Wolfick Fair use is a super grey-area.
While I might be wrong here, 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. There are several cases of this kind of claim being successfully pursued.
Now, let's look at the fanfictions.
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.
Fanfictions can start from using just worldbuilding, then there are those who take the characters as well.
Now, let's look at a certain group of authors (Btw, Tolkien was one of them). Some authors are not writers per se, but avid worldbuilders that write novels to share the worlds they created. To bring Tolkien to the example, its often jokingly said that he wrote LotR series just to flex the languages he created for it.
That means, if you were to write a basic fanfiction, one using ONLY worldbuilding, and wrote it from the novel created by a worldbuilder, then you would be taking the most important part of the novel for yourself (the background, the rules of the world, the nations, the predetermined beliefs and all) and writing a product on it.
And that's where the crux of the problem lies. ANy author can claim that they are worldbuilder, making any fanfiction illegal even with the Fair Use, due to the fact that in order to write a fanfiction, you need to infringe of the most important part of the greater whole of the novel.
To put it in yet another example, imagine a company wanting to create a phone. But since they can't or don't want to be bothered with the groundwork, they take the newest iPhone, gut its insides out, change the outer cover and release it as a new phone. While looks are important part of the iPhone (and are not replicated in the fake) the insides are still protected by the IP and patents, making what said company would attempt illegal.
That means, no matter what, all fanfictions can be treated as IP infringement. As long as they are free of charge, not an literal copy and all, no one will pay any mind to them (that is, if they do not result in loss for the IP owner). But the thing is...
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.
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.
And it doesn't matter how much of it will you use.
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, you can't benefit in any way or form from someone else IP. Because the income you create isn't sourced from your skills and efforts alone. You do not need to promote the fanfic, you do not need to promote the brand. You just take the existing fanbase that someone had to cultivate first, and attempt to leech on it for your own benefit.
Ah, whenever I used 'you' I didn't mean You particularly, but the person writing fanfic. Take it as my style of writing .
