Alert to Podfic Makers and Fanfic Writers!

There are a number of discussions in fan circles right now regarding the Random House Audio Fan Fiction Contest being held at this year’s San Diego Comic-Con International. The publisher is offering fan fiction authors the opportunity to record their own original work of fan fiction during Comic-Con for a chance to have their work published as a downloadable audio book on their website or featured in a Random House podcast.

The Organization for Transformative Works was initially contacted by Random House in May asking if the OTW could help promote the contest through its various news outlets. At that time, we asked for additional details – including the terms of the contest and a copy of the participant agreement. Random House responded indicating that the details were not yet complete, but that it would forward the requested information once it was available. That was the last direct communication we received from the publisher two months ago.

Over the past few days, the OTW has received inquiries from fans regarding the terms of the contest, particularly the Submission Form/Release participants are being asked to sign. We suggest that participants should carefully read and consider the terms before signing the agreement. The form asks participants to acknowledge that they have no right to create their fan fiction–even fan fiction they’re not submitting to the contest–without permission from the author of the original work (for example, “I acknowledge and agree that I may not use the Underlying Copyrighted Work, in any other manner or for any other purpose.”). We think that’s not accurate, and we think it’s unfortunate that Random House isn’t fully supporting the freedom of fans to create noncommercial transformative works. Language like this, though it doesn’t bind people who don’t participate, also has the potential to increase confusion over fair use. In the future, it would be much more fan-friendly to use principles like those of Creative Commons licenses, which specifically provide that they don’t attempt to restrict fair use.

The form also says that submissions are “works made for hire,” which is a specific category in U.S. law: the creator of a “work for hire” is never considered an author; the person or entity for whom the work was created is deemed to be the author. While we aren’t convinced that it’s possible to call a submission like this a work for hire, that’s not really the issue; the form provides that even if the submission isn’t really a work for hire the fan author still gives up all her rights. The overall terms reflect the view of some authors and publishers that all transformative works inherently ‘belong’ to the publisher who bought rights to the original work. Of course even standard publishing contracts involve trading away many rights of authorship, but signing over all rights to one’s creative work is not a decision that should be entered into lightly.

The Organization for Transformative Works is always excited to see recognition of talented fans involved in the creation of transformative works. At the same time, however, it is important that fans be well-informed, especially as publishers experiment with new models and sometimes try to assert greater control over fan activities. We would suggest that interested fans read the agreement carefully and consider their level of comfort in complying with its terms.

Announcement, Legal Advocacy

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