I’m a professional creator. Do I need to avoid reading or acknowledging fanworks based on my own works?
This is essentially a personal decision. If it will upset you to read, view, or watch fanworks based on your works, then don’t. Authors are sometimes advised to avoid reading or acknowledging fanfiction transforming their own work, as it is in theory possible that an author could read a story, go on to write something similar, and face a claim by the fan that they copied the fan’s work. There are many reasons to discount this risk, the least of which is that U.S. case law is all in the first author’s favor: no court is going to be receptive to a claim that a… Read more
If my work is published in the OTW’s archive, what applies, my local laws on fair use, or US law?
Because the OTW and its servers are based in the US, we believe that US law applies to content in the Archive of Our Own, even if the author is a resident or national of a different country. However, different countries make different claims about the reach of their laws. Your country of origin’s laws are likely to apply to you. It is possible that some sections of the OTW policies are broader, or perhaps more restrictive, than a specific jurisdiction’s laws. Other organizations that serve an international audience are dealing with the varying legal regimes under which their users live, work and play. Creative… Read more
I don’t live in the US. Is there an equivalent to fair use in my country? How might it be different from fair use in the US?
Most countries have exceptions to copyright rights for various purposes. In Europe, the more common term is “fair dealing.” Countries differ in their treatment of the scope of copyright and exceptions. For example, in Canada, parody is not a specifically recognized defense to copyright infringement, although it can be fair dealing in appropriate circumstances. Australia has limited protections regarding the freedom of communications. The Gowers Review of Intellectual Property in the UK is expected to bring about changes in UK laws regarding parody and transformative use. In other words, it’s complicated. And it’s ever-changing.
If fanfiction is legitimate, wouldn’t that also mean that publishers or studios could produce derivative works without compensating the original authors?
No. Profit matters, and the degree of transformative quality matters: telling stories around a campfire, freely sharing nonprofit fanfiction, summarizing plot in a book review, or making a documentary film about fans is not the same as a major commercial derivative enterprise like making a major TV miniseries out of a novel.
What are your plans for a test case?
We have no plans for a test case. We are focusing on building relationships with legal advocacy groups like the EFF and developing legal resources of our own. One of the most exciting and helpful developments in copyright of late has been the development of “best practices,” principles and procedures establishing what constitutes fair use in the judgment of a community of creative users. Best practices can successfully defend fair use rights even without litigation—see the statement of best practices in fair use. It is our position that, at a minimum, noncommercial, transformative fanworks are fair use, and the OTW will defend that position, just… Read more