fwiw, I wrote my thesis on this and fic is neither illegal nor illegal â itâs a legal grey zone that has never been tested in any court (in the US, unless thereâs an explicit law about something, we function in a common law system, meaning most of the rule of law in our country is a mish-mash of court precedents, differing and debating between jurisdictions, like this this case). There has never been a lawsuit by the copyright holder of a commercial, fictional work, against someone producing a non-commercial, derivative fictional work; thus, there is no case law about fanfic and weâre all living in the grey zone. There have been a few lawsuits from the copyright owners of commercial, fictional work against commercial, fictional derivative work; one lawsuit from the copyright owners of commercial, fictional work against a commercial, non-fictional derivative work.
But the fanwork we all make every day *may* be protected under fair use; fair use is the right the hire a lawyer, being an affirmative defense, and is rarely tested. The other affirmative defense folks might be familiar with is self-defense in the case of a murder â you say âyes, your honor, I did murder him, but itâs ok for x, y, z, reasons.â Then the trial is about deciding if x, y, and z, reasons are good enough, not if you did the murder (since you had to admit it to use the affirmative defense). Using fair use is like saying, âyes, I did infringe on their copyright, but I believe it was acceptableâ and then you have to pay lawyers about it.
I believe that fair use for non-commercial works should be assumed, and the burden should be on the copyright holder to prove harm and infringement, rather than on the non-commercial producer to prove they are covered by fair use.
But, given that thereâs no case law, and no explicit laws, tons of high-powered lawyers for commercial content producers like to make stuff up, like to send scary cease and desist letters, like to threaten fans who donât have the money to fight back. Most major content producers have decided that terrorizing their fans is Bad Business Practice and theyâve stopped calling us all pirates and thieves and are instead madly catering to our whims (often, not always); but thatâs a marketing trend, not an indication of any actual change in the status of fan works.
If youâre interested in supporting folks working to change copyright law or protect fans within it, the Electronic Frontier Foundation and the Organization for Transformative Works are excellent places to spend a bit of money, if youâre flush. Our current copyright system isnât fulfilling its constitutional mandate to encourage the arts and sciences, since some of the most amazing creative work in both spaces is happening in exactly the grey zones we all operate in, which is not how it used to be and not how it should be.
</copyright-soapbox>
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