There's been a lot of talk about Kindle Worlds lately, and the OTW has received some questions about its legal implications. The OTW has long maintained that noncommercial fan fiction is fair use, and Amazon's new program does not change that in any way. It also doesn't change anything about the AO3's continued mission to provide a permanent platform for noncommercial fan fiction. (And don't forget, works on the AO3 are readable on the Kindle and other handheld platforms.)

So should fan writers put their works on Kindle Worlds? That is, of course, up to you. We believe that every author should make up their own mind about whether they want to publish their work on a particular platform. However, we also believe that every person should have a full understanding of the terms they are agreeing to by doing so. We've reviewed the information Amazon has made available to date, and have tried to explain the practical implications in this post.

In the professional publishing world, the terms of the contracts (agreements) between authors and publishers are heavily negotiated by the authors' agents. It appears that Amazon expects to use a "one size fits all" contract for Kindle Worlds. They haven't yet made that full contract available for potential submitters to read. But here are some terms of the Kindle Worlds contract that are mentioned on their page of which you should be aware:

• "Amazon Publishing will pay royalties to the rights holder for the World (we call them World Licensors) and to you."

  This means that whoever holds the copyright to the underlying work will be making money off your stories, as well. How much? We don't know.

• "Your standard royalty rate for works of at least 10,000 words will be 35% of net revenue."

  The key phrase to be aware of here is "net revenue." This means that your royalty will not be calculated on the price of the book (so, for a $1 book, 35 cents a copy), but rather on whatever's left after all of Amazon's costs, which are undefined, are accounted for. Depending on how aggressively Amazon defines its costs—and Hollywood, for example, is famous for calculating them very aggressively—that could mean you get little to nothing.

• "Amazon Publishing will acquire all rights to your new stories, including global publication rights, for the term of copyright."

  This appears to be intended to be an exclusive license on all forms of the story.

  What does "exclusive license" mean in this context? It means that no one else can make any other use of the story—including, quite possibly, you yourself. For that reason, it likely means that Amazon wouldn't let you include your story in both Kindle Worlds and a fandom site.

  Why does "all rights" matter? Well, what if Amazon likes the story and wants to commission a graphic novel adaptation of it? This language implies that they can do so…without any additional payments to you.

  Also, "for the term of copyright" means that Amazon claims the right to your work until many years after you've died--so for all practical purposes, forever. (Although you may, because of U.S. copyright law, be able to terminate this agreement after 35 years, but even that is a long time.) If, in the end, you decide you don't like the deal you're getting from Amazon, you may well not be able to withdraw your stories from Kindle Worlds, even if you are willing to give up any further royalty payments.

• "When you submit your story in a World, you are granting Amazon Publishing an exclusive license to the story and all the original elements you include in that story. This means that your story and all the new elements must stay within the applicable World. […] We will also give the World Licensor a license to use your new elements and incorporate them into other works without further compensation to you."

  So, not just Amazon, but the copyright holder to the underlying work, as well, has rights to what you create. Write the story that the underlying copyright holder wants to use as the basis for the summer blockbuster version of the story? You've donated it.

  Also, "your story and all the new elements must stay within the applicable World" implies that, if you happen to create a popular OC or other idea, you can't use it in other stories not published with Kindle Worlds.

Finally, there are a number of contract terms that are important in publishing but not yet discussed on the Kindle Worlds page. For instance, editorial control—Amazon has provided "Content Guidelines" for works, but there's a lot about them that's unclear. They include prohibitions on crossovers, on "offensive content," and on "offensive depictions of graphic sexual acts." It's hard to know exactly what these mean, and whose standards will apply. We cannot predict how consistently these restrictions will be enforced or how fan-friendly the enforcement process will be. It's also not clear whether Amazon will claim the right to do anything more than reject a work for failing to meet those guidelines (like edit it against your will). And the terms may change depending on what happens next and whether the program expands. There is also mention of a Cover Creator, but no mention of whether it will cost you anything to use it, or whether you will have permission to use images from the show in question. Presumably, more of these will become clear when Amazon publishes the actual contract.

As we said at the beginning, whether you want to participate in Kindle Worlds is up to you. If it meets your needs, great! We hope this post has helped you make up your mind in an informed fashion. Regardless, the OTW will continue to provide a platform and advocacy for noncommercial fanfiction.

• NYU's student newspaper decided to feature fanfiction with a particularly local angle -- fanfiction set on its campus. "Remember when you were waiting for your acceptance letter? Whether NYU was your dream school or just your safety, you’d catch yourself longing for the city, dreaming of the day when you’d leave your home for the magic of New York...You weren’t the only one dreaming. In fact, some would-be students have dedicated hundreds of pages to their NYU-centric fantasies. So focused are these writers’ efforts that NYU Fanfiction has swelled into its own thriving—if slightly inaccurate—genre."
• Australia's The Monthly article on erotic fan fiction nights is somewhat inaccurate as well. Author Linda Jaivin says, "My three co-readers had chosen to write about real people, a subgenre of fanfic that got its start along with the first boy bands." She also speculates that her concern regarding derivative works might be age related. "I raised the question of copyright and fanfic with Eddie Sharp, host of the erotic fan-fiction nights. He dismissed my concerns: “I can’t think of anyone my age” – he’s 30 – “who would be upset.” He characterised the “attitude shift” towards copyright as “a generational thing”.
• People have apparently been reading about fanfiction at 50,000 feet. Following a feature in American Airlines, Choose Your Own Adventure, KLM's inflight magazine, Holland Herald also featured a story on it and both had an OTW connection. In the former, board member emeritus Francesca Coppa attempted to clarify the ethos of fanfiction writing, something which was expressed much better in the latter piece. "For [writing workshop founder Lisa Friedman], fan fiction is a ‘marginalised’ genre in its infancy, comparable to the graphic novel before it found widespread acceptance via the publication of Art Spiegelman’s 1991 Holocaust memoir Maus. “In any case,” she observes, “it’s kind of amazing how much skill it takes to work within someone else’s parameters, to attune oneself so acutely in matters of style and character.” Joanne Harris agrees with the latter point, and draws a comparison to the traditions of fine art: “All young artists used to copy the Old Masters before they were allowed to develop their own style, and fan fiction is the modern equivalent,” she says."

What unexpected places have you found fanfiction in? Write about it in Fanlore! Contributions are welcome from all fans.

We want your suggestions! If you know of an essay, video, article, podcast, or link you think we should know about, comment on the most recent OTW Fannews post. Links are welcome in all languages! Submitting a link doesn't guarantee that it will be included in a roundup post, and inclusion of a link doesn't mean that it is endorsed by the OTW.

This is the last in a series of Q&A posts with Graham Reynolds, a Canadian copyright scholar from Schulich School of Law at Dalhousie University in Halifax, Nova Scotia, Canada. The Q&A focuses on Bill C-11, which went into effect near the end of 2012 and made some significant changes to Canada's Copyright Act, some of which influence the way fanworks are treated under Canadian law. The first post, in which Graham answered questions about the general contours of the law and about the law of "fair dealing", is available here. The second post, in which Graham answered questions about the probable effect of the law on fanfiction, fanart, and fanvids, is available here.

Today, Graham addresses Canadian "moral rights," trade-mark rights, and rights of personality; and what the new law means for fanwork creators outside of Canada. Graham explains that creators of noncommercial fanworks may face challenges under Canada's moral rights law, which encompasses rights to integrity and attribution. Creators of non-commercial fanworks are less likely to face problems from Canadian trade-mark laws, but the answer regarding rights of personality is more complicated. Graham also explains that the law may have some impact on fans who are located outside Canada, because the law applies to some Internet activities.

As before, these answers aren't legal advice, and if you need specific legal advice Graham (and we) advise you to consult with a lawyer and/or send a query to the OTW Legal Committee.

7. Now that this law has taken effect, what should non-commercial fanwork creators in Canada know about “moral rights”?

"Moral rights" are protected in Canada under the Copyright Act (see, in particular, ss. 14.1, 14.2, 17.1, 17.2, 28.1, 28.2). Bill C-11 expanded moral rights protection under the Copyright Act by granting performers moral rights in their performances. Moral rights in Canada cannot be assigned (ss. 14.1(2), 17.1(2)). They last for the same term as the period of copyright in the relevant copyrighted expression (ss. 14.2(1), 17.2(1)) (generally the life of the author plus fifty years for works, and fifty years for performers’ performances).

Two primary moral rights are protected under the Copyright Act: the right of integrity (s. 28.2) and the right of attribution (ss. 14.1, 17.1). The right of integrity bars the distortion, mutilation, or modification of a work, or the use of a work in association with a product, service, cause, or institution, when that use or distortion would harm the creator's honour or reputation. The right of attribution concerns the right of a creator to be associated with his or her work.

Section 28.2 of the Copyright Act sets out the circumstances in which the right of integrity will be infringed:

28.2 (1) The author’s or performer’s right to the integrity of a work or performer’s performance is infringed only if the work or the performance is, to the prejudice of its author’s or performer’s honour or reputation,

(a) distorted, mutilated or otherwise modified; or

(b) used in association with a product, service, cause or institution.

(2) In the case of a painting, sculpture or engraving, the prejudice referred to in subsection (1) shall be deemed to have occurred as a result of any distortion, mutilation or other modification of the work.

(3) For the purposes of this section, (a) a change in the location of a work, the physical means by which a work is exposed or the physical structure containing a work, or (b) steps taken in good faith to restore or preserve the work shall not, by that act alone, constitute a distortion, mutilation or other modification of the work.

Thus, fanworks that distort, mutilate, or otherwise modify a work or performance, or fanworks that associate works or performances with products, services, causes, or institutions, may run afoul of Canada's moral rights laws if they harm the author's or performer's honour or reputation. Canadian courts have indicated that the test for whether a distortion, mutilation, or modification is prejudicial to the author or performer’s honour or reputation is subjective-objective (see, for instance, Prise de Parole Inc. v. Guérin, Éditeur Ltée, (1995) 66 C.P.R. (3d) 257). That is to say, the author or performer has to believe that the distortion, etc. is prejudicial to their honour or reputation. This subjective belief must be supported by objective criteria.

The moral right of attribution gives authors and performers the right, “where [or if it is] reasonable in the circumstances, to be associated with the work [or with the performance] as its author [or as its performer] by name or under a pseudonym and the right to remain anonymous” (ss. 14.1(1) and 17.1(1), combined).

8. Now that this law has taken effect, do non-commercial fanwork creators have to think about non-copyright doctrines like trade-mark law and misappropriation of personality?

Canadian courts have interpreted the Trade-marks Act, R.S.C., 1985, c. T-13 as indicating that in order to infringe a trade-mark under ss. 19, 20, and 22 of the Act, there must be an “element of commercial use” (see, for instance, British Columbia Automobile Assn. v. Office and Professional Employees’ International Union, Local 378, 2001 BCSC 156, at para. 152). On the basis of these decisions, it would appear that the creation of non-commercial fanwork would not infringe these sections of the Trade-marks Act (although questions could be raised as to what constitutes “commercial use”).

Many registered trade-marks, however, are also protected by copyright. Unlike Canadian trade-mark law, the fact that a use of a copyrighted work is non-commercial is not, in itself, a defence to copyright infringement in Canada.

Canadian courts have articulated a common law tort of misappropriation of personality. The case that has discussed this tort in the most depth is Gould Estate v. Stoddart Publishing Co. (1996), 30 O.R. (3d) 520 (Ontario Court of Justice, Lederman J.) (Gould affirmed on other grounds by the Court of Appeal for Ontario ((1998), 39 O.R. (3d) 545); application for leave to appeal to the SCC dismissed ((1998) S.C.C.A. No. 373)).

In Gould, Lederman J. discussed the need to “[place] limits on the tort of appropriation of personality” due, in part, to freedom of expression considerations (para. 18). Lederman J. stated that:

"In the end then, and perhaps at the risk of oversimplifying, it seems that the courts have drawn a 'sales vs. subject' distinction. Sales constitute commercial exploitation and invoke the tort of appropriation of personality. The identity of the celebrity is merely being used in some fashion. The activity cannot be said to be about the celebrity. This is in contrast to situations in which the celebrity is the actual subject of the work or enterprise, with biographies perhaps being the clearest example. These activities would not be within the ambit of the tort. To take a more concrete example, in endorsement situations, posters and board games, the essence of the activity is not the celebrity. It is the use of some attributes of the celebrity for another purpose. Biographies, other books, plays, and satirical skits are by their nature different. The subject of the activity is the celebrity and the work is an attempt to provide some insights about that celebrity."

Given this statement, there is a strong likelihood that non-commercial fanwork creators seeking to include (or feature) celebrities in their works would be seen by a Canadian court as falling on the “subject” side of the sales vs. subject distinction described by Lederman J.

However, several Canadian provinces (British Columbia, Saskatchewan, Manitoba, and Newfoundland and Labrador) have passed privacy acts that provide varying degrees of protection for personality rights. Québec also provides protection for personality rights through the Civil Code of Québec. Creators of non-commercial fanwork seeking to include or feature individuals, living or dead, in their works may wish to consult these acts.

9. What does this law mean for people who live outside of Canada?

Copyright laws are national in scope (although their development and interpretation may be informed by international treaties and legislation and case law from other jurisdictions). Canada’s Copyright Act governs copyright-related matters in Canada. As a result, it has a particular relevance to people who live inside Canada (and who engage on a regular basis with copyrighted works).

For people that live outside of Canada, however, the Canadian Copyright Act is still relevant in several ways. For instance, works created in countries other than Canada are protected by copyright in Canada provided certain conditions are satisfied (see Copyright Act, s. 5). Individuals who create fanwork in countries other than Canada may want to consult the Canadian Copyright Act to find out the scope of their rights in Canada.

Another instance where Canadian copyright laws may be relevant for individuals who live outside of Canada relates to online communications. In Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers, 2004 SCC 45, Binnie J., writing for the majority of the SCC, stated that the Copyright Act applies to international Internet transmissions provided that there is a “real and substantial connection to Canada” (60). Binnie J. states that:

61 In terms of the Internet, relevant connecting factors would include the situs of the content provider, the host server, the intermediaries and the end user. The weight to be given to any particular factor will vary with the circumstances and the nature of the dispute.
…

63 Generally speaking, this Court has recognized, as a sufficient “connection” for taking jurisdiction, situations where Canada is the country of transmission (Libman, supra) or the country of reception (Liberty Net, supra). This jurisdictional posture is consistent with international copyright practice.

It is therefore possible (although perhaps unlikely) that an individual living outside of Canada could be sued in Canada for copyright infringement (based on Canada’s Copyright Act) with respect to acts committed outside of Canada.

We hope you've enjoyed this foray into Canadian law. For the text of the new law, see Bill C-11. For the full text of the Copyright Act, as amended, see the Canadian Copyright Act. If you find yourself in need of fanwork-related legal advice, feel free to contact the OTW Legal Committee.

• On the Media aired an episode on the Past, Present and Future of Ownership, which included a number of good stories, including discussion of the art piece 'DRM Chair' "that collapses after just eight uses." Host Brooke Gladstone concluded with an observation on the origins of the word 'property.' "Eight hundred years ago or so, property’s meaning was pretty much related to the essential nature of something, as in it’s the property of water to conform to the shape of the vessel it’s in. The fact is property didn’t come to mean possession until the 17th century...Now our world runs on property...Once we dwelled in a brick-and-mortar world. Now, as poet Kenneth Goldsmith observed, we swim in a digital ocean. The only certainty is that in such a fluid situation, 20 years hence, property will not mean what it means today." (Transcripts available)
• Among the people interviewed in the episode was OTW Legal Committee member, Rebecca Tushnet about the legal aspects of fanfiction. "There are such things as commercial fair uses. When 'The Daily Show' runs clips from the news and comments on them, that's fair use. And it's possible to have fictional fair uses, as well. However, the bar is higher and it really would be a case-by-case determination. For example there is a preacher who wrote a version of Harry Potter in which Harry Potter came to Jesus and renounced magic because it was evil. Whether or not that's good, it clearly does have a critical message that comments on the original and is something that would never be part of the original. And that makes it have a good case for fair use, even if he then solicits donations or even sells it for a buck." (Transcript available)
• Another piece about fanfiction was posted on the site by Laura Mayer, discussing how it can emerge from episode recaps of reality shows. "Hype has been swirling around fan fiction for the past few months – the idea of hoards of super-fans, sitting in their homes, solitarily fleshing out the world and the characters from their beloved fiction. But it’s not just pure fiction that gets this treatment. Since there’s so much reality television on the dial, reality TV has been getting the fan fiction treatment, too." However, her examples all come from media sources, entirely ignoring the very long history of RPF. "This isn’t a new thing. Back in the days of 2010, Richard Lawson became the father of reality television fan fiction. While at Gawker he wrote recap upon recap of the Real Housewives of New York. Each post covered the basic details of the episode, sure. But what made these recaps so readable was the fantastical, borderline science-fiction, turns they took."

If you have your own RPF fandom tales to tell, write about them in Fanlore! Contributions are welcome from all fans.

We want your suggestions! If you know of an essay, video, article, podcast, or link you think we should know about, comment on the most recent OTW Fannews post. Links are welcome in all languages! Submitting a link doesn't guarantee that it will be included in a roundup post, and inclusion of a link doesn't mean that it is endorsed by the OTW.