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.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?
