Fandom/Fanfic Sideblog

Because here’s the first thing: fanfiction falls under fair use, for reasons, which is why so much of it exists and you don’t hear many stories about people being sued for it or creators coming after fans anymore. You’ve technically been able to post fanfic of Anne Rice stuff, but here’s the second thing: although plenty of people did post anyway, people often didn’t out of either respect for her wishes (because she was expressly against fanfic authors writing about her characters, a stance I’m given to understand she reversed in her later years) or the fandom genetic-memory fear that she would personally try to come for them.

But here’s the third thing: the estate can’t come for you directly unless you list direct contact info on AO3. Because what are they going to do? Leave a comment with a takedown notice, with no way to know if you have notifications turned on? No! AO3 has no native way to directly contact any of the authors archiving their work there. If they want to get to you, they have to go through AO3, and as long as you’re following AO3’s rules (which again are literally in place to protect you against exactly this kind of thing and specifically protect you from this actual person/estate, as her history is part of the reason AO3 exists) AO3 is going to tell them they have no ability to make you take it down. You actually won’t hear from the estate for posting on AO3, because AO3 would be the ones dealing with it for you.

So like. Take a moment and appreciate the folks who are posting freshly because they feel safer with her gone, sure. But also take a moment to appreciate that AO3 exists and protects us, and has been protecting us from their first day.

whether you make money from it or not doesn’t change a thing and i don’t know AO3 but unless they specifically have some kind of litigation fund, precisely for this, i don’t know why they would be uniquely nonresponsive to dmca

Additionally, when I said fanfiction falls under “fair use” I wasn’t just saying it was fair game. The USA (which is where this matters because that’s where Anne was and where I’m pretty sure AO3 is) has a doctrine within copyright law that allows limited use of copyrighted material without having to acquire permission from the copyright holder. Fair Use is used as a defense to copyright infringement claims on some things that might otherwise be considered infringement- like fanfiction.

And it’s even ABLE to be used as a defense wrt fanfiction because one of the things used to defend fanfiction is that it is transformative/derivative.

Works of fanfiction are more likely to constitute fair use if they are “transformative” with respect to the original work, if they are non-commercial, if they appropriate relatively little of the original work, and/or if they do not tend to detract from the potential market for or value of the original work.

Which is why being not-for-profit isn’t, as you seem to think, not important. It’s actually quite literally one of the backbones of why fanfiction is typically considered fair use and able to be produced and shared publicly without actually breaking copyright laws.

As for the AO3 stuff, there’s an entire article on Wikipedia with more and more accurate explanations about what happened and why, but here’s an important excerpt of it, with bold added by me for the deeply relevant bits:

[In 2007], a group of fans who engage in creating fan works and are part of the larger fan community founded the Organization for Transformative Works (OTW).[37] OTW has since advocated the legitimacy of fan fiction due its transformative nature. OTW’s position is that fan fiction and other fan labor products constitute copyright fair use under 17 U.S.C. § 107 because they add “new meaning and messages to the original” work,[38] and thus fall under the exemption to U.S. copyright law the Supreme Court defined in Campbell[39] and which was later revisited and followed in Suntrust.[40] OTW’s vision includes seeing “all fannish works recognized as legal and transformative and … accepted as a legitimate creative activity.”[41] Toward this end OTW works to educate fan writers and published writers about copyright laws, particularly the open legal questions around fan fiction and other fan works.

OTW also maintains its own fan fiction archive, the Archive of Our Own, commonly called AO3. All fan fiction on the site is recognized as non-profit derivative works.[42] 

It’s not that AO3 is “unresponsive” to DMCA/copyright notifications. What I meant was that the org that runs AO3, the OTW, is willing and ready, legally, to go to bat for fandom and for the rights of fanfiction authors to produce and publicly share fanfiction without profit (and are actually even working to change copyright laws to specifically protect fanfiction authors). If you’re following the rules AO3 set forth and someone wants to come for something you posted on AO3, they will almost certainly have to go through AO3’s legal dept, and AO3 is ready for them. Because the OTW knows that when someone comes for one of us, they come for all of us.

So… as long as we sticking to the rules of fair use, CAN someone try to come for us on AO3? Enngh. Well, maybe you’re right, they can try, I suppose- if they want an expensive headache that is very likely to go nowhere… but I don’t think even the rat has crossed that boundary.

They have a litigation TEAM precisely for this.

They are indeed willing to be nonresponsive to a DMCA notice that comes down to “this is fanfic of my work and I believe that infringes my copyright.” (They will respond to a DMCA notice that’s “this is my work, which I wrote, and someone else has posted it here without my consent.”)

And note that: in 13+ years of activity, they have faced ZERO lawsuits.

Not a single fanatic author, not a single media corporation, not a single band or recording company, has filed a copyright infringement suit aimed at AO3.

Huh. Lookit that. As soon as a fic archive was willing to say “um, no, I don’t think that’s illegal; if you think it is, meet me in court” - they all backed down.

I was involved in the DCMA hearings that gave fan-made music videos protected status as an official fair-use exception to federal copyright law!

The lawyers who defended fanvids at that hearing are on the OTW’s legal team, and in fact helped found the OTW/AO3.

One of my old fanvids [x] is directly cited in the Library of Congress’ official recommendation [x] (page 60 footnote 213) dictating how fair use laws should be applied in their 2010 ruling [x]:

Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies AGENCY: Copyright Office, Library of Congress. ACTION: Final rule ________________________________________________________ SUMMARY: The Librarian of Congress announces that the prohibition against circumvention of technological measures that effectively control access to copyrighted works shall not apply to persons who engage in noninfringing uses of six classes of copyrighted works. EFFECTIVE DATE: July 27, 2010s. […] III. The Designated Classes A. Motion pictures on DVDs that are lawfully made and acquired and that are protected by the Content Scrambling System when circumvention is accomplished solely in order to accomplish the incorporation of short portions of motion pictures into new works for the purpose of criticism or comment, and where the person engaging in circumvention believes and has reasonable grounds for believing that circumvention is necessary to fulfill the purpose of the use in the following instances: • Educational uses by college and university professors and by college and university film and media studies students; • Documentary filmmaking; • Noncommercial videos.

Wdym you want censorship for a literal ARCHIVE are you fucking stupid

Ao3 was literally founded to preserve works that were largely getting taken down due to censorship

Censorship is the opposite of what Archive of Our Own stands for

The TAGS and WARNINGS are there for a REASON. Use them and stop complaining

The universal rule—don’t like, don’t read