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.
. Because 8 hours earlier when I reported too, it was still up.
