Intellectual Property

  • OTW Joins Save The Link

    Опубликовал(а) Kiri Van Santen в среду, 29 июля 2015 - 3:56pm
    Тип новости:

    Banner by Diane with the outlines of a man and woman speaking with word bubbles, one of which has the OTW logo and the other which says 'OTW Announcement'

    The OTW is proud to join the Save The Link campaign. The campaign, led by Open Media International, stands for the proposition that linking is the foundation of the Web and is essential to freedom of expression online. The OTW, together with the other Save the Link members, believe it is wrong to censor links to content or otherwise penalize services for utilizing hyperlinks.

    The Save the Link campaign is a global response to attempts in various places around the world to block sites, block links, and limit the way people can link to news sites. Of particular relevance to to fans and fan culture are recent attempts in the European Union and Australia to make websites liable for the content on the other end of every single link posted using their platform, and to legally block websites that even do as little as linking to infringing content. We are glad to be part of a group of vigilant watchers who will help us inform the public about such reactionary policies.

    To find out more, visit the Save the Link Campaign at https://savethelink.org/ and watch its video on YouTube.

  • OTW Legal Staffers Participate in SDCC "Fandom is My Fandom" Panel

    Опубликовал(а) Janita Burgess в пятницу, 24 июля 2015 - 5:18pm
    Тип новости:

    SDCC Fandom is My Fandom panelists.

    At this year's San Diego Comic Con (SDCC), OTW Legal Chair Betsy Rosenblatt participated in the Fandom is My Fandom panel, moderated by Legal's Heidi Tandy.

    Betsy and Heidi were joined by Amanda Brennan (Community and Content Tumblarian), Flourish Klink (Chaotic Good, Inc., Transmedia Producer for East Los High), Meredith Levine (Fanthropologist, ZEFR), Aron Levitz (Head of Business Development, WattPad), Elizabeth Minkel (Writer, New Statesman/The Millions), and Missyjack (aka Jules) (Founder, Supernatural Wiki).

    A video of the panel is now available for public viewing.

    The panel discussed how fandom has changed now that fanworks are in the spotlight on social media and mainstream news and are being acknowledged by the companies that create and distribute source material. The panelists reflected on how advances in technology and improved understanding in copyright law, particularly in the area of fair use, have increased fandom's public reach and placed fanworks into the public consciousness.

    Panelists noted that fandom is even inspiring developments in law: in 2013, Holmesian scholar Leslie Klinger and author Laurie R. King received a "cease and desist" letter from the Conan Doyle Estate, ahead of the publication of their second anthology of stories inspired by the Holmes canon. Klinger successfully sued the Estate, claiming the copyright had expired on all of the story elements included in the anthology. Because of Klinger, all but the last ten Holmes stories are now officially part of the public domain, allowing fanfiction authors to publish and even sell works based on the majority of Conan Doyle's Sherlock Holmes stories and novels.

    Many fanwork creators prefer to stay non-commercial, though, whether to be better able connect directly with their audience; to use fanworks as a "training ground" for skills that can be used professionally; to avoid legal risks; or simply because they prefer to participate in a gift and generosity based economy and community.

    The panel pointed out that the companies behind commercial works are increasingly interested in fandom and fanworks, sometimes even offering fanwork contests. Because of this, many fanwork creators no longer feel the need to hide their work from "the powers that be" and can enjoy participating in these contests, provided that they are able choose what and when to share. Companies may use these contests both as a way to reward fans for their enthusiasm and as an additional source of metrics to gauge consumer engagement. The panel suggested that, while fans often appreciate nods to fanwork in their favourite source material (e.g. Supernatural meta episodes, characters referring to tumblr, etc.), they also want space to engage in fandoms without needing acknowledgement or approval from creators of source material.

    The increased visibility of fanwork has allowed mainstream creators to acknowledge their fannish pasts. As fanwork becomes better understood by people outside of the fandom community, we hope that stigma will decrease, and that the myriad forms of fannish engagement and creation will be met with the appreciation and respect they have always deserved.

  • OTW Joins Re:Create Coalition

    Опубликовал(а) Kiri Van Santen в среду, 8 июля 2015 - 4:23pm
    Тип новости:

    Banner by Diane with the outlines of a man and woman speaking with word bubbles, one of which has the OTW logo and the other which says 'OTW Announcement'

    For years, we at the OTW have been fighting for copyright laws that make room for fans to express themselves through fanworks. We haven't been alone in this fight: over the years, we've partnered with groups like the Electronic Frontier Foundation, Public Knowledge, the Center for Democracy and Technology, the American Library Association, and others to argue that the law should encourage a wide range of creation and expression, including the fair use of material created by others.

    Now, we're officially coming together with a network of organizations that believe, like we do, that U.S. copyright law should reflect the diversity of the creators, innovators, and consumers who make, use, remake, and reuse creative expression; that U.S. copyright law should not stand in the way of free expression worldwide; and that fair use is a vital component of a balanced copyright law. In March, we joined members of this group in sending a letter to the U.S. Congress encouraging balanced copyright policies -- and we're very happy to continue that work with a great group of partners.

    “Fanworks serve a unique and important role in our society and must be protected. Fair use is a critical right that permits the public to use portions of copyrighted material without permission, under certain circumstances, from the copyright owner. Whether it be an adapted story with our favorite characters or an app for our phones, fair use makes creativity and innovation possible. Re:Create is excited to welcome OTW to the coalition and we look forward to all that we will accomplish together,” said Tina Pelkey, a spokesperson for Re:Create.

    Find out more about the Re:Create coalition and its work at its site, and watch this space for news of coalition activities and opportunities.

  • OTW Joins Fanworks Are Fair Use

    Опубликовал(а) Claudia Rebaza в четверг, 2 июля 2015 - 4:11pm
    Тип новости:

    Banner by Erin of a spotlight on an OTW logo with the words 'Spotlight on Legal Issues'

    Our friends at the Harry Potter Alliance (HPA) have launched a new project, one that goes to the core of our mission here at the OTW and the Archive of Our Own. Fanworks Are Fair Use is a community of fan creators, readers, artists, and enthusiasts who are committed to the protection and preservation of fair use law. The HPA's goal is in line with ours here at the OTW; since 2007 we have worked to eliminate negative stigmas about fanfiction, fan art, and other fan creations and support those works and their creators in the eyes of mainstream media.

    We are pleased to come onboard and work with the HPA on this important issue.

    One of the principles of the OTW is that fanworks are legal under U.S. copyright law; earlier this year, we focused on fair use as part of Fair Use Week- the OTW FAQ explains how fair use is a lawful use of a third party's copyright, and how it protects free expression by giving people the legal right to use copyrighted material in certain ways without getting permission or paying.

    As the HPA writes, "fan works add value to the source materials on which they’re based" and "help shape and energize the culture that surrounds popular narratives."

    Join us in supporting the HPA's Fan Works Are Fair Use community - they'll be sharing information and resources throughout the year on how all of us can make sure that fair use continues to be a lawful use of copyrights. On Twitter, tumblr, Facebook and other social media sites, you can share your own #FanworksTaughtMe story with that hashtag for the project to reblog, retweet or showcase. And if you're attending San Diego Comic Con, join the Legal Committee's Betsy and Heidi on Thursday at Fandom Is Our Fandom, and Heidi and the HPA's Jack Bird on Sunday at the Potterverse Fandom Panel to learn more about #FanworksAreFairUse.

  • OTW Fannews: Fitting Tributes

    Опубликовал(а) Claudia Rebaza во вторник, 30 июня 2015 - 4:08pm
    Тип новости:

    Banner by Soy Alex of three trophy cups with the title 'OTW Fannews: Fitting Tributes'

    • The OTW is thrilled to announce that past Legal Committee chair and current Legal staffer, Rebecca Tushnet, is being honored by Public Knowledge. She will be one of the recipients of their 12th Annual IP3 Award. The ceremony will be held in Washington D.C. on September 24. "The IP3 Awards are a special occasion to honor those who have made significant contributions in the 3 areas of IP: Intellectual Property, Information Policy and Internet Protocol."
    • A nominee for the Creative Blogger Award recently posted to share some thoughts about writing. "I find inspiration from things I love. Like many people of my generation, my first taste in writing for a public forum came from fanfiction. I still write fanfiction now. The things I love such as Jane Austen, music, travelling, and Buffy inspire me to write poetry, fanfiction, or even my blog entries. If you want to find inspiration, start with what you love. And yes, I consider fanfiction to be creative."
    • The Reda Report summed up recent developments in the European Parliament regarding copyright. "For the first time, the Parliament asks for minimum standards for the rights of the public, which are enshrined in a list of exceptions to copyright that up to now have been completely optional for the Member States to implement. The report stresses that the use of these exceptions may not be hindered by restrictive contracts and that DRM may not restrict your right to make a private copy of legally acquired content." Of particular interest to OTW News readers who answered our call for comments, mention of the response total was cut from the copyright evaluation report. The Commission received 9,500 replies, 58.7% of which were from end users.
    • The Arizona Republic featured discussion of a play focusing on fandom. "The show opens Saturday, June 13, at the Phoenix Center for the Arts, and admission is free for anyone who comes dressed as a favorite character from movies, comics and books." Some of the performers discussed the importance of fandom. "All have their own connections to fan culture, including Sullivan, who grew up watching 'Buffy the Vampire Slayer' and wrote her first fan fiction as a crossover between the 'Sweet Valley High' and 'The Baby-Sitters Club' youth-novel franchises. Now, she says, 'I think I am starting to become a fangirl for fan culture, because talking with anyone about what they are passionate about is one of the greatest conversations you can have. It really gives you an insight into who they are.'"

    What recognitions have you seen fans and fanworks receive? 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!

  • OTW Fannews: Fandom Pushback

    Опубликовал(а) Kelly Ribeiro в пятницу, 12 июня 2015 - 5:04pm
    Тип новости:

    Star Trek

    • Some months ago, OTW Legal submitted an amicus brief in the case of Garcia v Google. Now the Ninth Circuit has reversed a panel opinion granting an injunction against Google, on the ground that an actor’s performance was not separately protected by copyright and that the First Amendment should have precluded an injunction. This is a great result for free speech on the internet!
    • In other legal news impacting fans and fandom The Telegraph revealed a proposal for police monitoring of fandom during the late 1990s. "It has emerged that Scotland Yard kept a secret dossier on Star Trek, The X-Files, and other US sci fi shows amid fears that British fans would go mad and kill themselves, turn against society or start a weird cult. The American TV shows Roswell and Dark Skies and the film The Lawnmower Man were also monitored to protect the country from rioting and cyber attacks."
    • The police have hardly been the only ones to mischaracterize fannish practices, as a Gizmodo article assigned credit/blame to X-Files fans for changing fandom. The entertainment industry was slower to change. "Even though the show’s crew was largely interested in the online fandoms, 20th Century Fox took a far harder stance, especially towards fan sites sharing unauthorized images of Mulder and Scully. Fans organized, fighting for their right to post artwork and stories about their favorite characters. Without pushback, the studio could’ve stymied the fan fiction community— as well as remix culture, which is also sometimes attacked as derivative— before it had a chance to take off."
    • On the other hand, Quartz singled out women's continuing contributions to fandom. "Women make up half the human race—including their perspectives makes for richer, better stories. But more than that, the presence of women in fandoms serves as a constant counterpoint to the dreary stereotype of sexless, gross guys huddling in their mothers’ basements. Geeks were never really like that to begin with: all sorts of people have always loved Dr. Who and Mr. Spock and Wonder Woman. The greater visibility of fangirls helps geekdom in general, by showing that there’s no one way to be a fan."

    When have you seen fans push back? Write about those events 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 Fannews post, and inclusion of a link doesn't mean that it is endorsed by the OTW.

  • OTW Fannews: Doing Your Part

    Опубликовал(а) Kelly Ribeiro во вторник, 12 мая 2015 - 4:49pm
    Тип новости:

    Doing Your Part

    • NPR was among some reporting on a new Russian policy that began banning some memes. "In effect it really bans all memes using celebrities. Insofar as the language of this announcement, which was posted on VKontakte (ph) - which is the Russian equivalent of Facebook - they said that any images that use famous people's identities, or images, they're against the law if they take that image out of context of that person's reputation." However, "this decision is totally unenforceable. The entire point is not to purge the Internet of bad things. It's to make people online afraid of getting in trouble."
    • The New York Times warned that Net Neutrality progress in the U.S. didn't mean that it wasn't under threat elsewhere. "Last month, the European Council...adopted a proposal that would allow telecommunications companies to charge Internet businesses like Netflix and Google fees to deliver their videos and other content to users faster than could smaller companies that cannot afford to pay for preferential treatment. In India, the country’s telecommunications regulator asked for comments on whether it should adopt a provision similar to what Europe is considering. The regulator also asked if telecom companies should be able to charge users extra fees for services like YouTube, WhatsApp and Skype on top of the fees people already pay for access to the Internet."
    • The OTW has petitioned for a renewal of a DMCA exemption for fan video makers. Our Legal team has been asking that fans write in about their need for high quality source from sources that are only available on Blu-Ray; or sources from places like iTunes or Amazon when that's necessary to make a timely vid to participate in an ongoing fannish conversation. OTW Staffers will be testifying before the Copyright Office at the end of May to extend their rights to break encryption to Blu-Ray, as well as maintain them for DVD and streaming sources.

    What efforts have you seen fans making to oppose restrictive laws? 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 Fannews post, and inclusion of a link doesn't mean that it is endorsed by the OTW.

  • OTW Fannews: Global Rights

    Опубликовал(а) thatwasjustadream в воскресенье, 12 апреля 2015 - 4:25pm
    Тип новости:

    image of a seated person with arms on a table, one hand holding a small globe with the words OTW Fannews Global Rights over the image

    • The EFF reported on Japanese fans and organizations protesting the terms of the Trans-Pacific Partnership (TPP). "In addition to opposing lengthy copyright terms, the anime and fan-art community are also concerned about the TPP's criminal enforcement provisions. There is a particular section that says that 'competent authorities may act upon their own initiative to initiate a legal action without the need for a formal complaint' by the copyright holder. The fear is that this would lead to a major crackdown on derivative works, including written or drawn fan fiction, recorded music covers of songs, or cosplayers, who may upload photos of themselves dressed as characters."
    • Le Devoir.com wrote about the origins of fanfiction. "To understand the phenomenon of fanfiction...begin by remixing the famous list of Daniel Pennac's "The Rights of the Reader," which will become those of "the consumer." Literature becomes just a commodity, and it's permissible to do whatever we want. From one chapter to another, the reader is free to react, to have equal exchanges with the author, to make special demands, or even to write his own fanfiction." (Article in French).
    • lesen.net focused more on legal issues than the rights of the author. "The law is also problematic when it comes to the inventions of fanfic writers. There are stories where, in addition to well-known people, original characters occur in crossover stories which combine different book universes. Behind the new characters and the stories themselves are original, but unprotected, ideas. Original characters outside of the accepted world in principle belong to the rights-holders of the (story's) world. Meanwhile, within the fanfiction community virtually all characters and plots can be easily transferred and plagiarized." (Article in German).
    • The Washington Post also discussed appropriation in art using a variety of different examples. "There are no perfect, lawyerly answers to this. But general rules apply: The artist must add something — an idea, a nuance, a criticism — to the work he or she appropriates; it mustn’t be done simply to deceive; and no one should prosper by borrowing if it comes at the expense of another artist."

    Where have you seen fans standing up for their rights? 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 Fannews post, and inclusion of a link doesn't mean that it is endorsed by the OTW.

  • OTW Fannews: Building and Re-Building

    Опубликовал(а) thatwasjustadream в четверг, 2 апреля 2015 - 9:39pm
    Тип новости:

    OTW Fannews Building and Rebuilding graphic by Rachel G with an image of the YouTube logo being broken apart

    • The Prince Albert Daily Herald wrote about a fanfiction author whose path to publication involved plagiarism. "Another series she’s working on centres on the fictional Red Rebels motorcycle club, which was inspired by the television series Sons of Anarchy. It started off as a Sons of Anarchy fan fiction novel she wrote and was stolen by someone online who stripped it of the television references and tried to pass it off as an original novel of their own. The rip-off garnered some positive reviews, so Breadner decided to give motorcycle club fiction a try."
    • Rosalyn Hunter wrote about her experience with fan video takedowns. "I posted the work on You Tube and others were able to find it. They gave me comments and encouragement to go on and try again. I had begun the learning process. I was pleased, but this positive experience was not to continue. My next videos were found to have content matching commercial works, and so they were either blocked worldwide, or removed entirely...I created a video and posted it as a private work. This work too received a content warning. Others were not able to view and comment on the work...I was told in one case that I could erase the music and pick a piece from their music library, but the images were integrated with the music. To remove the music would upset the unity of the work so that it would make no sense."
    • The Asian Age reported on expected takedowns. "[A] massive crackdown by Google on Blogger, its popular global blogging community, will effectively ban all ‘mature’ creative content from the site." As of 2012, Google made it easier to censor Blogger content by country. "Adult fanfiction writer Khyati Gupta, who has been writing an ongoing work-in-progess of erotica for almost six months now, shares...'To me, a blog always meant a space where I could be myself, express myself freely and share my creative musings with a host of people who don’t personally know me and are therefore better placed to give me completely objective feedback. It was that one space where I didn’t have to restrain my imagination. Erotica is a fairly marginalised genre in India as far as paperbacks go.”
    • By comparison the Apocalypse Weird franchise centers on collaboration. "The creative collaboration on Apocalypse Weird is scheduled to include 20 authors, with two new titles releasing each month. There are also plans for a fan-fiction thread, in which readers will be able to expand on the stories of their favourite characters with the chance of their contributions becoming canon in the Apocalypse Weird universe. There’s an impressive level of creativity and ambition in this indie publishing collaboration, something too often missing from mainstream publishing today."

    What examples of takedowns or collaboration have you experienced? 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 Fannews post, and inclusion of a link doesn't mean that it is endorsed by the OTW.

  • 10 Fair Use Misconceptions

    Опубликовал(а) Kiri Van Santen в среду, 25 февраля 2015 - 7:29pm
    Тип новости:

    This is Fair Use Week 2015 in the U.S. which takes place from February 23-27. The event is held to raise public awareness of the importance the rights of individuals, nonprofits like schools and libraries, and even corporations like Google and The New York Times have when it comes to copyright. Today we're following up on yesterday's post which explained how Fair Use works in the U.S. - and we're looking at some misconceptions about Fair Use.

    Fair Use is a kind of infringement, right?

    Nope! Fair Use is a lawful use of copyright. That's what the law says, and it's also what the Northern District of California said in the case of Lenz v. Universal Music back in 2008. If your new work is a Fair Use of someone's copyrighted work, you're not infringing on that work. Also, fair use isn't a license; the whole point is that you don't need the copyright owner's permission. (Just imagine if a copyright owner had to grant permission every time someone created a parody that was critical of the original - they probably wouldn't!)

    If a site has ads, nothing I put on there can be Fair Use, right?

    Nope! For two reasons. First, while many hosting sites are moneymaking ventures, that doesn't mean that the people posting their works there are engaged in commercial use. People who post their fanworks on YouTube aren't making money from those works - if anyone is, it's YouTube or their advertisers. (But as a reminder, the AO3 is entirely nonprofit and noncommercial, and is dedicated to providing a platform for fanworks with no ads.)

    Second, even if someone is engaged in a moneymaking venture, they still might be engaged in Fair Use. While the commercial aspects of a project are one of the factors a court looks at when determining if a use is Fair Use, it's not the only factor. So while the Organization for Transformative Works is a nonprofit, and our legal advocacy team focuses on noncommercial works, we do want to note that commercial works can also be noninfringing because of Fair Use.

    As noted copyright expert Judge Pierre Leval of the Second Circuit stated last year in arguments regarding whether Google Books' scans of entire books was a Fair Use, “The classic fair use cases are commercial. I would be surprised if [one is] going to win by pleading that Google, like the New York Times, is a profit-making enterprise.” In fact, US courts have found many commercial uses to be fair. One example of a commercial work found to be fair use is the (commercially published) book The Wind Done Gone, which retold the story of Gone with the Wind from the perspective of the slave characters. A more recent example was addressed in 2013 in the case of Cariou v. Prince; in that case, artist Richard Prince purchased a book of photos by Patrick Cariou, and painted over the photographs, selling his "appropriative" art at prices in the many thousands of dollars. (In fact, some sold for two million dollars or more.) The court found that most of Prince's works were Fair Use.

    Fair Use only covers uses that criticize or comment on the original copyrighted work, right?

    Nope! Although criticism and commentary are among the types of fair use described by the statute, U.S. courts have held that a work need not comment on the original in order to be transformative. In Cariou v. Prince, the court said that "a secondary work may constitute a fair use even if it serves some purpose other than ... criticism, comment, news reporting, teaching, scholarship, and research." In other words, Prince's art was so transformative of Cariou's photographs that Prince's follow-on works were noninfringing because of the Fair Use doctrine. Cases about mass digitization projects like Google Book Search have found transformativeness even when copyrighted works are copied into a database without any commentary or criticism. In the case of Author's Guild v. Google, for example, the court explained that Google Book Search was transformative because it transformed the purpose of the digitized books--for example, by allowing large-scale data searching, preserving out-of-print books, and making books available for print-disabled users--even without transforming their meaning.

    So Fair Use only applies to transformative works, right?

    Nope! Fair Use allows newspapers to quote books, films, and yes, fanworks, for purposes of news reporting, commentary and criticism. Fair Use also covers certain uses for educational purposes, like when teachers assign little kids to write their own ending to a tv show or film, or show clips from a film in a media analysis class, or make copies of a page or two of a book for classroom use. Fair Use is one reason why the backgrounds of films and tv shows can include book covers, and why songs on the radio can mention copyrighted comic book characters. It doesn't cover a university tv station showing films over its network during finals, though.

    My use will be Fair Use if I use a disclaimer identifying the original creator and saying I don't own it, right?

    Not necessarily! In fact, attribution isn't part of the Fair Use analysis. So something that's Fair Use will be Fair Use regardless of whether it has a disclaimer - and a disclaimer won't help a copy that isn't Fair Use (like uploading an entire copyrighted movie for others to share and watch, see below). That doesn't mean that fans should stop putting disclaimers on their fanworks - it's a good ethical practice, and it honors those who created the original works that fans love so much - but it isn't something courts are likely to consider in determining whether something is Fair Use. Also, though you definitely don't need to add a note to your work about it being Fair Use (remember, it's not a license!), it never hurts to explain ahead of time why you think it might be.

    If a site that's not as enlightened as AO3 takes my fanworks down, there's nothing I can do, right?

    Nope! Most sites that operate in the US have what's called a Digital Millennium Copyright Act (DMCA) policy - the AO3 has one, too. Generally, they require a copyright claimant who wants someone else's work to be taken down to submit a pledge that they own the copyright in a specific work, and their copyright in that work has been infringed. Some courts have held that copyright owners are supposed to conduct a Fair Use analysis before issuing a takedown notice, but oftentimes, they don't bother, or they use a rigid matrix. And sometimes sites don't conduct that Fair Use analysis either--they just take the content down. So the Copyright Act also provides for a counter-notice process (17 U.S.C. § 512(g)) where the person whose work was taken down has a chance to demonstrate to the site that the work is noninfringing - usually because it's Fair Use. At that point, the claimant can argue to the site that Fair Use doesn't apply, or realize that huh, it does! In reality, the final decision usually rests with the site or server company hosting the content, but the counternotice process at least provides for an opportunity to respond to someone else's copyright claim. And if you get a takedown notice for a noncommercial transformative work and want help understanding the counter-notice process, you can get in touch with OTW's legal team.

    Fair Use means I can upload films and tv shows and songs and entire books for others to download in their entirety, right?

    Nope! Or, at least, most of the time, nope. There are some exceptions, such as where the content is in the public domain (see below), or is the subject of a Creative Commons license or another license for a specific use like the kind we have here on AO3 that allows readers to download stories onto their e-readers, accessible via a password-and-license process for educational or other specific purposes. (Or if you're Google, creating Google Book Search, as we've described above--but you're probably not!) If you've done something transformative with it before you share your follow-on work, it may be Fair Use, but putting someone else's film or album or novel or webisode onto a torrent or server usually doesn't qualify. (But you're not the only one with this question; Mark Ruffalo wondered about it last year, too.)

    Fair Use is some newfangled thing made up by fandom lawyers and fanfic writers who want to play with someone else's characters and stories, right?

    Nope! Fair use has been part of the U.S. Copyright statute for many decades, and existed in the common law long before that. In a case called Folsom v. Marsh in 1841, Justice Story set out a summary that's been quoted, cited, paraphrased and made the subject of follow-on works for over 170 years: "We must often . . . look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work."

    Fair Use is why I can use things in the public domain, right?

    Nope. Works that were originally published in the U.S. before 1923 and works created by the U.S. Government (and a few more categories, but those two are the most common) are in what's known as the "public domain," which means that they aren't protected by copyright law at all. Films, songs, stories, plays, poems, essays, art, books and other works in the public domain can be used by anyone for any purpose because they're not protected by copyright. It's fair to use them, but follow-on works inspired by things in the public domain aren't literally Fair Use situations. As the Seventh Circuit said last summer in Klinger v. Conan Doyle Estate, "When a story falls into the public domain, story elements—including characters covered by the expired copyright—become fair game for follow-on authors."

    Fair Use is a worldwide concept, right?

    Alas, nope. Fair Use is a U.S. doctrine, although a number of other countries have similar laws. If you're outside the U.S., the law that applies to you may be significantly different than what we've described here. Regardless, no matter where you are, Fair Use law matters to you if you're posting your works on U.S. sites or if you're using source material owned by U.S. copyright holders.

    We're here to help! If you have questions about fair use and fanworks, feel free to contact our legal team.

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