculating about or writing detailed stories about their sex lives.

[Penthesilea]

that is outside a vague area described in the clause 'Fair Use.' 
...
It does not mean that fan fiction is illegal - it means that it is still in the grey area of Fair Use and may or may not withstand legal scrutiny.

Regarding the demand of copyright owners to take a fanfiction down it has only theoretical meaning if it is outright illegal or in "some vague leagal grey zone", meaning it can be legal or as well can be not. As long as you don't have the monetary and judical possibilities to fathom the grey zone (or as long as the jurisdication is not further clarified) you know you write at the risk of having to take your story down.

And if it is solid/valid in a legal sense to rely on "Fair use" in the case if fanfiction - well, not even jurists are sure about it, how should we be able to make a definitive statement about it? I think we aren't and therefore have to accept that the people who created the characters/hold the rights can claim their rights on them whenever they want.

Therefore the fair use of something that is 5% owned by Annie Proulx and the other copyright interests within Brokeback Mountain's derivative products, and 95% written by me, is not wholly owned by Annie Proulx.  Removing that 5% removes any claim to it, and that is what I did.  Using 5% of Brokeback Mountain to create a fan fiction which is a completely original in its plot, is arguably deemed 'fair use' for the transformative purpose of a tribute commentary, but that has not been fully tested legally and is in a grey area.  I chose to remove the grey area test, as, it would seem, are many others.  It is the path of least resistance. 

I didn't have your story in mind, since you remove any references to BBM and therefore should be home and dry.



Let me explain it with another example: A person owns a property of land outside town and doesn't use it. Sometimes people passing through camp on the land and the youth of the town uses it for nightly gatherings. As long as the owner doesn't say anything, it's fine. But at the very moment he forbids anyone to camp there of have partys there, they have to follow his demand. He can put up a sign, he can put a fence around the land - whatever he wants. It does not matter whether the other people's use does harm to his property or not. Maybe they were even improving the value of the property by weeding (for the sake of the discussion, lol). It simply does not matter - if the owner demands other people to stay clear off his land people have to do so. He can also demand only two or three people to stay clear off his property, it's his right.

My peronal sense for justice tells me it's the same with fanfiction: the property are the characters. Because we certainly do not hold any rights on them. We can use them with the motto: no complaint, no redress. But at our own risk.

[louisev]

This is largely true, Chrissi.  I wrote my story on the basis that with its lack of profit motive, it would not hit the radar.  One of the Fair Use tests (there are four) is commercial profitability or infringing upon the commerical viability of the original.  There is no commercial threat, and that is one of the tests.  Amount of copying or borrowing is another test, and that one is harder to quantify, and is fiercely argued in some of the case law.  The third Fair use test is 'intent' - and intent in the case of fan fiction, it may be argued, is commentary and criticism on the original work.  a tribute, which is what almost all fan fiction is, a tribute to the original which is cited as 'canon' is a tribute commentary of the fan fic writer's appreciation for the original work, an appreciation which causes them to extend the experience.  It is this test that is most argued.  Parody as a fair use is well established, and so is criticism.  But 'commentary' is a huge grey area, and one on which the legality and viability of fan fiction lives or dies.

[louisev]

In summary, from Chillingeffects.org, here is the relevant section concerning the Fair Use doctrine:


Copyright and Fair Use

When a copyright holder sues a user of the work for infringment, the user may argue in defense that the use was not infringement but "fair use." Under the fair use doctrine, it is not an infringement to use the copyrighted works of another in some circumstances, such as for commentary, criticism, news reporting, or educational use. The defense generally depends on a case-by-case judgment of the facts.

Fair use is codified at Section 107 of the Copyright Act, which gives a non-exclusive set of four factors courts will consider in deciding whether a use is fair or not. These factors are

   1. the purpose and character of the use,
   2. the nature of the copyrighted work,
   3. the amount and substantiality of the portion used, and
   4. the effect of the use on the potential market for or value of the copyrighted work.

Of course, even with these factors, it is problematic and often unyielding to try to predict what uses a court will deem fair.

The case law is often quite unpredictable, and even contradictory about how it interprets these four factors.

[Marge_Innavera]

the Dave Cullen forum, www.davecullen.com, has issued a policy that prohibits open discussion of fan fiction and C & D due to legal concerns over copyright.  However, we at Bettermost do not believe that our site, nor our readers or members, should have any concern about the open discussion of copyright law and fan fiction, nor should anyone be discouraged from expressing an opinion about it.

When was this policy issued? The Daily Sheet publishes a review or feature about fanfiction weekly and in 17 months on that forum I've never heard such a policy mentioned.

It might also be worth mentioning that if S&S wanted to shut down all BBM fanfiction, they wouldn't be spending so much time contacting individual authors. A few words to LiveJournal and fanfiction.net and most of it would disappear within a week.

[louisev]

When was this policy issued? The Daily Sheet publishes a review or feature about fanfiction weekly and in 17 months on that forum I've never heard such a policy mentioned.

It might also be worth mentioning that if S&S wanted to shut down all BBM fanfiction, they wouldn't be spending so much time contacting individual authors. A few words to LiveJournal and fanfiction.net and most of it would disappear within a week.

I saw a message from LawGoddess over the weekend.  The policy is to forbid discussion of Cease and Desist orders and came from Dave.  And my C & D was sent to me and to Sixapart, the corporation that owns Livejournal.  According to the provisions of the Digital Millennium Copyright Act, the copyright holder must notify the perceived infringer (the individual LJ account holders).  If it receives a complaint, Livejournal simply passes it on anonymously and asks for a statement from the LJ user asking if they have violated any of the listed provisions.  It is then that the DCMA 'Safe Harbor' provision kicks in.  That is, it is between the parties in dispute (copyright holder making the complaint) and the LJ account holder, to resolve it between them.  If the LJ account holder disputes the claim, then it is between those two parties to duke it out. If the LJ account holder does not dispute the claim, he is then required to delete the pages or materials, or face account suspension.

According to its own policies, LJ does NOT delete anything from account holders' sites, and does not enter copyright disputes: it simply locks access if there is a violation of its policies or evidence of a violation of its policies, such as admission of copying, proof of copying, or of copyright infringement.