This is a topic near & dear to my heart (I’ll let you guess why).
If you’re a frequent reader of my blog (or follower of me on Twitter), you probably already know that I have some… let’s just say strong feelings about copyright law. You might also know that I enjoy viewing & reading fan works (and may have even created some shameful ones of my own in the distant past – which will remain hidden FOREVER.)
One side effect of this is that over the years I’ve become very familiar with copyright law itself, which is a useful skill to have these days. So, I figured I’d write up a quick guide to help people out a little bit, because let’s face it… copyright law is weird, non-intuitive, and complicated.
(Oh, and just so we can get the annoying stuff out of the way first: I am not a lawyer, and this isn’t “legal advice,” it is just a layman’s opinion/summary. So don’t go out and get yourself in trouble based solely on what I say, and then come around and sue me, OK?)
If you need a quick refresher on this whole copyright process, I highly recommend you go watch C.G.P. Grey’s video on the subject. In fact, I might just embed the whole thing right here!
Everything is Copyrighted
Every original work, no matter how small or insignificant, is protected by copyright (at least in the US) the instant it is created. Everything from that crayon drawing you made when you were 3 to the amazing novel just finished yesterday. EVERYTHING.
The definition of what is covered by copyright is insanely broad – although it originally started out for things like books and paintings, it has evolved to cover pretty much everything you can “create.”
Who is the “Owner” of Copyright?
The basic rule here is, if you created it, you have copyright over it.
Things get complicated if it was a joint project – in general, to be safe, you should assume that everyone who worked on creating it shares the copyright equally (even if nothing was ever written down or formally agreed upon).
If you created the work “for hire,” that is, if you were paid to create it as part of your job, or if you were commissioned specifically to create it, then you DON’T own the copyright – your employer or the person who commissioned the work does.
Any Unauthorized Use is Copyright Infringement
With only a very few exceptions, if you don’t own the copyright to something, then you cannot use it in any way – and if you do, you are violating the copyright of the owner.
Important distinction: when an unauthorized person uses a copyrighted work, that is not “stealing,” it is a violation of the owner’s “copy right,” sort of like censorship is a violation of a person’s “free speech right.”
There are, of course, some exceptions (again, these are taken from US law and may not be applicable where you are). You might have heard of them – they’re called “fair use.”
Fair use, like most legal terms, doesn’t mean what it seems to mean on its face – that if the use is “fair,” then it’s OK to use a copyrighted work without the owner’s permission. Instead, it means that if the use falls within certain defined uses, then it’s OK.
Fair use is unfortunately one of those things that isn’t (and can’t) be narrowly defined – it’s one of those “you’ll know it when you see it” things, which means people end up in court arguing about it a lot of the time. Sadly, that’s just the way it is.
For a full treatment of what fair use is and means, check out Wikipedia’s article on the subject.
It Doesn’t Matter if You Make Money or Not
Well, that’s not entirely 100% accurate – whether you make money from what you are doing is a factor that is considered in determining whether your use falls under “fair use.”
Not earning money from something does not automatically make it “OK’ for you to use a copyrighted work – but in many cases it will affect whether the owner of the copyright decides to spend the time, money, and effort in suing you to stop your unauthorized work.
Some copyright owners will sue everyone who uses their works, no matter what – and unfortunately under the law it is their right to do so.
Others, however, will only go after those people who are profiting from their work or who are doing things that directly (and negatively) affect their own ability to profit from their work.
Hey, I never said this copyright thing was going to make sense.
You Can’t Disclaim It
That is to say, you can’t disclaim copyright infringement – if you are using a copyrighted work without the authorization of the owner, and your use does not fall under “fair use,” then it doesn’t matter what you say – you are still infringing the owner’s copyright, and they can seek legal recourse against you.
For example, I can’t post an entire episode of a TV show online and just say “this isn’t owned by me, I don’t have copyright, it belongs to Such-and-such, Inc.” I’ve still violated their copyright; my disclaimer is technically and legally meaningless.
Let me say that again: there is NO disclaimer you can add to the unauthorized use of copyrighted material that will make it OK.
As an aside: if you think your use falls under “fair use,” but you’re worried that the copyright owner might disagree, a disclaimer might help sway their decision whether or not to sue you, especially if you spell out your reasoning at least a little bit. But it’s not guaranteed, and if it goes to court, it will have absolutely no bearing on anything.
You CAN transform it
I started this article in the context of “fan creations,” and if you’re not quite sure what that means, well… I’m not sure I can help you with that. If you’ve been on the Internet for any length of time, chances are you’ve run across “fan creations.”
The thing is, most “fan creations” fall into another legal category when it comes to copyright, one that not a lot of people talk about. Specifically, I’m talking about transformative works.
This is another one of those areas of law that doesn’t have a narrow definition – another one of those “you’ll know it when you see it” things. But in general, if your work “transforms” the original work into something else, something which is original and not merely a copy, then it’s OK, and your work would not be considered copyright infringement.
To take my example from before, while I can’t post an entire episode of a TV show online without violating copyright, if I take that episode, chop it up and re-arrange parts of it (and leave out other parts), and replace the entire soundtrack (voice and effects) with my own recordings, maybe even mix in some original video of my own, and post that online… then this would probably be considered transformative, and not infringement.
Trademark Law makes everything 20% more confusing
One thing to watch out for is that sometimes trademark law gets mixed in, and that just makes everything more confusing.
For example, you might make a transformative work, remixing a TV show with your own dialog, or making your own works featuring original characters (but based on something that is copyrighted), and you could still run afoul of the law (and have your work taken down from whatever site is hosting it) because the owner has registered a trademark on a character’s name or likeness, or on the name of the world, or on some other aspect of the work.
This is particularly likely if there is any sort of “merchandising” involved – which, if it’s popular, there almost certainly is.
Trademark law is a bit more narrowly defined than copyright law, but it’s also more vigorously defended – because you can lose your trademark if you don’t make an effort to stop people from using it inappropriately, for example.
What about this crazy “Creative Commons” thing?
I’m glad you asked – creative commons is a great way to get around all this legal hullabalu, but it has to be done by the owner, not you (the person making the fan work). You can still release your own works under a creative commons license, though.
I’ll be talking about Creative Commons in more detail in a future article, so stay tuned for that.
The Bottom Line (or, tl;dr)
Copyright law (and its close sibling, trademark law) is a complicated subject, but one that anyone who does fan works of any kind should at least have a basic understanding of. It’s extraordinarily easy to violate copyright (even unintentionally), but at the same time, you don’t actually get in trouble for it unless the owner chooses to pursue you in court. This is because copyright law, unlike say murder or theft, is a civil, not criminal matter. (Well, at least it WAS… until the DMCA came along and changed that for some cases.)
If you’re creating almost any kind of fan work, you’re probably skirting the boundaries of copyright infringement, depending on how close your work mirrors the original work – and it doesn’t matter how many disclaimers you paste all over it. If it violates copyright, it violates copyright, no matter what your disclaimers say. This is – for better or for worse – the state of copyright law (at least in the US and any other countries with similar laws).
The rule of thumb I guess would be to try to be inspired by the works you are a fan of, rather than just copy them outright. Use that inspiration to create your own works. And if you must do stuff that straddles the border between violating copyright and not, then for goodness sakes don’t try to make money off of it… because that’s just an incentive for the copyright owner to try to stop you (sue you).
Finally, I don’t want this to discourage anyone from creating fan stuff – frankly, the world needs MORE creative works, not less, and I’m not trying to scare people with legal talk. Honestly, I personally think copyright law needs a bit of an overhaul. But until then, we’re stuck with the laws we do have, and being ignorant of them is no good either, so I hope this at least sheds a little light on the issue for everyone who reads it.