Maidens of the Kaleidoscope
~Beyond the Border~ => Sara's Audio-Visual Import-Overflow Retail => Topic started by: TakuTaku on January 15, 2011, 03:24:54 PM
-
Why is selling fanfiction illegal? If it is illegal, then shouldn't doujinshi and fanart be placed under this umbrella?
I mean, I understand how people can get away with comissioned fanworks because the commissioner is simply paying for the service of getting whatever he wants drawn. The commissioned artist can say that he is paid for his service but not for the piece itself.
But this just confuses me more, because selling doujinshi and fanart is seen as normal and not really frowned upon. Comiket does still exist. But aren't doujins just fanfics turned into comics? Or does this all just apply in the west? Since, well... I heard that Otakon actually attempted to ban selling fanart in their Artist Alley.
Fanfaction, guys. Fanfiction. Why is it so wrong to sell fanfiction when fanart and fancomics are the same thing? But drawn?
So yeah, I turn to you guys for some opinions and schoolin'
-
Do you mean other people's fanfiction? Or your own? If it's someone else's, then the reason you can't sell it is obvious.
In addition, is it fanfiction based off someone else's material? If it's someone else's material, then, again, you can't sell it for obvious reasons.
Otherwise, there is nothing anyone can do from selling your stuff.
-
Let's say I wrote a Harry Potter fanfic and decided to sell it, then it would be considered illegal right? Because I'm totally making money off JK Rowling's characters and universe.
But then... why is that illegal when we have people selling doujinshi? Isn't it the same thing? People are still making money off other people's material.
-
Since, well... I heard that Otakon actually attempted to ban selling fanart in their Artist Alley.
No, not really.
The following items are prohibited from sale within The Alley:
Any work with copyrighted logos, regardless of whether or not the work is original.
Mass produced* prints of art depicting licensed characters.
Buttons, pins, hats, or t-shirts bearing official character likenesses**. If an artist has, and can produce proof of, explicit permission from the copyright holder to use, then the items will be allowed. This will be determined at the discretion of the Department Head of The Alley, in consultation with all other necessary parties.
Photoshopped, traced, or copied characters in recognizable poses but with different backgrounds.
?Knockoff? or bootleg merchandise of any kind (including but not limited to: videos recorded on blank videotapes with printed labels; homemade DVDs, pirated copies of any titles that have been released commercially in the United States, Japan, or elsewhere, titles taped off the air in Japan, and any fan-subs).
Any posters, idol cards, etc., which read ?Kodak? ?Fuji?, etc. on the back.
Unlicensed reproductions of any products actually released by an American company.
Food, snacks or beverages.
Legally imported merchandise or legitimate US products. This includes, but is not limited to: wall scrolls, sharpies, art supplies, duck tape, glow sticks etc.
* Our policy is amended to clarify that, for fan art (including but not limited to: doujinshi, fan art prints and buttons), up to 10 copies of a single piece are allowed, unless that item is otherwise explicitly disallowed. This is also the standard by which the Alley staff will define ?mass production?. The total number of pieces of fan art sold will not exceed 200.
** Official Character Likeness is defined as the actual picture of a licensed character, vehicle, etc. produced by the copyright holder. Fan created drawings do not violate this rule.
-
That was really insightful
-
IIRC unauthorized doujinshi is also illegal, it's just that japanese companies usually see them as free promotion, so they don't really care if you sell your fan-made stuff.
-
So I'm free to sell doujinshi based of Japanese anime and games but not of western ones?
-
If I'm not mistaken, it comes down to American/Western copyright law and the enforcement thereof. If you don't live in an area where the copyright law enforcement is lax, you're out of luck.
-
Depends on your country.
You see copyright laws aren't universal (no matter how bad certain industries try to make them so). In Japan not enforcing your copyright, or enforcing it selectively, means absolutely nothing legally. So Japanese companies are free to let doujin makers put out works. If you live in Japan you're probably okay.
In America certain lobbies have successfully gotten the courts to make it so that if you don't defend your copyright like a rabid dog, you lose it. This allows large companies to legally steal from people who can't afford a team of lawyers to troll the market 24/7 to enforce copyright. It also forces everyone who wants to keep their copyright to send rabid lawyers to challenge anyone who MIGHT be violating it.
Other places? I don't know. Depends on if the law is closer to US or Japanese law.
-
i know a pair of fanfics who are selled without problems, and are about western things....
http://www.lulu.com/product/tapa-blanda/with-strings-attached-or-the-big-pink-job/14606119 a Beatles fanfiction, one of the best ones in internet and epic in very aspects...the author wrote this 20 years ago (only ended in 2009) even that, she avoid tho write some words (like the name of the band) for copyright. (even that, when you say "the fab four" you know exactly who they are, nee?)
Harry Potter y el Ocaso de los Altos Elfos. a Harry Potter complete fanfic book done, but i don?t know if this is selled or not. (even that, you can downloaded) I remembered this one because the author is Chilean n_n
i don?t know if doujins with western charas can be sell. But i know who exist Beatles doujinshi in Japan (a rarity, but exist XD) or PPG.
i think who you must ask first to someone who knows about copyright laws...anyways, a "fanfiction" have the same spirit of a "novel doujinshi" (and a fanzine is almost like a doujin, too)...how the genre no appear in the Otakon policies, probably you must ask about a limited number of copies. ...wait...But Harry Potter is a western book, and Otakon is a Japanese animation,games and other things related convencion, and for that called like that? (from "otaku")...mm...probably you must think in seel your fanfiction in a Harry Potter con, maybe in Otakon you no will be admitted (i believe)
And all is because we used the word otaku for mean "anime,manga,japan videojames, japan related fan" only, meanwhile in Japan the word is used for any geek (computer fan, mecha fan, weapon fan, idol fan, animation fan, and a looong etc) with the animation-manga otakus and fangirls (or fujoshis, the rotten girls) like the first majority.(that mean who i was a otaku since long time, for my beatlemania)
-
Let's say I wrote a Harry Potter fanfic and decided to sell it, then it would be considered illegal right? Because I'm totally making money off JK Rowling's characters and universe.
Correct. (http://en.wikipedia.org/wiki/Warner_Bros._and_JK_Rowling_vs._RDR_Books) The law privileges parody and (to a lesser extent) satire, because you necessarily need to use the author's characters and setting to comment on the work. However, it's not okay under fair use to use someone else's characters/setting just because you didn't want to make up your own for whatever reason. See also Salinger v. Colting (http://caselaw.findlaw.com/us-2nd-circuit/1521467.html) on unauthorized sequels.
Depends on your country.
You see copyright laws aren't universal (no matter how bad certain industries try to make them so). In Japan not enforcing your copyright, or enforcing it selectively, means absolutely nothing legally. So Japanese companies are free to let doujin makers put out works. If you live in Japan you're probably okay.
In America certain lobbies have successfully gotten the courts to make it so that if you don't defend your copyright like a rabid dog, you lose it. This allows large companies to legally steal from people who can't afford a team of lawyers to troll the market 24/7 to enforce copyright. It also forces everyone who wants to keep their copyright to send rabid lawyers to challenge anyone who MIGHT be violating it.
Other places? I don't know. Depends on if the law is closer to US or Japanese law.
Wrong on all counts. First, copyright can only be waived with an explicit statement. You may be thinking of trademark, which can be lost through non-enforcement. But copyright automatically attaches from the moment you create the work (unless you explicitly release it into the public domain) and lasts until A) 70 years after your death, B) you assign your rights to someone else, or C) you are found by a court to have committed copyright misuse. There is a statute of limitations on copyright actions, meaning that if you know about a violation and don't act on it for a certain period of time, you lose your right of action. But that only applies in the one case, and certainly doesn't strip you of your copyright against all parties.
Second, copyright laws may not be universal, but the TRIPS Agreement (http://en.wikipedia.org/wiki/TRIPS_agreement) lays out minimum requirements for WTO nations' copyright statutes, and requires all member nations to give fellow signatories' authors the same protection as their own. So where a violator lives doesn't usually make a huge difference.
The reason doujinshi in Japan are not (usually) subjected to copyright prosecution is not because Japan's legal structure is different (again, global copyright is largely standardized by Berne and TRIPS), but because of what Tim Wu has termed "tolerated use" (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1132247).
-
So I'm free to sell doujinshi based of Japanese anime and games but not of western ones?
Under TRIPS, a US court (or a Japanese court, for that matter) has to treat an American rightsholder and a Japanese rightsholder the same.
I should also clarify that fanart, fancomics and fanfiction all count as "derivative works", which are the exclusive right of the original author to create. 17 USC 106(2). (http://www.law.cornell.edu/uscode/17/106.html) Also, a character can be copyrighted (http://en.wikipedia.org/wiki/Air_Pirates#Lawsuit). I see no basis for differential treatment of fanart, fancomics and fanfiction under the copyright laws.
-
Second, copyright laws may not be universal, but the TRIPS Agreement (http://en.wikipedia.org/wiki/TRIPS_agreement) lays out minimum requirements for WTO nations' copyright statutes, and requires all member nations to give fellow signatories' authors the same protection as their own. So where a violator lives doesn't usually make a huge difference.
Well what if I got on a privately-owned space shuttle, blasted into orbit, and drew a Harry Potter erotic fanfic where all the characters are furries? And then began selling it online from onboard the shuttle? What about that, Mr. Lawyer Man?
-
Well what if I got on a privately-owned space shuttle, blasted into orbit, and drew a Harry Potter erotic fanfic where all the characters are furries? And then began selling it online from onboard the shuttle? What about that, Mr. Lawyer Man?
Pretty sure a furry will try this in 10 years.
-
Pretty sure a furry will try this in 10 years.
And it'll end up being a case in the next Phoenix Wright game.
BV
-
It's so cool having an actual lawyer on the forum :]
So basically the doujin community is allowed to flourish because Japanese companies are smart enough to realize that it helps make their franchises more popular. Compare this to say, Games Workshop, who is basically determined to track down and murder every fan they have.
-
Or every western record label there is.
-
Or every western record label there is.
They do it less to protect their copyright and more to squeeze every cent out of everyone else involved with what they're selling, though.
-
So the bottom-line is that I'm not allowed to sell fancomics, fanart and fanfics of anything in America unless I was somewhat authorized to do so?
Am I getting this right?
-
They do it less to protect their copyright and more to squeeze every cent out of everyone else involved with what they're selling, though.
YOU MADE A VIDEO OF YOUR NEW CAR STARTING AND PUT IT UP ON YT THERE'S 5 SECOND OF A SONG UNDER OUR LABEL IN THE CREDITS BANBANBAN
They're losing money.
-
So the bottom-line is that I'm not allowed to sell fancomics, fanart and fanfics of anything in America unless I was somewhat authorized to do so?
Am I getting this right?
Under Berne--incorporated by TRIPS--fanwork constitutes a violation of copyright (as a "derivative work") in most of the world, not just America.
Fanwork is not generally prosecuted in Japan, possibly in part because creators appreciate the attention, but also because:
I spent four wonderful months in Japan, and I asked this question as often as I could. Perhaps the best account in the end was offered by a friend from a major Japanese law firm. ?We don?t have enough lawyers,? he told me one afternoon. There ?just aren?t enough resources to prosecute cases like this.?
Lawrence Lessig, Free Culture. (http://www.authorama.com/free-culture-4.html)
It's worth noting that most fanworks are not prosecuted under copyright in the US, either. The examples I linked before--the Harry Potter Lexicon, the Seinfeld Aptitude Test, and the Catcher in the Rye sequel--were all physically printed and sold for profit. So there's a pragmatic element--your typical DeviantART Naruto tracer is what lawyers call "judgment proof," no money to gain from suing*.
Of course there's fair use, which I mentioned in passing earlier. Again, not every fanwork is parody, but there are some uses of copyrighted material that are privileged under the copyright law. Berne imposes a rough equivalent of fair use on all member nations, too.
In all, fanwork (commercial or not) technically abridges the original author's legal rights, no two ways around it. But the author is free not to act on the encroachment, and in many cases he won't. Compare speeding, or trespassing, or early cable TV (retransmitting broadcast signals through a wire)--unlawful, but common enough that people don't usually care.
* That's especially important because copyright litigation tends to be very expensive. Questions of copyright are by their nature heavily fact-based, so lots of expert witness fees and evidentiary motions. Moreover, most copyright cases are very borderline. Some Ansel Adams fans hike into the mountains and painstakingly recreate his famous valley photograph--position, lighting, even the clouds, such that the fan photo is virtually indistinguishable from the original. But it's not a photocopy or anything. Who wins?
-
Suffice to say that US copyright law is pretty much broken. We can hope and press for changes in the future, though.
-
Actually by any terms, Selling Fanfiction can be considered Illegal, because of these:
- you're using another thing, character or setting from another person/company/group
- It's supposed to be FAN, not made for sale (except if the characters are yours, of course you can use it as you like)
-
Actually by any terms, Selling Fanfiction can be considered Illegal, because of these:
- you're using another thing, character or setting from another person/company/group
- It's supposed to be FAN, not made for sale (except if the characters are yours, of course you can use it as you like)
While I would reiterate that most fanwork as we know it is not parody and generally questionable at best on a fair use inquiry, I would also point out that selling the work for money does not prejudice an otherwise fair use. (http://en.wikipedia.org/wiki/Campbell_v._Acuff-Rose)
-
Thanks a lot, Bad Appelant, I think I have a bigger understanding of this selling fanworks :'>
Glad you're on this forum :3
-
The thing is... even if you were selling original works, it's more likely than not that your original characters/storyline/etc resembles some already existing IP closely enough that you could get sued anyway. :ohdear: There is plenty of precedent for this, ie when J.K. Rowling was sued by some aspie broad that claimed she owned the word "muggle". When someone copyrights "and" and "the", it's all over.
-
The thing is... even if you were selling original works, it's more likely than not that your original characters/storyline/etc resembles some already existing IP closely enough that you could get sued anyway. :ohdear:
While that's possible (http://ftp.resource.org/courts.gov/c/F2/715/715.F2d.1327.80-5868.html), it's axiomatic that you cannot copyright ideas, only expressions thereof. So I can probably write a story about a girl who can alter reality, as long as I don't make her like Haruhi in any other respect. See Nichols v. Universal Pictures. (http://en.wikipedia.org/wiki/Nichols_v._Universal_Pictures_Corporation)
-
Hmm, this is interesting, because I was actually thinking of making a thread on doujinshi and copyrights sooner or later while bringing up games like "Touhouvania" and such.
Mostly because I may or may not be planning/working on something based off another huge franchise owned by Konami and etc (Konami will sue, etc) crossed over with Touhou, but I'm just so worried about these laws affecting me, since I wouldn't be selling them here as I would sell them all in Comiket or doujin stores.
Again, all but a dream atm, but just wondering about it.
-
Still waiting on an answer to my spaceship hypothetical.
-
YOU MADE A VIDEO OF YOUR NEW CAR STARTING AND PUT IT UP ON YT THERE'S 5 SECOND OF A SONG UNDER OUR LABEL IN THE CREDITS BANBANBAN
They're losing money.
YOU PLAYED A SONG BY MOZART ON YOUR PIANO AND NOW ADS APPEAR BECAUSE THE SONG IS OWNED BY MUSIC PUBLISHING RIGHTS COLLECTING SOCIETY.
(http://www.youtube.com/watch?v=0Gx-N-kdIXk)
-
Still waiting on an answer to my spaceship hypothetical.
Because I am currently drunk, I would imagine jurisdiction might arise over the firm that coordinated/financed the launch, under respondeat superior (http://en.wikipedia.org/wiki/Respondeat_superior). It may also be possible for a US court to exercise jurisdiction pursuant to a long-arm statute (http://en.wikipedia.org/wiki/Long_arm_statute), on the theory that sending copies of the infringing work to US computers constitutes minimum contacts (http://en.wikipedia.org/wiki/Personal_jurisdiction_in_internet_cases).
A claim may in the least be feasible against people viewing the fanfic, as viewing any content online of course creates a copy in RAM and in your cache. See MAI Systems v. Peak Computer. (http://en.wikipedia.org/wiki/MAI_Systems_Corp._v._Peak_Computer,_Inc.)
-
Well then! Good to know. That surprisingly makes a lot of sense.
It looks like extra-dimensional publishing is the way to go then.
-
We could theoretically DESTROY THIS DESPICABLE EXCUSE FOR A CIVILIZATION, AND BUILD A NEW ONE ON ITS ASHES!!!
But, eh, :effort:
-
We could theoretically DESTROY THIS DESPICABLE EXCUSE FOR A CIVILIZATION, AND BUILD A NEW ONE ON ITS ASHES!!!
But, eh, :effort:
Or we could do something totally crazy like participate in the democratic process, and try to elect people that will stand up for fair-use distribution rights, copyright reform, and also reform of campaign finance (which is the root of the problem, megacorporations buying out lawmakers in order to get laws adjusted to benefit themselves at the expense of the public).
-
Or we could do something totally crazy like participate in the democratic process, and try to elect people that will stand up for fair-use distribution rights, copyright reform, and also reform of campaign finance (which is the root of the problem, megacorporations buying out lawmakers in order to get laws adjusted to benefit themselves at the expense of the public).
At this point, there isn't much we can do within the constraints of TRIPS. (Our copyright term is life + 70 years, widely considered much too long, but TRIPS requires life + 50 which isn't that much better.) So it's not just a matter of domestic politics, but actually getting all the WTO member nations to sign off on a copyright rollback.
One area in which something can be done is fair use. The actual statute (http://www.law.cornell.edu/uscode/17/107.shtml) is fairly open, leaving a lot to the courts--the trick is making a more liberal reading of ? 107 fashionable to the US courts. Over the past decade or two, the federal courts--led by the Second Circuit--have come to value factor 1 (transformative use) above all others in making the fair use determination.
That's potentially helpful for fanworks, which are certainly transformative in that you're doing something different with the characters. But even under today's standards, to win under fair use you must show that you were borrowing from the original work for a different and legitimate purpose (use), and that you borrowed no more than necessary for that purpose. Under U.S. v. Gaylord (http://cyber.law.harvard.edu/people/tfisher/IP/2010%20Gaylord%20Abridged.pdf), one might argue that my Haruhi doujin makes the same use as the original work (i.e. to tell a story about a bitchy reality-warping girl.) But then, courts have been growing more receptive in terms of what kinds of uses they will credit as fair. In Blanch v. Koons (http://whatisfairuse.blogspot.com/2008/02/blanch-v-koons-fair-use-of-copyrighted.html), the defendant C&P'd a photo of some legs as part of a collage for a German art installation. He was exonerated under fair use because his use of the photo was for a different purpose (social commentary), plus he Photoshopped the legs up a bit (physical transformativeness.) Then in Perfect 10 v. Amazon (http://en.wikipedia.org/wiki/Perfect_10,_Inc._v._Amazon.com,_Inc.), Google's generation of Image Search thumbnails was immunized under fair use, because they're necessary to search engines, which are highly socially beneficial.
Even with this precedent, it's probably a ways off before courts will give my Sola bondage doujin a pass. And then the real problem is uncertainty--fair use is notoriously expensive to litigate, presenting some very murky questions of fact that require a lot of evidence and expert testimony to be trotted out for the jury. So maybe Google can bring home a big fair use victory, but your average basement doujinshika will almost certainly be forced to settle.
-
In any case, fanworks are going to keep being spread underground no matter what as long as their profile stays low.
ZUN's at least supportive of fanworks, and thus setting a better precedent from the other end of things. He knows that the more fanworks spread, the more people will be willing to buy his games and official writing and all. Too bad more people don't understand this.
-
Too bad more people don't understand this.
It's all about the moneys and greeds. "You can't make money out of my stuff because that's MY STUFF."
-
YOU PLAYED A SONG BY MOZART ON YOUR PIANO AND NOW ADS APPEAR BECAUSE THE SONG IS OWNED BY MUSIC PUBLISHING RIGHTS COLLECTING SOCIETY.
(http://www.youtube.com/watch?v=0Gx-N-kdIXk)
What the shit.
Maullar, I'm now curious about this one little Google stunt.
If copyright lasts life + 70, then unless the Doc took Mozart for a little trip and then he copyrighted Requiem less than 70 years ago while travelling through time, having died in 1791 surely every single one of his compositions' rights have expired by now, right?
Hell, there's even this website (http://www.classiccat.net/) I posted here a while ago that has a classical music database, all works contained in such database having either their copyrights expired due to the song having been composed hundreds of years ago or their composers having authorized free distribution.
All this considered, what the hell bloody claim was that on that video?
-
According to the description, the guy says the claim was apparently filed by some group called "Music Publishing Rights Collecting Society".
A quick google search turns up a bunch of discussion, and apparently they're likely a fraudulent group. Here's the first result for them. (http://decodetransmission.blogspot.com/2010/08/possible-scamfraud-music-publishing.html)
-
According to the description, the guy says the claim was apparently filed by some group called "Music Publishing Rights Collecting Society".
A quick google search turns up a bunch of discussion, and apparently they're likely a fraudulent group. Here's the first result for them. (http://decodetransmission.blogspot.com/2010/08/possible-scamfraud-music-publishing.html)
According to this YT help thread (http://www.google.com/support/forum/p/youtube/thread?hl=en&tid=1e99de510dad2c0a), it's a generic term for a royalty collecting society. These societies, like BMI (http://en.wikipedia.org/wiki/Broadcast_Music_Incorporated), ASCAP (http://en.wikipedia.org/wiki/ASCAP), and SESAC (http://en.wikipedia.org/wiki/SESAC), are an intermediary for music publishers to sell performance* licenses to radio stations, restaurants, webcasters and the like.
It's important to note that while Mozart's compositions are indeed public domain, a musical work and a performance thereof are legally distinct. You can't copyright the 9th Symphony, but you can copyright the 9th Symphony -as played by X-. That's probably what's happening here.
* Playing a song to the public constitutes a 'performance' under the copyright laws.
-
I was just reading through those pages(thanks, Thatguy), and I'm still baffled.
According to them, many original works are being claimed there. Some of them absurd ones.
According to that blog post
I read some person recorded an alarm siren and s/he was hit with a copyright notice.
Holy shit, they plagiarized Lady Gaga!
That Mozart Requiem video, too, I didn't get the chance to watch before the audioswap, but it seems quite clear that it was played by the uploader himself.
-
As you're probably already aware, Youtube automatically scans its content for copyrighted material. It's not unreasonable to imagine the algorithm is making at least a few mistakes.
Now as for why Youtube scans for copyrighted stuff in the first place--naturally, it's been under heavy scrutiny from the media companies almost since the beginning. Even moreso when internal e-mails, making quite clear that Youtube benefited from infringing videos (and didn't think much of big media in general), came up in discovery during Viacom's lawsuit (http://en.wikipedia.org/wiki/Viacom_v._YouTube). Really, Youtube's rightsholder support is likely the only reason it won the suit.
-
As you're probably already aware, Youtube automatically scans its content for copyrighted material. It's not unreasonable to imagine the algorithm is making at least a few mistakes.
Fair point, though the whole 'the corporations before the people' thing still gets a lot to me, etc.
There's no consistent way(consistent being a key word here) for a user that uploaded say, a video recording of an alarm siren, and got his ass auto-scanned and ads put up in their video, generating revenue to a third party no one even knows who is, to reach up to the service provider and get things straightened up and those ads off his user-created content.