Thread by @bessyboo, Obviously the original take here is so cold it came from a [...]

Obviously the original take here is so cold it came from a wooly mammoth’s frozen shit, but there’s a lot of common fandom misconceptions about how copyright + profit + fair use work/interact with each other in the replies (on both Twitter & tumblr), so: A THREAD https://twitter.com/kraygaio/status/1254110213944168448">https://twitter.com/kraygaio/...

https://twitter.com/kraygaio/status/1254110213944168448

First up, I see this misconception in fandom all the time: “If you’re not making a profit that makes it fair use/they can’t sue you.” (And the corollary, “If you’re making a profit on fanworks that makes it copyright infringement.”)

This is definitively not true.

The only way to determine if a work is LEGALLY fair use is technically to have a judge rule on a particular allegedly infringing work on a case-by-case basis. If a company is especially bothered for some reason by a fic you wrote about their intellectual property…

…then the fact that you posted it for free on a non-profit website that ALSO isn’t making any money off of it (AO3) doesn’t mean they can’t sue you for copyright infringement—they very much can. But they’re FACTORS in your favor when determining whether your work is fair use.

So how DO you actually determine fair use? There‘s a specific legal four factor test that is used:

• the purpose & character of your use
• the nature of the copyrighted work
• the amount & substantiality of the portion taken
• the effect of the use upon the potential market

So wtf does THAT all mean? Let’s break down how each of these generally applies to fanworks.

“The purpose and character of your use” is one of the two big factors everyone’s familiar with, because it’s basically “what are you using it for, and is your use transformative?”

For the vast majority of fanworks, the answer to “what are you using it for” is “entertainment,” HOWEVER! The fair use doctrine SPECIFICALLY says, “the fair use of a copyrighted work … for purposes such as criticism, comment … is not an infringement of copyright.”

Many fanworks can CERTAINLY serve as commentary and/or criticism of the canon/pop culture/politics/the world we live in/etc; if so, that’s most definitely a factor in your favor. There’s debate amongst fandom legal nerds as to what actually qualifies for this (could a Rogue One…

…coffeeshop AU be considered commentary because you’re taking a bunch of assumed-straight canon war heroes who died in a gritty SFF war movie and placing them in a context where they’re all queer and happy and alive??) but, for easy examples from my own work, I think that…

…this vid https://youtu.be/1Bp0fLBgvNk ">https://youtu.be/1Bp0fLBgv... pretty clearly qualifies as commentary, and this vid https://youtu.be/BxX3OShvUI0 ">https://youtu.be/BxX3OShvU... probably doesn’t. Same fandom, very different intended purposes.

So. Is it transformative. The Big Question, right? Whether something can be considered criticism or commentary goes into whether it’s transformative (which is partly why this is all under the same point) but obviously isn’t all of it. Moreover, this is often considered…

…the most IMPORTANT factor, as established in Campbell v. Acuff-Rose Music, Inc. (From Justice Souter’s opinion: “the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.”)

Side note, this is also the case that ESTABLISHED the idea of a work being “transformative.”

This is where the “Organization for Transformative Works” (which runs AO3) got its name, which in turn is where the term “transformative fandom” came from.

(I am aware that because of the above uses, as well as usage by acafen, the term has had semantic drift; this is a thread about US copyright law, and I will be using it in that sense throughout this thread. I do not want to debate about this.)

Anyway. IS IT TRANSFORMATIVE? Part of the problem here is that this question is so INCREDIBLY subjective, has been interpreted & ruled on VASTLY differently by various judges, and is literally required to be determined case-by-case. The other problem when applying this…

…to fanworks is that there is certainly SOME applicable case law, but not.....a lot, and nothing where the fact patterns perfectly fit fandom. So just to go back to the above SCOTUS decision…

…does the fanwork “add something new, with a further purpose or different character, altering the first with new expression, meaning, or message”?

You’d think yes, for most fanworks, right? The case law says…maybe.

The HP Lexicon was ruled “slightly transformative” (but still a copyright violation.) Richard Prince’s collages (which used unlicensed images from a photographer’s book) were ruled transformative despite not providing particular commentary on the original work or pop culture.

In Dr. Seuss Enterprises v. Penguin Books, the court found that a book telling the facts of the OJ trial in the writing & art style of Dr. Seuss was NOT transformative because it was satire, not parody.

HOWEVER, in the ongoing case of Dr. Seuss Enterprises v. ComicMix, the last ruling from a District Court of Appeals said that a Star Trek mashup in the style of Seuss WAS transformative fair use; the Seuss team is appealing (OTW has filed an amicus brief…

…in this case) so ¯\_(ツ)_/¯ We’ll have to wait to see how this one turns out.

The most damning case law applicable here, imo, is in Salinger v. Colting, where JD Salinger sued a guy who wrote a sequel/maybe a sequel/“he said it’s a sequel”/“it’s not a sequel!” (basically it’s futurefic) to Catcher in the Rye. It was determined to be infringing.

This case was both relatively recent (2009), and in its decision, the District Court determined:

“The District Court … concluded that 60 Years Later does not have sufficient non-parodic transformative value. Although 60 Years Later& #39;s comment on Salinger himself "has some…

…transformative value," the Court found that it is insufficient to render the work as a whole transformative for three reasons. First, according to Colting& #39;s public statements, his purpose for writing 60 Years Later was not to comment on Salinger but to write a Catcher sequel.

Second, Salinger is a "minor or supporting character" in 60 Years Later. And third, the ratio of borrowed to transformative elements in Catcher is too high to render the entire work transformative.”

Although money was a factor here, applying the test in this way does not bode well for fanworks imo, especially because this analysis was upheld by an appellate court.

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