itâs not just about maintaining nonprofit status. (i question if thatâs even applicable here, since the profits in question donât go to the organisation, but i know very little about nonprofit law. just a gut feeling.)
the actual point is, they run a legal services organisation for fans who get into legal trouble. they literally exist for the purpose of helping you not get into legal trouble. profiting from fan fiction very much opens you up to the possibility of getting into legal trouble. theyâre not going to let people do things on their website that they know will land them in exactly that trouble.
and to be clear, just because everyone who slaps a patreon button on their tumblr isnât getting sued, doesnât mean they arenât doing something for which they could be sued.
let me say it again:Â profiting from fan fiction very much opens you up to the possibility of getting into legal trouble.
use of other peopleâs characters is subject to copyright law. the general principle that makes downloading a movie or a song piracy also applies to the use of a character, assuming certain factors such as uniqueness.
how fan fiction has come to scrape by in the past: by not being a commercial enterprise.
in contrast, for use music, video, images incorporated into new works: by being significantly transformative.
these two factors, commerciality and transformativity, are considered side by side. the greater the transformativity, the less weight commerciality will be given. if something is highly transformative and non-commercial, then itâs almost certainly fine. down the other end, if itâs not at all transformative and commercial, forget it.
itâs a matter of judgement as to what degree of transformativity there is in the work that will push it over the line to overcome the general prohibition against commercial use. but fan fiction in the truest sense is barely transformative. in fact the goal is to come as close to copying a character as possible.
an analogy with the use of music: a cover band, despite every part of the performance of the song being done by that band, is still playing a song that was created by someone else. you, the fic writer, as covering someone elseâs character.
the cover band you see at your local bar? they, or the local bar itself, have paid a fee to obtain permission to play that song. (even if they were playing for free they would still have to obtain permission, because any public performance of copyrighted music is prohibited.) in contrast, use of a line from one song in another another song that uses the line for parody? fine (Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994)). letâs call that the AU with the names changed, the location different, and everything about that characterâs backstory is gone. they just look like the actor and have a dialogue pattern that matches.
the better you are at writing a character in character, ironically the more likely you are to violate copyright law. and thatâs why the commercial factor becomes incredibly relevant.
basically, donât get paid, keep being cool with the law*.
*this is not an endorsement of the principles of copyright law itself. this is about what that law is and how it works.
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