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 later work by the first author in the same universe infringes the fanwork. Among other things, when people begin with similar premises, it isn’t at all surprising that they will end up with similar ideas — but U.S. copyright law protects the specific expression of an idea, not ideas. Even if a fan work is similar to a later work in the same universe, similarity of ideas (say, how wand magic works in Harry Potter) isn’t sufficient for a copyright claim.

However, not being able to win doesn’t erase the possibility that someone could threaten to sue. The real issue is that it doesn’t take a fanwork to generate a threat! If an author reads fan mail or online reviews, they might encounter a fan’s ideas about what should happen with the characters; if they read other books, they might encounter a storyline or character similar to a storyline or character they might later use. In fact, the typical author-versus-author infringement case involves claims that one work copied another, apparently unrelated work.

The OTW’s mission includes explaining the difference between ideas and expression. A lot of people may have the same idea about what should happen on the next season of House; but if they each write different stories expressing the idea differently, then those stories don’t infringe each other.

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 Commons, for example, has developed a multi-step process to “port” their licenses internationally by “both linguistically translating the licenses and legally adapting them to particular jurisdictions.

Ideally, we would like to develop a similar process within the OTW, but for the time being, we are happy to work with our friends at EFF when engaging in legal advocacy outside the United States. If you would like to work on non-US legal issues or education, please contact the Volunteers Committee.

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.