Copyright Law and Fandom, or, "Am I Gonna Get Sued?"
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| Title: | Copyright Law and Fandom, or, "Am I Gonna Get Sued?" |
| Creator: | Susan M. Garrett |
| Date(s): | May 1990 |
| Medium: | |
| Fandom: | multifandom, print zines |
| Topic: | |
| External Links: | |
| Click here for related articles on Fanlore. | |
Copyright Law and Fandom, or, "Am I Gonna Get Sued?" is a 1990 essay by Susan M. Garrett.
It was printed as a part of the four-part The Fantastically Fundamentally Functional Guide to Fandom. The first volume was an instruction manual meant to explain the basics of fandom and fanworks to new fans and to be a reminder to more seasoned fans. The other three volumes were titled: The Fantastically Fundamentally Functional Guide to Fandom for Fanzine Editors & Publishers, and were practical guides to creating fanzines.
This essay was the last volume in the guide for editors and publishers.
See some similar essays for context.
Precedes the Internet and the Chilling Effect of Marion Zimmer Bradley
While the essay's author cites the threats to fanworks and Star Wars fandom (which had a lot of bleed-over to other communities) due to the Open Letters to Star Wars Zine Publishers (1981), the essay's context precedes the internet as well as the 1992 Marion Zimmer Bradley Fanfiction Controversy, a conflict that flavored and had a chilling effect on fanworks and fandom for decades.
This means that, among many other things, fandom had not run into the stipulations by several authors' vampire and other fantasy genre fiction due to the Bradley conflict.
Some authors who brought the hammer down on or clarified their views on fanworks based on her books were Chelsea Quinn Yarbro, Marion Zimmer Bradley, P.N. Elrod, Anne McCaffrey, and Mercedes Lackey.
Some Topics Discussed
- aside from three or four sections about fanworks, this essay mostly addresses professional works
- What is copyright?
- What can be copyrighted?
- When an editor copyrights a fanzine, what exactly is copyrighted?
- What is public domain?
- What cannot he copyrighted?
- How long does copyright protection last?
- How can copyright be transferred?
- What is work for hire?
- How do you get a copyright?
- Where is a copyright notice placed?
- When can portions of copyrighted material be used without permission?
- What is infringement?
- Can a character be copyrighted?
- Is a picture of an actor in costume as a character copyrighted to the actor or the copyright owner of the character?
- Does the copyright of a photograph belong to the photographer?
- Are fanzines in violation of copyright laws?
- Should an editor contact a production company or author to get permission to do a fanzine?
- Where can a fan find out more about copyright law?
Introduction and Conclusion
There seems to be adouble standard with regard to copyright laws in fandom — most fans feel it’s all right to ignore the copyright belonging to a professional, but nobody better tread on a fan’s copyright. That’s an attitude that has to be corrected — if you don’t treat both amateur and professional copyrights with the respect they deserve, how can you complain if fan infringes on your copyright? Because copyright is a very complicated issue, we’re only going to address the basics. The end of this section contains a list of recent reference books to assist you in the further investigation of copyright. Most of the following information has been taken from government public information publications regarding copyright, except where noted. Don’t accept anything we say as absolute — any section in this chapter could have completely different answer if a new court interpretation were handed down tomorrow and one very well could be. We suggest you contact a copyright attorney should you have any questions.
Copyright is a property right that protects a creator from infringement upon their exclusive right to reproduce and distribute their work. Copyright can be difficult to research because the actual laws regarding copyright arc interpreted through court decisions, which are ongoing and, sometimes, conflicting. Our best advice is to tread carefully when dealing with the rights of others, whether professional or amateur, and consult a copyright attorney should you have any questions.
From the Essay
When an editor copyrights a fanzine, what exactly is copyrighted?A fanzine, like a magazine is considered a collective work, which is a work consisting of a number of submissions from various contributors, or the same contributor, collected in one place. The layout and presentation of a fanzine is copyrighted when an editor copyrights a zine, but the content is not. The copyrights belong to the contributors or the copyright owners of the submissions to that fanzine. The agreement between the editor and the contributor at the time of the contribution determines what kind of rights an editor has to a submission.
For example, if an editor states in their copyright statement that “all rights revert to the contributor upon publication,” then the editor probably would have to contact the contributors to reprint the material in any other way, shape, or form, including reprint after the termination of an original print run, or collection of previous issues (including fanzines, newsletters, letterzines, etc.), because the statement signifies that the submission is to be used for that issue only. Another way of stating this caveat is to say that the editor is permitted “all first North American publishing rights” if the zine is sold strictly in the U.S., or “all first international publishing rights” if the zine is sold overseas as well as the U.S.
Conversely, if a contributor wants to reprint their work in another fanzine, they may do so, but they cannot use the layout and exact pages as they appeared in a previous zine, which has been copyrighted to the editor of that zine. The work should be retyped and tiny work added by the editor (such as a border around artwork, an artwork submission that accompanied text, etc.) should not be included in that reprint.
What portions of copyrighted material can be used without permission?[...]
“Fair Use” is considered to include the use of excerpts from a copyrighted work for the purpose of criticism, review, scholarly or research work, technical work, parody, news reporting, reproduction in legislative or judicial proceedings, and teaching. Every case of “Fair Use” has to be decided after an examination of the specifics of that case. The criteria to be taken into account when examining each case may include the purpose and character of the use (such as commercial vs. educational), the nature of the copyrighted work, the proportion of the copyrighted work used, and the potential harm to the future marketing of the copyrighted work.
[...]
Does this means that filksongs are “Fair Use”? Any decision made would be based on a particular circumstances surrounding a case. If a filk song were a parody, if a significant proportion of the lyrics were original, and if the actual musical notation were not printed, it might be possible that the filksong would be free of copyright infringement with regard to the song upon which the filksong was based. If you want to know, ask your copyright attorney.
The quotation of the copyright lyrics of a song at the beginning, end, or during apiece of fiction would probably not be covered under “Fair Use,” with regard to the above mentioned case, because the lyrics are original and are not quoted within the context of a review, criticism, etc. Again, if you have a question, ask your copyright attorney.
Are fanzines in violation of copyright laws?Maybe. It depends upon the fanzine, the contents, whether or not permission has been supplied by the owner of the copyright, and the way the law is interpreted. Most collections of filksongs that do not publish the copyrighted music, present original lyrics to be sung to a named tune, and are considered works of parody are probably not in violation of copyright with regard to the song copyright — although remove the parody requirement anti they may be in violation of copyright if they mention specific copyrighted characters.
Most newsletters would not be considered copyright infringement if their material was limited to news and items of public information. Most letterzines could be defended on the grounds that they arc both outlets for opinion and dissemination of news. Adzines also probably could be considered newsworthy, if the only fannish artwork included was parody or an advertisement for a zine listed. Reviews would be covered as review and criticism under “Fair Use.”
Fanzines containing fiction based on a copyrighted source material are questionable. “Fair Use” is a specious argument at best — it’s doubtful whether any court would agree that fanzine fiction was scholarly, newsworthy, critical, etc. Most copyright owners don’t know about the existence of fanzines and many that do know don’t seem to care — the limited exposure of fanzines with print runs of 100 or 200 copies isn’t that much of a threat to future earnings and serve as a form of advertisement and promotion. The money involved in fanzine sales, after the production price is considered, is small potatoes to a lot of production companies. Why spend more money on attorney’s fees than you’d be able to collect through the royalty percentage on the sale of a fanzine? And why stop a fanzine if it isn’t a financial threat and can lose your show the grassroots support it needs to continue to be a success?
How a copyright owner reacts to a fanzine depends on the copyright owner. Paramount has been aware of Star Trek fanzines for years and has fallen into a habit of using fanzines to promote Star Trek (how many Star Trek paperback books started life as fanzine stories? [1].
Staff employed by Lucasfilm collected fanzines at one time and, in response to certain material published in fanzines. Lucasfilm announced their opposition to certain fannish sexually explicit material based on Star Wars out of concern for the ‘PG’ audience they wanted to maintain for their product by sending letters to various fanzine editors informing them of their decision on this matter.
A Miami Vice letterzine was ordered to ‘cease and desist’ publication for trademark and copyright infringement alter Michael Mann took over as the show, then was later invited to continue publication (the editor declined).
The Beauty & the Beast copyright owners have, as far as we’ve been told, actually authorized certain fannish publications.
There haven’t been that many run-ins between fans and copyright owners with regard to fanzines and, although there have been a few threatening or ‘cease and desist’ letters from lawyers, there have not, to our knowledge, been any cases where a fanzine was taken to court for copyright infringement (if you know of any, we’d be happy to hear about it). That doesn’t mean that it can’t or won’t happen. Media fandom, with the exception of Star trek, has always been a small component of the general population and never received much attention from the news media, or from ‘literary genre’ fandoms (whether they be science fiction, fantasy, mystery, romance, or horror). But more and more non-Trek media material is turning up in the dealers’ rooms and art shows of genre conventions. If the evening news starts ignoring strangely attired convention attendees [2] and concentrates instead on fanzines and their content, will the copyright owners start to take an interest?
The whole point is that the copyright owners have a right to contest what they might see as a possible infringement on their property. Much of fandom is in technical violation of copyright, from unauthorized reproduction of scripts and photographs, to derivative works based on original copyright.
Should an editor contact a production company or author to get permission to do a fanzine?There is nothing to stop you from writing to a production company and asking permission to do a fanzine. Most people have no idea what a fanzine is and automatically assume it’s a professional, for-profit publication. If you do ask permission, explain that you plan an amateur publication with a limited print run (list the number of copies you plan to produce) of original material by amateurs. This may not clear it up entirely, but it may save you from getting an instant ‘N-O!’.
If you do write and ask for permission, be prepared to abide by the answer you receive. If someone says ‘no’, drop the project and go on to something else. You might receive a tentative ‘yes,’ with a list of attached questions and requirements. If you write to an individual, such as an author of a series of books or a creator of a television show who isn’t part of a multi-national conglomerate, you’re more likely to receive a personal answer. If you send your letter to the legal department of any production company, you’re more likely to get a resounding, ‘No!’ If you write to the production office, you might be ignored, or you might find a kind and sympathetic soul who will actually forward your letter on to someone who might help you. There’s no way of telling what kind of answer you’ll receive.
This doesn't mean we want 80 people to run out and deluge the creator of their favorite program with requests to do fanzines. It does mean that you should look at the marketplace. If a production company or copyright owner has set a precedent by making their wishes known regarding what they will and will not tolerate, you may want to follow the pack. Lucasfilm has made their restrictions known — so abide by them. Paramount seems to look upon fanzines as promotion they don’t have to pay for. However, if you’re dealing with a new fandom or one that doesn't have any precedents, put out some feelers. Did someone else try to put a fanzine based on the show and get slapped down before they started? Ask some questions of other fannish editors and, if you're on virgin territory, consider asking permission before you start work.
Other Essays in This Series
- The Seven Deadly Sins of Fandom
- S.A.S.E. or You Want an Answer When?
- Telephone Courtesy OR How to Make Enemies Without Even Trying
- A Buyer's Guide to Fanzines OR How to Not Drop $200 in a Hurry
- Ordering Zines by Mail OR Waiting by the Mailbox
- The Letterzine OR The Gift of Gab
- Research, OR Ignorance is Not Bliss
- Pseudonym
- Simultaneous Submissions, Resubmittals, and Reprints, or, Where I Have I Seen This Before?
- The Fanzine Bill of Rights
- L(etter) O(f) C(omment) or How Am I Doin'?
- What to Do with an LOC, or, The Roar of the Crowds
- Copyright Law and Fandom, or, "Am I Gonna Get Sued?"
References
- ^ "How many Star Trek paperback books started life as fanzine stories?" -- It depends on what "started life" means. Does it mean a fanfic that was in a fanzine and re-jiggered for publication, such as Star Trek: The New Voyages? Does it mean drawerfic or other personal writings that were accepted to Paramount for their pro novels? Does it mean stories that were very "fanficcy" and became novels, such as The Price of the Phoenix?)
- ^ This is a reference to the many, many ham-handed, clueless media coverage fandom generated, reporters fixated on people in Spock ears and odd fixations. Some examples of print coverage in general and some 1990 and before examples here.