Since this gets reblogged a lot with just the link to the original thread, and since Twitter is a dumpster fire and the original thread might die a horrible death at any moment, hereโs a text copy of the whole thing.
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I see the โAO3 should let us make moneyโ takes are going around again, so as a copyright attorney, Iโd like to again provide some information about fanfiction and fair use.
In the US, the reason we can create fanworks without getting sued is the fair use doctrine. A lot of you are probably familiar with this - it allows us to use existing IP in limited contexts (i.e., when the work is โtransformativeโ)
What most people donโt know about fair use is that itโs an affirmative defense. An affirmative defense is used when you DID violate the law, but the law provides exceptions where thatโs okay.
All fanworks are infringing by default. When you invoke the fair use defense, youโre saying, โYes, I did infringe on this copyright, but itโs okay because x, y, and z.โ
I think this is something a lot of authors and artists donโt realize.
When you write fanfiction or draw fanart, you are engaging with someoneโs copyrighted work. Youโre allowed to do this, but you have to understand that youโre doing it with certain rules that need to be followed.
Two of the big factors in determining whether you can use the fair use defense are:
- whether you were paid
- how much of the original work you used
The 1st is obvious. Itโs HUGE.
The 2nd is, unfortunately, why fanart is generally more acceptable than fanfic when it comes to copyright. Fanart captures a single moment while fanfic uses characters, settings, themes, etc. Itโs more drawn out.S
So saying โbut fanartists make money!โ doesnโt work. The analysis is completely different - fair use is a balancing test, and writing v. art tips the scales in different directions.
Do I agree with this? No. Fanwriters should be able to make money! But thatโs how the law is.
Back to the 1st factor. There are a lot of creators who are fine with fanworks now, but theyโre Only fine with it because fanfic is free. If that changes, we would most likely see more lawsuits.
As a non-profit, AO3 is able to face the world and say โall our fanfic is free.โ
Their policy is in place so that theyโre able, in good faith, to certify that all of the fanfiction on their site is unpaid. Itโs a MASSIVE boost for the fair use defense. It means that if anyone sues the site or an author on the site, theyโll have a much harder time of winning.
I wonโt tell you not to include ko-fi in your twitter bios or to tweet fanfic links with tip jars, I just want everyone to understand why ao3 has this policy.
Because heres one other thing more people could understand: lawsuits are EXPENSIVE. Especially copyright suits.
Itโs really a gray area whatโs allowed and what isnโt in terms of fanworks, but the point is, if someone sues you and you win, it could still cost you A LOT OF MONEY.
What ao3 is doing isnโt only to protect you legally, itโs to make sure that no one even TRIES to sue you. So yes, they are being more cautious than the law necessarily requires, but in this case, caution is a very good thing.
(this thread is for educational purposes only, itโs not intended to be legal advice, etc.)
This is already getting some RTs so: Iโm a fanfic author myself, but I also write original fiction!
(Another addendum, sorry: as Iโm licensed in the US and ao3 is us-based, this is all focused on US law).
A great addition for folks outside of the US:
@ting_jz
Adding to thread as an Aussie lawyer who does a lot of ยฉ: fair use does not apply around the world. Australia, Canada, UK and other jurisdictions use fair DEALING which is narrower than American fair use exception. That means even less legal room for error and risk taking.
Fair use: four factors to weigh up, one of which is how your fanfic affects the potential market or value of the ยฉwork.
Fair dealing: your fanfic must be done for a very specific purpose listed in legislation (eg, criticism/review) and also be fair in all the circumstances
The certain rules for engaging in fan creation are both legal rules under copyright, and โindustry standardโ ie what the professional creators and media folk who own the IP find acceptable.
Fan creators using intellectual property for fun and little to zero๐ฐis much easier for IP owners to ignore or even tacitly accept.
Start making serious money from or negatively impacting intellectual propertyโnot just ยฉ but also โข๏ธโand the lawyers will send cease and desists.
