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MotivatedSloth It is indeed super gray area. This is because whether a particular product is considered under fair use is often highly subjective and using non quantifiable metrics, such as "how transformative" it is.

MotivatedSloth But before doing so, let's take a look at the novels itself.

In my opinion, a novel in essence can be divided into 4 parts
- Plot - which is basically the storyline
- Characters - who are the driving point of the storyline
- Worldbuilding - which is the background for the characters to drive the storyline
- Glue - everything else that's added as decoration.

More or less, yes. But this is non quantifiable and will entirely come under that basis of whether something is considered to be "transformative enough" to be protected under fair use.

Of course, this would have to be debated on a work by work basis. Otherwise, it would be like Tolkien suing everyone who mirrored his image of what a fantasy elf is. (I believe I have read he defined the modern fantasy elf, but I could be mistaken)

MotivatedSloth if the product that you want to use under fair use cannot be wholesome (full) without the OG content, its not considered fair use at all. Just like watching a 30s viral vid (that's 30s long in total) to add commentary is an infringement (since one can watch the entire thing on your commentary channel rather than on the channel that owns the vid) it cannot be brought under fair use

As long as it is done under the conditions of fair use, such as critique and/or changing it's purpose enough, it can. Of course, like you've already mentioned, it's very gray, and for a reason too. You can't post a 90 minute "critique" of a movie for obvious reasons.

MotivatedSloth There are several cases of this kind of claim being successfully pursued.

Correct, but this is mostly because they were deemed not transformative enough.

MotivatedSloth Fck the service and product thing. When the push comes to shove, both fanfic writing as a product and writing a fanfic as a service are using foreign IP without the right to do so and are obtaining profits from it. It doesn't matter whether its a donation, fee, subscription or anything else. In the face of law, you are generating income basing on the copyright you do not own.

This is precisely what fair use is to protect against. Imagine if every movie production company sued any critique against their movie because it contained clips/information on its plot. They have technically used the foreign IP to create their product after all, which may be available to subscribers only etc...

MotivatedSloth Just like a company cannot suddenly come up with IphoneYay series and start selling it to the public while pretending to be a branch of apple

Obviously not, but they can create Napple and have a very similar product. The world is full of knockoff brands, many of which don't even try to be different (such as headache pills and stuff, panadol vs banadol... like, seriously?). Of course, there are fake goods too, but they are illegal.

MotivatedSloth In short words, no matter what kind of fanfiction you write, as soon as the IP holder of the OG content learns about it, they are free to sue you and take ALL the income you EVER earned from the fanfiction + penalty fee + judicial costs + judged amount. Because it was all generated with their IP as a foundation.

Basically all the IP holders know of the fanfictions. Damn, there are probably over a million Harry Potter ones alone (Edit: One of which was even 'canon-ized' by Rowling herself). As for costs, it's usually just a combination of penalty fee + projected damages to revenue + take down of work afaik. Depending on where you are getting sued, there may be paying the other side's legal fees or the American standard in which each side pays their own.

I'm not entirely sure on what is the judged amount you are mentioning.

MotivatedSloth Fck the service and product thing. When the push comes to shove, both fanfic writing as a product and writing a fanfic as a service are using foreign IP without the right to do so and are obtaining profits from it. It doesn't matter whether its a donation, fee, subscription or anything else. In the face of law, you are generating income basing on the copyright you do not own.

Just going to give a broad response to this and the rest.

Service and product, or service and goods, are two separate things legally. And until a claim is made against a particular work, or is explicitly in breach of copyright (which the host site can determine and act on), it is currently under fair use.

The general consensus is that fanfiction falls under fair use, and the gigantic number of them out there on the internet is basically testament to that fact. Whether a specific work is being exploitative of the IP's product enough to mean they are no longer protect under fair use... it's case by case basis, and the claim by the IP needs to be laid first.

Perhaps this may change in the future, but currently, all fanfiction is recognized as fair use.

It's like Elvis or Trump impersonators. They are selling their services, not a specific product. A writer is fully entitled to sell their services to write regardless as to what they are writing, even if that is fanfiction. And that fanfiction is still protected under fair use because it is not being sold.

Lol. So, this post thread went from boobs to tl;dr legals kind of quickly. :laughing:

Damn! I didn't get to see the BOOBS cause the link goes to a "Whoops!" page.

FanFan They don't care about fanfics and them using patreon. It's about originals. They don't want authors to use Patreon instead of signing a contract with them because this means they will earn no money from your novel. Nor do they like when an author is encouraged to use patreon instead for the same reason.

If a fanfic uses patreon, they honestly and probably couldn't care less because it is no threat to their potential income.

Edit: The problem people appear to have with GhostyZ is not the use of Patreon specifically, but the underhanded scam like tactics he employs to get people to subscribe to him. But no matter how contemptible that may be, it technically isn't against the rules. Content itself can be brought into question, but there are no rules against his Patreon "scam" as far as I know.

I consulted my friend, who is a lawyer, and this is what he has to say:

Well, technically, it's against the rules because they don't own the copyright to the story or the characters, so them seeking compensation would be a breach in legality. Now, does this actually stop people? No. However, you can argue that you are paying for the services of the writer, hence their writing. So they can argue that they aren't profiting off the intellectual property of another person. It's a weak argument, but it exists.

However, you can't demand s. You can't force anyone to pay for anything.

As a matter of definition, a donation is a "gift." That would be the main argument here. Is a donation a gift or a compensation when it pertains to payment of such funds for a service? Are you merely donating them, or are you paying them to provide said service? I (as a lawyer) would say, if ALL of their work is locked behind a paywall, and it's like, "here is one free chapter, if you want to read anymore, you must pay or subscribe" then I would say you are compensating them, not donating to them.

Some will use the service argument, but a smart attorney will argue the service they are providing is the providing of literature inspired by and based on the intellectual property of another.

Of course, the IP owner has to sue the guy in the first place, which is unlikely to happen, but my lawyer friend pretty much confirms that what he is doing is technically illegal. Just because he gets away with it or the IP owner couldn't be bothered to sue him doesn't make it legal.

Now, if someone just post chapters on Patreon for free, people read them and donate to him/her on the page, there is still a lot of room to maneuver, simply because you are not demanding payment or forcing anyone to compensate you. If people donate to you when you didn't ask for it, it's a gift.

This, however, changes completely when you start locking chapters behind paywalls like what GhostyZ did. Now he is actually demanding payment for providing chapters that are inspired by and based on the intellectual property of other people without seeking the original creators' permission. You literally have to pay $5 a month just to read any of the chapters...and $2 a months just to read "announcements" and update posts. If you don't subscribe, everything is locked to you. For now, nobody could be bothered to sue him because it's just not worth it. But if he starts making a substantial amount of money on Patreon or gain a significant following (maybe a few thousand donors), you can bet your a the IP owners (i.e. Dengeki Bunko or GA Bunko or Fujimi Fantasia Bunko or Shueisha or Kodansha) will come down hard on him. The problem is that, being Japanese, they wouldn't even know about English fanfiction until...yeah. You could, of course, report him to Yen Press or Viz Media or Kodansha USA, who own the rights to the English translations, but I don't think anyone is that malicious.

Also, I don't think he will be sued. Most likely they (Yen Press/Viz Media/Kodansha USA) will first file a cease and desist order and request that he takes down his fanfiction. Patreon, being the host website, will most likely comply. So it's unlikely to go to court unless this guy has made a substantial profit from his donations.

Tomoyuki You should speak with your lawyer friend again and ask him to look into closer detail on whether it is protected under fair use or not, which is what any such case would come down to. There are also surely plenty of older cases he can look into if he's really invested in it to determining the most likelyhood in whether it constitutes as fair use

Most of it is whether his particular method of putting chapters behind a subscription service for only subscribers, and using that to produce incentive counts as enough in which it is no longer protected by fair use. As all fair use law cases would go, it is about this specific work and methods employed in its use.

The moment that work is determined to no longer be under fair use, then everything changes and he is fully liable. Patreon would have to remove it as well. As for whether his work in particular is... I don't know. I personally don't think it is some great violation of fair use, but a legal case on his methods could easily go either way.

For instance, the usual route a fanfic writer would go on patreon is that you can subscribe to support the author and/or read ahead. The product itself is not being exchanged in the transaction, which is where the sharp line of fair use is drawn.

It is the same reason people can make a living off doing review videos on youtube, why they can stream gameplay on twitch (taking in donations and subscriptions), why artists can produce artwork of otherwise copyrighted characters etc...

However, and also along the same lines of what your friend is pointing out, the overwhelming majority of this material is free to view elsewhere or on that platform in one form or another. It is whether GhostyZ's methods of subscribers only/subscribe to read, counts as enough to no longer be under fair use. Similar to your friend, I would think it wouldn't be in his favor, but it is still technically not my call to make. Until a claim is made, or the platform hosting it (Patreon) determines it to not be fair use under their policy, for all intents and purposes, it is still under fair use.

Edit: But you are right in that it most likely will never go to court because there in nowhere near enough financial incentive to do so.

Edit x2: After all, fair use is the legal protection to allow people to use otherwise copyrighted material. It must, however, be in accordance with fair use guidelines.

Edit x3: It isn't black and white however. For instance, let's say I'm producing my own original content on patreon and incentivizing and putting it behind a figurative paywall. Of course, I own all rights to my work and am free to do so. Now, let's say I want to give back some more to my patreon subscribers, so I also start writing a fanfiction I was passionate about, and release it only for my subscribers.

I am not leveraging this fanfiction in order to create incentive to subscribe to me, nor am I using it in an otherwise transactional manner. I am merely releasing it to a select group of people I want to show my appreciation towards.

In this instance, despite it not being released freely to the public, I would still consider it under fair use.

Wolfick You should speak with your lawyer friend again and ask him to look into closer detail on whether it is protected under fair use or not

It is not, unfortunately. You could try to argue otherwise, but fair use only applies when a work is nonprofit and the fanfiction is free. He explained to me that if you're locking fanfiction chapters behind a paywall, there is no wriggle room for you to claim "fair use." You could try to argue that it doesn't take away any income that would otherwise go to the original author, but the fact that you're still using characters or parts of a story whose copyright you do not own for commercial purposes takes away any fair use claim you might have. Clearly, fanfiction is not educational, and the fact that you lock chapters behind "donations" already render that claim unviable in any case. He said that the only argument you can make is that the paywall is for "writing services", which he has already debunked because your provision of fanfiction chapters are based on the intellectual property owned by others.

Keep in mind, we are talking about GhostyZ's specific case here, not yours. Your service might probably be considered fair use because I don't think you're actually offering fanfiction for money, and therefore it's not commercial or profit. And I'm not about to text my friend at 6am to ask him about your specific case. Also, GhostyZ writes R18 fanfiction, which is most certainly not educational, and he writes fanfiction on My Hero Academia, Attack on Titan, and I think Is it Wrong to pick up girls in a Dungeon? None of which are available on the public domain, and all of which you need to actually purchase to read. And I don't know how the copyright owners will react to R18 fanfiction being written about their work. They might laugh it off (since Doujins are a thing and these companies don't care about what's being sold in Comiket), or they might issue a cease and desist. But the American companies might not be as sanguine, especially when they learn he earns close to $1,000 a month. Better yet, I think income earned through Patreon is not taxable, so GhostyZ doesn't have to pay tax. So if light comes on how you have a bunch of full-time writers (GhostyZ actually declares that he wants to become a full-time writer this way, and with the amount of money he gets per month, it's not difficult for him to) making a living off non-taxable income on Patreon, I think the government might even step in eventually. Not that I intend to snitch on him...

Also, fair use comes to play if I release my fanfiction for free on my Patreon page, I don't lock them behind paywalls. But if people wish to donate to me, that's considered a gift, and therefore I am protected because my fanfiction is not commercial. It is nonprofit. In that specific case, I am protected. But the caveat is that I should never ask for "donations" in exchange for releasing fanfiction chapters or making available fanfiction chapters. Donors have to give them to me willingly on their own accord without me asking them for it directly. Unfortunately, my friend explains that the moment I start locking chapters behind a paywall or making these chapters available only to subscribers, I am essentially telling the readers that, yes, I am demanding payment for a chapter of an IP that I do not own, and that's a breach in legality.

Tomoyuki What he has explained is not "debunking" the argument. He is stating that is basically the main argument you could, and would, make. Also, it is not a very strong argument in this instance, particularly due to the nature of the case.

I agree with him on this, which is why I stated I believe a judicial decision on the matter would most likely not end in his(GhostyZ's) favor. My previous statements are on fanfiction as a whole, and the general method of patreon usage, which is just to read ahead of whatever the author is writing; early access. It's enough in the grey area I don't believe it is in violation of fair use. (A court could still rule against that, but it is yet to be seen afaik)

You are also right in that by using it for "commercial purposes", it is no longer fair use.

What I am saying is that the chapters themselves have not explicitly been exchanged in the transaction, so he hasn't actually crossed that sharp line where it is automatically deemed to no longer be under fair use (and it is indeed not educational in any way)

Because of this, it is not up to us to determine whether the product, his fanfiction, is being used commercially.

I am not even in disagreement with your viewpoint on his work and the nature pertaining to it, I just consider it from the perspective that we are not the jury to determine it as not under fair use. And that until a proper claim is made against it or the platform it is hosted on acts upon it, whilst it probably isn't under fair use, it is essentially treated as it is. This is just GhostyZ's work, not all fanfiction. Just to be clear. (You can definitely report it to patreon that you believe this content is not under the guidelines which constitute fair use due to how he is leveraging it, but they still need to decide and act on it at the very least)

As for taxable income. Ngl, I don't know a lot about taxation.

Technically, a "donation" by nature is non taxable. It also means people "donating" to authors can also claim it off their tax... Well, I don't believe the tax agency are going to chase down all these people earning money off Patreon, nor anybody claiming a $50 deduction from their tax.

How they proceed would be entirely up to their discretion, and rather than chasing all the ants around for potential tax evasion, they would go after the motherload, which would be Patreon itself. Of course, that would be an entirely different conversation by people more knowledgable on taxation. I don't believe Patreon's lawyers would leave them vulnerable to liability in such a blatant way though.

Tomoyuki But the caveat is that I should never ask for "donations" in exchange for releasing fanfiction chapters or making available fanfiction chapters

You're more than free to ask for donations, you just can't leverage of your fair use material in order to acquire them. Well, you can, but if the IP holder starts throwing salt rocks at you, you will most likely be in trouble haha.

As for author's being offended by R18 fanfiction. As you said, there are countless doujinshi out there. Many of these authors are degenerates themselves. I highly doubt the vast majority of them care. Actually, when the hololive girls got doujins made of them, they were excited. One of them even did reviews of material on herself

XDDDDD

Dear god that still makes me laugh.

Wolfick yeah, definitely. I was talking about GhostyZ in particular, not fanfiction in general.

Also, unless a significant portion of the population earn substantial income from Patreon, the government is unlikely to do anything about it because...quite frankly, it's time-consuming and just not worth it. So Patreon is definitely safe. If anything does happen, it'll be more of reformative measures, not a "take down patreon" or "sue Patreon content makers" thing, like changes in policies. Sort of like Facebook and info-gathering policies, I think. You don't sue the site, you implement changes. Right now, I don't think it's substantial enough, but if it does become a big enough thing, governments will start looking at it. Or maybe they won't, but given how major websites or social media such as Facebook, Youtube, etc. have become the subject of policy changes, I won't be surprised if they do.

How do I put it...if it becomes an issue, they'll just release an announcement telling everyone there will be policy changes and give the content creators time to change their content to suit the new policies. Not immediately suing people and banning them from posting content. I don't mean people will get into trouble, I just meant they will pressure Patreon to make policy changes.

Wolfick You're more than free to ask for donations, you just can't leverage of your fair use material in order to acquire them. Well, you can, but if the IP holder starts throwing salt rocks at you, you will most likely be in trouble haha.

That's what I meant, I mean, I can't tell my readers, "if you want to read the next chapter, you must subscribe to my Patreon for $5 a month." However, I can ask for donations on my Patreon page. You're right about that. Sorry for not being clear.

Tomoyuki

I was actually mistaken in that donation I mentioned. I was thinking of donation to charity, which can be a deduction. As for standard donation, from what I remember, by donating money, you are paying tax on that amount on your income, therefore the person you are sending it to does not have to pay tax on it (this avoids people paying tax twice on the same amount of money aka "this is money in which tax has already been paid on")

I remember this because I used to pay editors via donation, and I paid tax on that money so they didn't need to.

There may be other provisions on it and tax loopholes etc... but yeah, get a tax consultant friend for that haha