hJc: A translucent, dusty gold powder

09:54 am: Copyright and plagiarism and derivative use
We honestly have no rights once we've posted our stuff? (a response to ingrid's post here)

Actually, we do.

Anything I write, I own the copyright of.

If anyone takes my writing and turns it into a novel, files the numbers off and sells it, I can sue that person for stealing what I wrote: even if they just took what I wrote and created a directly derivative work from it, I can absolutely make their future publishing career troubled, brutish, and short. (No publisher is going to be happy having a writer connected with them who steals another writers' work.)

Fanfic falls in a grey area from definitely-legal to definitely-infringing: the novelisation of an episode, for example, would fall under "infringement" - probably, unless it was a parody, which is always legal - but a story written based on the series? Quite possibly legal, if it was different enough from the original that the people who own the copyright of the original could not claim that you were infringing on their copyright. Certainly, while (for example) Paramount could step in and say "Wait, we own the copyright of Star Trek and we are claiming this work is unfairly derivative of Trek" a third person who doesn't own the copyright of Trek cannot step in and say "Hey, this story is illegal, that means I can steal it."

The legal situation is weird, basically, because (until this incident with a romance novel writer stealing a K/S story) there has never been a good reason for a fan to take someone to court over their own story. But this situation is a good reason to do it - or at the very least, to pay a solicitor to write a couple of letters, one to the publisher and one to the "author", to notify them that you own your own words. Which you do. Copyright law is quite clear about that.

The corporations who own the copyrights of our original materials are much richer than we are and can afford much better lawyers: but I think one reason why no corporation has ever made a concerted effort to root out the fanfic is not just because it would piss off their fanbase: it's also because their very good lawyers have doubtless warned them - pick on the wrong story and the wrong writer and they might lose. And a lose in the courts - for example, a lose that definitively makes fanfic with non-canon pairings explicitly legal - would not be a good move for them.

(Fanfic set in written fandoms - Harry Potter, frinstance - is on a much edgier basis, just as songvids are: it's more likely to be considered directly derivative. Of course, fanfic set in written fandoms that are out of copyright is perfectly absolutely totally legal... Sherlock Holmes, anyone?)

Now, it's possible that if it ever did get to the courts, we'd lose - some forms of fanfic would become definitely illegal, instead of "undecided". Maybe it would turn out that although I wrote and published a story, I can't claim copyright (and more than possible that if we got to the courts, and won, and this made Disney unhappy, they'd just get the US government to pass a new law saying the court was wrong) but it seems unlikely. Truly: the law of copyright is, you own your own words. To change this - to argue that a writer can't claim copyright when publishing a derivative story using characters and situations that belong to another copyright - would be to radically change copyright law. Maybe Disney can do that, but a random romance writer who just stole a K/S story can't.

Fans who talk as if we already had that fight and we lost are just wrong. We haven't yet had that fight, and if we did, we don't know yet if we'd win or lose.

In other news, Six Apart sold Livejournal to SUP, which has been running Livejournal in Russia already.