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15 years ago
AKA, Look What They've Done To My Song
There's a storm raging on the Internet. It's one of many drama-fests in the ceaseless and anonymous debate that is the Internet--but one that you as an author or an artist might like to consider a few points from.
The meat of the matter, as it came to my attention, is Fan Fiction.
Specifically, fan-fiction and any unauthorized derivative works created using another authors characters or universe. Many authors take offense to the idea of fan-fiction for a multitude of reasons. Others don't.
This whole business caught my eye on several authors' blogs beginning with Diana Gabaldon, author of the OUTLANDER series. She posted her views on fan-fiction, namely: she finds it immoral on top of it being illegal. All hell breaks loose on the Internet (no surprise) and the floodgate's open with agreement, debate, b'awwing and "I don't know who you are but I came here just to yell at you," types of people. George RR Martin (on his own blog) threw in his 2 cents, also disdaining fan-fiction and inviting some thoughtful debate.
My opinion is simple: as an author and the original creator, it's your call the extent you let other people play in your sandbox.
Tough titty if an author doesn't want you to write your astral plane tentacle rape alternative ending to their book.
But wait, you want to say! I have only good intentions when I write fan-fiction--none of this tentacle rape you fear so much.
George RR Martin spelled it out pretty well in his latest entry on the subject--all monetary what-not and legalese aside, the heart of the matter is love, for both sides. Author's characters are akin to their children, and who can know their mind better or be more protective of them? Even if you really love my kid and would take great care of them, I'm still not going to let you take them home with you, sorry.
Fan-fiction writers do it out of love of the characters, too, of course. Maybe they have innocent intentions, like what if so-and-so didn't die, or ran off to marry someone else, or what if Krypton never blew up, or Aslan comes to tea in London or it's Moby Dick from the whale's perspective and befriends Ahab, etc. Even so, as GRRM points out--it's still a fakery. It isn't "real," for however real you can argue a fictional character to be.
To me, when an author writes a true and engaging story, one you can believe, even if just for the short while you're turning the pages--they also owe us the duty to 'keep it real,' within their means. That involves taking turns you can't always be happy with, because life usually doesn't play out exactly as you wanted. You don't always get the girl. Characters suffer. They die, they fall apart, they marry the wrong person, they loose everything, but a good author gives us a rebirth of spiritual ideals, or a changed man, or maybe even a changed reader.
Fan Fiction, for the most part, seems to me to turn a true and tense relationship or situation into sparkly-vampire fluff. Romeo and Juliet didn't really die, they live in New Jersey now with a bunch of kids and a golden retriever. Mulder and Scully do the dirty in the first season and the rest of the show is about their alien baby-sitter. Harry marries Hermione but they only produce Muggle children. Ilsa Lund doesn't get on the plane, never regrets it and is fabulously happy with Rick until the end of their days--they raise poodles and become renowned restaurateurs in Casablanca. *dies a little inside*
So, for me, fan-fiction is... meh. Even if it's well written, it isn't real, has no emotional impact and doesn't interest me in the slightest. It's like those cheesy "it was all a dream" endings. Empty.
But this isn't what I really wanted to tell you.
My opinion on this doesn't amount to a hill of beans, and is, after all, just another Opinion-on-the-Internet™.
What I wanted to tell you, dear author, artist, creator, is this--
If you willingly let your creation enter the public domain and do not defend it as your intellectual property, you can potentially loose your copyright.
So if you ever see your artwork, story or your -original- characters, (etc.), being used without your consent or in a manner you are not comfortable with, it might behoove you to at least send a DMCA notice to a website host or politely remind an innocent offender of your rights.
And no, that doesn't mean if it's on the Internet it's in the free and public domain. What that means is if it's being used in a manner which you do not want it being used in, correct it (or at least make the motion to correct it) or someday, you won't have a legal leg to stand on when it really matters. Basically, in court, if Joe-Tracer takes your picture and makes a t-shirt of it, sells this t-shirt at the next World Cup, makes a million dollars and it comes to your attention when you see him on a talk show barking about his creative genius for coming up with your design--well, if you let that design circle the Internet, let friends tweak it--then later strangers--make spoofing designs and LolCat pictures with it, let some guy illegally make posters of the picture off his 1987 dot-matrix printer and shrugged it off as such "small-scale" theft, then when you go into court and froth and rage and say that World-Cup shirt is mine! Joe-Tracer's lawyers (he can afford very nice lawyers now) can point out that you orphaned your work and left it to fend for it's lonesome on the distant shores of the Internet. That's an extreme dramatization of course, but you get the gist.
The old dinosaur of VA forms finally entered the year 2000 and you can register works (or collections of works) via the Internet through www.copyright.gov if you feel you have something suitable to register. (I'd say any clever graphic design work and comic collections, especially webcomics, are worth considering to register. It does cost a little money, but you can do lump volumes of work in one registration. The downside of this is it's more difficult to pull one aspect out of the registered collection-- for instance, if you wanted to sell the rights to one character from your comic, you have to split the volume and it's a lot of red-tape and e-paper.)
Also, yes, soon as paper touches pencil you own the copyright of that scribble. However, officially registering a work with the copyright office will give you an "on the record" date of creation and ownership, which can ease a legal battle (though is not imperative to winning one). Hopefully, you'll never ever face a legal battle over copyright, since a copyright lawyer who will take a case is very hard to find, and of course, very expensive.
Lastly, remember that anything you put online will get passed around and that's what the Internet is about--sharing. Simply put, don't want that to happen, don't post it. However, having a lot of eyes seeing your stuff only increases your fanbase...so the benefits often outweigh the bad. For every ten people who will pirate your book, one more person will buy it.
Just keep an eye on where your artistic children end up. Keep them out of trouble if you don't want them to get too far beyond your control, otherwise, well-- share and share alike, I suppose.
There's a storm raging on the Internet. It's one of many drama-fests in the ceaseless and anonymous debate that is the Internet--but one that you as an author or an artist might like to consider a few points from.
The meat of the matter, as it came to my attention, is Fan Fiction.
Specifically, fan-fiction and any unauthorized derivative works created using another authors characters or universe. Many authors take offense to the idea of fan-fiction for a multitude of reasons. Others don't.
This whole business caught my eye on several authors' blogs beginning with Diana Gabaldon, author of the OUTLANDER series. She posted her views on fan-fiction, namely: she finds it immoral on top of it being illegal. All hell breaks loose on the Internet (no surprise) and the floodgate's open with agreement, debate, b'awwing and "I don't know who you are but I came here just to yell at you," types of people. George RR Martin (on his own blog) threw in his 2 cents, also disdaining fan-fiction and inviting some thoughtful debate.
My opinion is simple: as an author and the original creator, it's your call the extent you let other people play in your sandbox.
Tough titty if an author doesn't want you to write your astral plane tentacle rape alternative ending to their book.
But wait, you want to say! I have only good intentions when I write fan-fiction--none of this tentacle rape you fear so much.
George RR Martin spelled it out pretty well in his latest entry on the subject--all monetary what-not and legalese aside, the heart of the matter is love, for both sides. Author's characters are akin to their children, and who can know their mind better or be more protective of them? Even if you really love my kid and would take great care of them, I'm still not going to let you take them home with you, sorry.
Fan-fiction writers do it out of love of the characters, too, of course. Maybe they have innocent intentions, like what if so-and-so didn't die, or ran off to marry someone else, or what if Krypton never blew up, or Aslan comes to tea in London or it's Moby Dick from the whale's perspective and befriends Ahab, etc. Even so, as GRRM points out--it's still a fakery. It isn't "real," for however real you can argue a fictional character to be.
To me, when an author writes a true and engaging story, one you can believe, even if just for the short while you're turning the pages--they also owe us the duty to 'keep it real,' within their means. That involves taking turns you can't always be happy with, because life usually doesn't play out exactly as you wanted. You don't always get the girl. Characters suffer. They die, they fall apart, they marry the wrong person, they loose everything, but a good author gives us a rebirth of spiritual ideals, or a changed man, or maybe even a changed reader.
Fan Fiction, for the most part, seems to me to turn a true and tense relationship or situation into sparkly-vampire fluff. Romeo and Juliet didn't really die, they live in New Jersey now with a bunch of kids and a golden retriever. Mulder and Scully do the dirty in the first season and the rest of the show is about their alien baby-sitter. Harry marries Hermione but they only produce Muggle children. Ilsa Lund doesn't get on the plane, never regrets it and is fabulously happy with Rick until the end of their days--they raise poodles and become renowned restaurateurs in Casablanca. *dies a little inside*
So, for me, fan-fiction is... meh. Even if it's well written, it isn't real, has no emotional impact and doesn't interest me in the slightest. It's like those cheesy "it was all a dream" endings. Empty.
But this isn't what I really wanted to tell you.
My opinion on this doesn't amount to a hill of beans, and is, after all, just another Opinion-on-the-Internet™.
What I wanted to tell you, dear author, artist, creator, is this--
If you willingly let your creation enter the public domain and do not defend it as your intellectual property, you can potentially loose your copyright.
So if you ever see your artwork, story or your -original- characters, (etc.), being used without your consent or in a manner you are not comfortable with, it might behoove you to at least send a DMCA notice to a website host or politely remind an innocent offender of your rights.
And no, that doesn't mean if it's on the Internet it's in the free and public domain. What that means is if it's being used in a manner which you do not want it being used in, correct it (or at least make the motion to correct it) or someday, you won't have a legal leg to stand on when it really matters. Basically, in court, if Joe-Tracer takes your picture and makes a t-shirt of it, sells this t-shirt at the next World Cup, makes a million dollars and it comes to your attention when you see him on a talk show barking about his creative genius for coming up with your design--well, if you let that design circle the Internet, let friends tweak it--then later strangers--make spoofing designs and LolCat pictures with it, let some guy illegally make posters of the picture off his 1987 dot-matrix printer and shrugged it off as such "small-scale" theft, then when you go into court and froth and rage and say that World-Cup shirt is mine! Joe-Tracer's lawyers (he can afford very nice lawyers now) can point out that you orphaned your work and left it to fend for it's lonesome on the distant shores of the Internet. That's an extreme dramatization of course, but you get the gist.
The old dinosaur of VA forms finally entered the year 2000 and you can register works (or collections of works) via the Internet through www.copyright.gov if you feel you have something suitable to register. (I'd say any clever graphic design work and comic collections, especially webcomics, are worth considering to register. It does cost a little money, but you can do lump volumes of work in one registration. The downside of this is it's more difficult to pull one aspect out of the registered collection-- for instance, if you wanted to sell the rights to one character from your comic, you have to split the volume and it's a lot of red-tape and e-paper.)
Also, yes, soon as paper touches pencil you own the copyright of that scribble. However, officially registering a work with the copyright office will give you an "on the record" date of creation and ownership, which can ease a legal battle (though is not imperative to winning one). Hopefully, you'll never ever face a legal battle over copyright, since a copyright lawyer who will take a case is very hard to find, and of course, very expensive.
Lastly, remember that anything you put online will get passed around and that's what the Internet is about--sharing. Simply put, don't want that to happen, don't post it. However, having a lot of eyes seeing your stuff only increases your fanbase...so the benefits often outweigh the bad. For every ten people who will pirate your book, one more person will buy it.
Just keep an eye on where your artistic children end up. Keep them out of trouble if you don't want them to get too far beyond your control, otherwise, well-- share and share alike, I suppose.
However, an artist or author's creation is their livelihood. I'm going to use an example I used on another comment:
For instance, let's say I write a comic called "Mongo and Jack." Someone approaches me and wants to write a story about Mongo. "Sure!" I say, so they do. It's great, they write more, they expand my Mongo and Jack universe, make their own characters, then they publish it. Now, it's time for the Major Motion Picture, and ... well, I don't see a dime of royalties, or maybe just a paltry penny because I can be traced back to making up the name of the universe it's set in...but nothing else. I've lost control of my creation.
The Organization For Transformative Works (OTW) is a non-profit organization that advocates for the transformative and legitimate nature of fan labor activities, including fan fiction, fan vids, anime music videos, and real person fiction.
Good on you, Naomi.
However, it's easy to argue for the underdog when you've already sold the movie rights to your books to Peter Jackson. I just think the young and budding talents of the world, one's who don't get their feet wet by writing in someone else' universe, shouldn't be in a position to loose creative control of their fledgling worlds. They should at least be aware that if their friend starts his own comic as a derivative, then that friend's cousin might pick up the reigns, then suddenly, who really made what?
I think there is both genius in creating from nothing, and potential genius expanding on a previously established idea. But both people get to have rights, and one is ultimately a derivative of the other.
"Most of us laboring in the genres of science fiction and fantasy had a lesson in the dangers of permitting fan fiction a couple of decades back, courtesy of Marion Zimmer Bradley. MZB had been an author who not only allowed fan fiction based on her Darkover series, but actively encouraged it... even read and critiqued the stories of her fans. All was happiness and joy, until one day she encountered in one such fan story an idea similar to one she was using in her current Darkover novel-in-progress. MZB wrote to the fan, explained the situation, even offered a token payment and an acknowledgement in the book. The fan replied that she wanted full co-authorship of said book, and half the money, or she would sue. MZB scrapped the novel instead, rather than risk a lawsuit. She also stopped encouraging and reading fan fiction, and wrote an account of this incident for the SFWA FORUM to warn other writers of the potential pitfalls of same.
That was twenty years ago or thereabouts, but that episode had a profound effect on me and, I suspect, on many other SF and fantasy writers of my generation. "
But honestly, that story of GRRM's is not isolated to fan fiction. If you read *any* amateur fiction (or at least admit to it), you run the risk of a story duplicating what you've seen. This is one reason I'm very reluctant to read stories people send me to ask their opinions on.
Unless there's correspondence between you and the fan, there's very little the fan can do to prove that you've read their story to the satisfaction of a court of law. However, I understand GRRM's position, and certainly, as you say, any author is well within his or her rights to request that a fan not write fan fiction. But I don't think authors should let themselves be scared away from it if it's something they're okay with otherwise.
There's always a whole lot of middle ground people sometimes forget or never consider. Your approach is very interesting. :]
I suppose, however, that you could easily write a contract between two or more parties that would negotiate rights along those lines.
The only thing you'd lose would be your dignity by whining about it.
I'm not against fanfic or out to stop anyone from doing what they will--once something is made and shared, you always loose some control over it. People will write, recreate, demonize and romanticize your characters as they will. Voicing an opinion about it wont do you any good either, other than having some tell you to suck it up and quite whining.
Personally, I'm not wild about fanfiction and I'm much more interested in the original author's ideas about their story. When they stop writing, that's the end and luckily there's plenty of other green pastures. People just keep making new stuff. Perhaps that closes me off to a lot of stellar fan-fiction, but I just can't get into it. That's just me.
Alternatively, I do think it's very interesting when a particular concept is loosed upon a population and they do what they will with it. It changes, evolves and creates it's own momentum, owing no allegiance to an individual. You could argue the furry fandom itself has it's roots in a similar shared and expanded idea.
"One shall never forget the three golden rules of derivative works:
1.: Inform the original creator of your work
2.: Acknowledge the original creator
3.: Never attempt to make money with derivative works, unless there's an explicit agreement with the original creator"
Oh, and in terms of fanfiction, it's not all wish-fulfillment stuff, though that's generally what people think of when they think of fanfiction. When I used to write fanfiction, I tried to have my own worlds as coherent and taut as any of my regular stories, and if I ever do it again I'd want it to be so thorough that it could be a novel in its own right more than just another piece of fanfiction.
You can always claim ignorance about an eight year old piece you'd forgotten about--there is still some sensibility left in the law. It's more about if you knowingly let others modify, redistribute or republish your works or a derivative of your work.
For instance, let's say I write a comic called "Mongo and Jack." Someone approaches me and wants to write a story about Mongo. "Sure!" I say, so they do. It's great, they write more, they expand my Mongo and Jack universe, make their own characters, then they publish it. Now, it's time for the Major Motion Picture, and ... well, I don't see a dime of royalties, or maybe just a paltry penny because I can be traced back to making up the name of the universe it's set in...but nothing else. I've lost control of my creation.
I kind of disagree about *all* fan fiction being categorized as such. Some fan fiction can be downright amazing. Some things are even fan fiction without even really being classified as it. Look at all the fan fiction iterations of classic things like Robin Hood or Alice in Wonderland. Things like the League of Extraordinary Gentlemen. Sometimes taking material and giving it a twist can be really successful even if it goes far and away from 'canon'. There's all sorts of different levels of it of course.
I can agree it's important for creators to protect their copyright and not a bad idea to go the official route, but at the same time I think it's silly to be a ravenous watch dog. Imitiation is one of the highest forms of flattery and if it's not hurting you, why worry?
Let's say I write a comic called "Mongo and Jack." Someone approaches me and wants to write a story about Mongo. "Sure!" I say, so they do. It's great, they write more, they expand my Mongo and Jack universe, make their own characters, then they publish it. Now, it's time for the Major Motion Picture, and ... well, I don't see a dime of royalties, or maybe just a paltry penny because I can be traced back to making up the name of the universe it's set in...but nothing else. I've lost control of my creation.
There's really a *lot* of sides and variables that you can't really sum up in a few paragraphs.
I'm a bit of the opinion that if you're writing an entire epic universe based around someone else's idea--well, you really should have just started with your own idea.
It's definitely good advice to keep in mind regarding the content you create. But you could even take it from the opposite side. You cited H.P. Lovecraft to another poster in this journal and while it's a shame that he died not making much money off of his creation, his universe has spawned so many amazing and wonderful pieces of literature and other media, few of which would have existed if he hadn't allowed for his universe to be a sandbox. And it's also earned him a place in history, Lovecraft will be remembered pretty much forever. But that gets into a whole other can of worms XD
Still, I can agree it's something that in this day and age needs to be kept in mind, on both sides of the fence.
If an author wants to go the Lovecraft route, that is by all means awesome and their call--but they should understand that's what their doing, rather than after the fact.
It is very cool to see something branch out into so many new avenues when it's let out into the public's domain. :]
Most people who write fanfiction are nice enough to put little notices in their writings, disclaimers that say that they have no copyright holding on the characters or universe. I would like to have the benefit of the doubt and assume that most people are kind people and would not be asshats, like the person who threatened to sue Marion Zimmer Bradley. In most cases, the stories are so ridiculous and extreme that it's not like the original creator would have considered it anyways. Is Wolf really going to fall in love with Fox and have Rob64 record the sex? Probably not, but it sure makes an entertaining story to fantasize or write about.
Basically, when someone write fanfiction for fun and not to be serious, it's harmless. I think it's a good thing. It encourages creativity and reading in both the author and the readers. Just like anything, misfires happen. Species are born and then naturally selected to go extinct. It's inevitable and sad. Just because every once in awhile a bad thing happens doesn't mean that you should never allow or partake in that thing. I think some kind of anti-fanfiction stance is a bad stance, because it punishes all ten out of ten people in a group, where nine are honest fans just wanting to write for fun and the one out of ten problematic dickwad is the only person who needs to be dealt with. In summary, don't be a party pooper for everyone else just because one person's being a jerk.
The heart of the matter for me was mostly about [the author] loosing works into the public domain. I'll site another example (gleaned from GRRM's blog) as HP Lovecraft. Lovecraft encouraged other authors to play in his universe and use his mythos, add their own elements, barrow, trade, etc. Suddenly it was okay for everyone to be tweaking Lovecraft's world and batting around the name Cthulhu. HP Lovecraft died in poverty.
To quote GRRM:
"Did the Lovecraft estate make a penny off THE DUNWICH HORROR movie, the HERBERT WEST, REANIMATOR movie, the recent DAGON movie, the internet version of CALL OF CTHULHU? I don't know. I rather doubt it. If they did, I'll betcha it was just chump change. Meanwhile, new writers go right on mining the Cthulhu mythos, writing new stories and novels."
So this is more a heads up for creative types to consider how loose they want to hold the reigns on their respective artistic domains.
(You can argue that Lovecraft didn't take his mythos far enough, and only with the advent of new authors did the mythos really become sell-able. I don't know enough about the specifics to argue against that.)
I really don't think everyone should be out there to make a million bucks in Hollywood--that's just death of creativity when you try to make something to please the masses. I, personally, as an author and artist, had long ago resigned myself to working somewhat paycheck to paycheck as a freelancer. That's just how it works, but you do it because you love it.
However, it's worth considering that if you have that "good idea," you might want to be the one to monetize from it, and to do that, it require some protection of your artistic and intellectual creation, I think. It's a bit like playing the lotto.
You can argue that Lovecraft didn't take his mythos far enough, and only with the advent of new authors did the mythos really become sell-able.
In which case, those authors deserve credit for expanding upon Lovecraft's original works and ideas, and they should rightfully be celebrated as authors who were able to successfully build upon an older work - which is exactly what the public domain is about: building on older works to create new works (i.e. Hollywood taking Shakespeare's Taming of the Shrew and modernizing it via 10 Things I Hate About You).
read on my page and i make that known as a mere amateur writer too^^" but i must say i'm very glad i'm not the only one who views from that PoV^^
I'm not a huge fan of fan fiction. Mostly because it's fairly boring to me. I believe that anybody who creates something that is somewhat popular should at least keep an eye open and a possible cease and desist order handy if it they start making it for profit.
This leads to other questions and one that I'm curious of your opinion on. Say someone does something like Dragonball Z abridged. It's quite popular on the internet and it does claim to be a parody and that those who like it should support the official release of the actual series. It also has its own line of merchandise. Now, in your opinion do the creators of DBZ have legal recourse to go after the abridged series or have they covered their bases enough with the disclaimer at the start of each episode?
Why? Because, let's face it, sometimes authors DON'T know best. Sometimes we're too close to our work. Sometimes we absolutely need someone else's perspective. I let anyone do fanfics of anything of mine they like, and it's often very illuminating. Out of ten fanfics, I'll tend to dislike one, enjoy six and really fucking love three. Three of my best friends have written fanfics set in my continuities, all of which have given me ideas on how to improve my own work.
It reminds me of Silence Of The Lambs. I've read all of Thomas Harris' books with Hannibal Lecter in them, and after seeing Anthony Hopkins' astonishing portrayal of him in the movie, and then reading Harris' next book about the character, I noticed that Thomas Harris, the creator of the character, had changed the character to be more like Hopkins' portrayal!
In fact, George Lucas is an example of the exact opposite: The original Star Wars movies were so good because other people were there to shoot down the many terrible ideas he had (Han Solo as a green-headed alien with a robot hand!?). Whereas in the prequels, he was rich and famous enough that no one would say no to him, and he produced some massive, massive turds.
So, yeah. Seeing our characters through other people's eyes can help us give them more depth. Sometimes it takes someone else to take your character, or story, in a direction you're not willing to take them, but that once you see where they've gone, you realize how well it works.
But you can't stop fanfic and I'm not saying you should try. Just that as an author, you might like to be aware of the fact that your rights to your creations can slip away from you, and you can loose that "final say." It's better to make an informed choice about the manner and method you spread your creation and idea, rather than having it bite you in the ass after the fact. I'm sure as an author you can appreciate that. :]
Yes, definitely.
Wouldn't non-profitable fanfic's be in the clear? I mean, it's most of the work for free. I think fanfics make a great 'lift-off' point for newbie writers, and I also think it helps save us a little by letting other writers get critique on whether or not their stuff is good- maybe saving us from a lot of bad publications, maybe... I have a friend right now wanting to publish basically a series of Resident Evil books, but I know how badly he writes. I might recommend fanfiction to him so he can see how he likes writing(and understand how tough it is to make a PAGE let alone a Book).
do you share the same disdain (if that's not too strong a word) for official fan-fiction? For instance, Star Trek novels, the sequel to Dracula, nearly everything written by Paul Feval, Peter Moore's comics using pre-existing characters? Since you make a Superman reference up there, what about all the reboots given to Superman by other authors, the alternate universe versions, the deconstruction done by Marvel (Supreme Power), or the film versions? In fact, do the film versions of all books fall under this heading? What about the various versions of the Arthurian legends made after the original legends were recorded?
Again, I'm not trying to turn the whole arena gray, I'm just curious about where you see the line drawn. I totally understand not wanting your characters used in ways you don't want them to be. But there's enough ways, and specific cases, muddying the waters that some consideration is needed.
But anyway, about such things as Star Trek and so on, I think it's one of those shared universes that's developed and anyone can come play. If an author invites others to write in their mythos, that's awesome--my post was mostly about letting authors fully contemplate the cause and effect of allowing derivative works of their own be made.
Another fellow, on this topic, pointed out that Lois McMaster Bujold's first book of many books was originally a Star Trek fanfic. It turned out so well she changed the names of species, characters and governments and had it published as an independent creation. Does Gene Roddenberry deserve any credit? Arguably no, because Star Trek has taken on it's own life and blood from hundreds of different authors.
(No offense intended. :) The amount of misinformation contained and spread in this fandom is huge at times. It's very hard to weed out the true from the fictional. I don't even count "Really Important Non-Fan Person Said So" as a valid source. Law or case please. Cite source!)
If you willingly let your creation enter the public domain and do not defend it as your intellectual property, you can potentially loose your copyright.
Um...two things.
1.) Due to the Berne Convention and changes in US copyright law, the second you publish a unique and original piece of art, you automatically have a copyright on it, whether or not you put the "copyright" symbol on it. And while copyright terms vary around the world, in the US, copyright lasts for the length of an artist's life and an additional seventy years following their death. So for many people, copyright will last well over a century, and it will not be revoked unless the copyright holder chooses to do so themselves, as nobody else controls the copyright to a work.
2.) If you choose to place a work into the public domain (which not very many people do), you essentially forfeit all right to the copyright over your creative work - and what that means is that people can legally take your work and use it as a part of another creative work (through remixing, copying parts of your work, etc.) and they can legally distribute copies of your work, in any form, without having to get your approval/permission first (this is why the Project Gutenberg - http://www.gutenberg.org/ - can distribute so many classic texts for free; every book they offer is in the public domain). A work cannot enter the public domain without either the copyright holder's explicit decision to place it there (and thus revoke his copyright) or a century-plus worth of waiting.
Yes, the Internet has certainly changed the way people look at copyrights and the public domain, especially since it's made copying and spreading information (including creative works) is easier and cheaper then ever before. But that doesn't mean it's nullified copyright laws (in fact, the Internet was partially responsible for the DMCA being made into law, not to mention the basis for the much-maligned not-yet-law ACTA treaty), and as long as you don't personally put your work in the public domain, you can use whatever means are at your disposal to protect the copyright of your work (including the DMCA takedown system). Of course, there's a potential for backlash if you protect your copyrights TOO tightly (look at how people perceive the RIAA and the record industry). As author Cory Doctorow put it, "An artist's enemy is obscurity, not piracy."
I do think that the author's family or heirs do have a valid expectation to the value of the work in case something like that happens.
The fundamental fact that people seem to forget about the public domain is that while any work in the public domain is legally free for anyone to use however they wish, if the copyright holder chooses to put the work in the public domain, they can still monetize the work (as can anyone else).
Shakespeare's works have essentially been public domain since the first copyright statutes were created, and people still buy copies of it from many different publishers. Thanks to a snafu with the opening credits, the original "Night of the Living Dead" film is in the public domain, and while I can go legally download it for free from anywhere that hosts it, I can also buy any of the dozen or so different DVD releases of the film if I so choose.
The (deceased) author put all of his effort into creating the work. If it falls into the public domain the instant he dies, it would easily allow people who contributed nothing at all to the work to take the lion's share of the benefits, as long as they have the ability to more easily distribute it than the author's kin.
If the kin in question believe that they can take the work from the author and publish/distribute it in a form that people will pay for DESPITE the work being in the public domain, then they're more than welcome to try. If someone else beats them to the punch, then they have to try harder or - shockingly enough - create something original to capture an audience.
Copyright was not intended nor designed to manage competition; it was intended to allow artists to be properly compensated and credited for their work while allowing for that work to eventually pass into the public domain, where all peoples could try and make use of the work for the good of society and culture. It did so by placing a monopoly on a protected work - one that was temporary - that allowed an artist complete control over the distribution of their work. The first copyright term was 14 years, with an option to renew the term another 14 years (for a total of 28 years of protection) if the author so chose.
To compare copyright then and now, let's apply the length of a copyright term to a work created/published this very day:
THEN: The work would be protected by copyright until at least 2024 (it would be protected until 2038 with the extension), after which it would fall into the public domain.
NOW: Assuming I live another 50 years, the work would be protected until [i]2130[i] (50 years' worth of life and 70 years after my death), after which it would fall into the public domain.
Let's say I write a comic called "Mongo and Jack." Someone approaches me and wants to write a story about Mongo. "Sure!" I say, so they do. It's great, they write more, they expand my Mongo and Jack universe, make their own characters, then they publish it. Now, it's time for the Major Motion Picture, and ... well, I don't see a dime of royalties, or maybe just a paltry penny because I can be traced back to making up the name of the universe it's set in...but nothing else. I've lost control of my creation.
Another fellow, on this topic, pointed out that Lois McMaster Bujold's first book of many books was originally a Star Trek fanfic. It turned out so well she changed the names of species, characters and governments and had it published as an independent creation. Does Gene Roddenberry deserve any credit? Arguably no, because Star Trek has taken on it's own life and blood from hundreds of different authors.
I'll site another example (gleaned from GRRM's blog) as HP Lovecraft. Lovecraft encouraged other authors to play in his universe and use his mythos, add their own elements, barrow, trade, etc. Suddenly it was okay for everyone to be tweaking Lovecraft's world and batting around the name Cthulhu. HP Lovecraft died in poverty.
To quote GRRM:
"Did the Lovecraft estate make a penny off THE DUNWICH HORROR movie, the HERBERT WEST, REANIMATOR movie, the recent DAGON movie, the internet version of CALL OF CTHULHU? I don't know. I rather doubt it. If they did, I'll betcha it was just chump change. Meanwhile, new writers go right on mining the Cthulhu mythos, writing new stories and novels."
So this is more a heads up for creative types to consider how loose they want to hold the reigns on their respective artistic domains.
But I would ask: If he hadn't encouraged all that playing around in his world, would we now be as aware of his books as we are? Maybe. Maybe not...
By comparison, consider the character Tarzan. Burroughs was very tightfisted about his work and sued anyone under the sun with anything resembling an ape man in Africa. Still, a lot of people know about Tarzan and the Burroughs estate is worth millions.
But would HP Lovecraft find the living mythos he spawned more gratifying than millions of dollars? I mean, he's dead now, so it's really one legacy vs. another. Who knows--but weighing the two extremes (or settling somewhere in the middle) is the individual author's choice...but it's nice to make an informed choice. :]
But yes, I am *always* in favor of more information, and your point is valid. That's why Disney goes after high schools that paint murals of Mickey Mouse: because if you get to a point where you are trying to defend your intellectual property in a court, it's a dangerous precedent to have allowed reproduction in the past, even for free.
(And btw, in general I share your opinion of fan fiction. :) I will note that Cassandra Clare, New York Times bestselling artist, got her start writing Harry Potter fan fiction. BUT she didn't magically get discovered. She met published authors through the HP fandom, people who admired her writing, and got an opportunity to pitch her original books. Because she's a good writer who happened to be inspired by HP, she was able to go from fan fiction to original published work. Also, she didn't just write a story. She wrote a complex set of novels with character depth and themes and whatnot. In the VAST majority of cases, you are MUCH better off developing your own world and characters if you want to write seriously. Robert Asprin actually said that once about the Star Trek books--he said, "if you're Joe Haldeman and you want to show people how YOU would write a Star Trek novel, that's fine. If you're an unpublished author, people are going to want to see if you can work with your own world.")
Cool, so, 50 people stole my book and 5 actually bought it. :3
(mostly based on the UK design right to clear things out)
-Copyright:
You get 'copyright' at the moment you draw or scribble something on paper. Everyone can use the copyright symbol (©) for free.
What I've found out is that you "Don't" have to go to a copyright or IP-office (IP = Intellectual Property), you can also send a mail 'signed' to yourself, you will get a legal date stamp and thus you can also prove that you own your work. You can also file this envelope at any official building (like at a lawyers office for example). Once filed: Your copyright can be legally proved. (filing costs about €100,- but atleast it's safe and will be accepted faster whenever someone should try to claim your work as their own).
You should consider however that this only protects the 'complete-design', any other part like an 'idea' or other 'characteristics' behind the drawing for example isn't safely secured.
ALSO, Characters can not be copyrighted, the underlying work however 'can' be copyrighted, so in essential your character is 'safe' since it's part of the copyrighted work. (it sounds really unlogic, I know... but that's what I found out)
A copyrighted work like a Music-Album for example can have multiple copyrights, namely: Copyrights for each individual track on the disk, the design on the cover has a copyright and etc.
-Design:
You can also file in a Design at your nearest IP-office, 'taken' that your character or style is unique, and\or that your work has a certain personality or look that really stands out from the norm.
it costs about €60,- to file a design directly to any IP-office, will last for 25 years, but you'll have to update it every 5 years!
A Design protects how something 'looks', wether it has a certain functionality or idea behind it doesn't matter in this case, solely how the 'product' (or object or character) catches the eye or distinquishes itself from other objects.
However that doesn't mean that your 'design' isn't protected in your copyrighted work.
There can be a 'legal design' in your previously copyrighted work.
Though, I'm not sure about how this exactly works or how it is retrieved, as I said: I'm still a noob at this thing but atleast I went through the trouble to do some research, even if it's just a little.
-Trademark:
A Trademark is applied to 'any' Slogan or Logo, what you have to keep in mind however is that if you want to file a Trademark to any IP-Office, is that your Logo or Slogan is used in trading or in your company.
For example: If you have a company that sells fine leather jackets, then you can easly file a Trademark for your Logo or Slogan.
If you want to file a Trademark and it isn't in use or in some way 'connected' to a company in terms of trading (sorry if I sound gibberish here) then you can't file in a Trademark. (according to UK's governmental IP-site)
Also, If you file a Logo or Slogan as a trademark it should say 'nothing' about the quality or functionality of the stuff you're trying to sell.
For example: You can file BMW as a Logo, but you can't file a logo that has the text "Fast Car" in it.
Once you filed a Trademark you can use the ® Symbol to show people that you 'registered' and legally own a certain trademark. If you haven't filed a Trademark and you use the ® Symbol, it is considered to be illegal.
If you haven't filed a Trademark but you still consider a certain title as part of your work\company, you 'can' use the TM symbol.
Hence the Title: "Rayman® 2 The Great EscapeTM"
Rayman is an officially registed Name to Ubisoft.
Ubisoft can claim the full title: "Rayman 2 The Great Escape" as their own, but Square Enix for example can still make a title along the lines of: "Final Fantasy VII - The Great Escape" if you know what I mean.
-I hope I explained it correctly.
-Patent:
The general idea behind a product or how a product works, to me it seems irrelavent to explain it here since the other parts already explain what an 'artist' needs to know, so I'll leave this one blank.
All in all: Fanart is basicly illegal.
The only reason why creators allow fanart, is because it attracts more fans and thus gives the people more sale.
Always credit the creator when you make fanart and don't ask for money.
Those are the golden rules.
Fortunatly people can't claim how you should interprete their work.
Everyone has their own right to how they should look at something! =3
Fanart or Fanfiction is solely the interpretation a certain person has towards said work.
If somebody would take my characters and write awwfull scat stories, I wouldn't complain about it, if that is how they interprete my characters, then it's fine by me.
What some artists 'forget' is that the 'reader' or 'user' makes out how they interprete your information, not you!
Thatswhy, if you write a story that's all chewed out, less people will read it, because they can't add their own two cents. (I'm sounding gibberish again! But remember that this stands loose from copyright alone. ^^; )
This is true, and this is thanks to the Berne Convention. It also applies to other creative works, including music, movies, books, etc.
What I've found out is that you "Don't" have to go to a copyright or IP-office (IP = Intellectual Property), you can also send a mail 'signed' to yourself, you will get a legal date stamp and thus you can also prove that you own your work. You can also file this envelope at any official building (like at a lawyers office for example). Once filed: Your copyright can be legally proved. (filing costs about €100,- but atleast it's safe and will be accepted faster whenever someone should try to claim your work as their own).
This isn't a legitimate method of registering copyright; it's often referred to as "the poor man's copyright", and the legal foothold such a practice would give you in a copyright case is nebulous (at best). If you want to truly register a copyright, you must officially register it with your country's copyright registrar (if your country has one, that is), as you pointed out.
You should consider however that this only protects the 'complete-design', any other part like an 'idea' or other 'characteristics' behind the drawing for example isn't safely secured.
Also true. Copyright protects the creative work (a romance book), but not the idea behind it (X meets Y and falls in love). Ideas cannot be copyrighted, but the expressions of ideas can.
A copyrighted work like a Music-Album for example can have multiple copyrights, namely: Copyrights for each individual track on the disk, the design on the cover has a copyright and etc.
There's also separate copyrights for the songwriters, the music composers, and the performance (meaning that in order to legally secure usage/distribution rights to a specific track, and there were all those separate copyrights, you would have to get the permission of every single copyright holder; if even one says "no", you're screwed).
Fanart is basicly illegal.
NOT ENTIRELY. A fair amount of fan art / fan fiction could likely be covered under Fair Use parody/satire statutes.
Fortunatly people can't claim how you should interprete their work.
Actually, they can. Free Speech and all that. It's just that we don't have to listen if we don't want to. :3
For instance, the UK has no law to protect the Freedom of Speech, and the European Court of Human Rights has ruled that interference with free speech was "necessary in a democratic society" in order to guarantee the rights of others "to protection from gratuitous insults to their religious feelings."
http://www.secularism.org.uk/upload.....5738717582.pdf
Also, thank you very much for the constructive feedback on the copyright issues. :]
What a bunch of fuckin' idiots.
The Internet is by its very nature a vast copying machine. Copyright enforcement and protection of intellectual property on the Internet is akin to King Canute commanding the tide to stop coming in. With perhaps one quarter of the planet's population having access to it (and growing every hour), any attempt by a single individual to say "You there, stop! That's my idea! You can't copy my idea or change it" seems a Lilliputian effort.
Granted that there is still legal recourse (for those with the money and time to pursue it) in the US, Canadian, West European legal systems, but that still leaves quite a bit of the rest of the planet uncovered.
As you said, if you don't want it copied, then don't post it. For the hobbyist not needing the stroking of admiring fans, it is not a problem. But for the artist or author for whom their work is their livelihood I do not see any rescue outside of the formation of a world-wide guild that has the monetary clout to pursue Internet violators. Heh, but with nations flouting the industrial copyrights of other nations with impunity, it is going to be a long time in coming.
FanFic wouldn't exist if it didn't fill a void, and trying to stop it is like the finger in the dam. It's easy to pick on fans, not so easy to try and take on the real threat: the massive piracy of movies, CDs, books and everything else in China and other countries in that area. Compared to the billions lost there, pissing and moaning about fans doing fanfic not only seems really petty but cowardly. Like picking on the retarded kid while the real bully goes around crippling people.
I was mostly interested in the various examples of authors who encouraged fanfiction, then later had course to regret it. Such as the Marion Zimmer Bradley tale.
Another fellow, on this topic, pointed out that Lois McMaster Bujold's first book of many books was originally a Star Trek fanfic. It turned out so well she changed the names of species, characters and governments and had it published as an independent creation. Does Gene Roddenberry deserve any credit? Arguably no, because Star Trek has taken on it's own life and blood from hundreds of different authors.
So this is more a heads up for creative types to consider how loose they want to hold the reigns on their respective artistic domains.
Now, if you *intend* to sue someone over a copyright issue, you're not allowed to wait around while your target becomes heavily invested in infringing on your copyrighted content before filing suit, as you risk the defendant using the doctrine of laches to avoid liability. However, even in this case, you still retain your copyright rights and can enforce them against any other party.
There are changes in the pipeline that will affect orphan works, but this only applies in the case where the original copyright holder cannot be found, not when the owner is lax in enforcing their copyright rights.
If you do intend to litigate against copyright infringement, you're well served to register your copyright. Doing so is a relatively cheap and easy process. "Establishing copyright" by mailing a copy to yourself is an old wife's tale and does not hold any weight in court. (for example, you could simply mail yourself an unsealed envelope, then later fill it with whatever content you please).
All the usual disclaimers about playing a lawyer on the internet apply. Further reading can be found at http://www.copyright.gov/ including a helpful FAQ which answers questions such as "How do I protect my sighting of Elvis?" (no, really).
But seriously, yes, you won't be loosing copyright of a specific work until you've been dead and buried for some time.
One could argue in court you didn't know where the picture came from, hence making it fair use. I'll use LolCats as an example. Just imagine all the merchandise, such as t-shirts, stickers and such, that have been made based on the Ceiling Cat photo, the I Can Has Cheeseburger cat, etc. Someone actually took that photo and it weaseled and greased it's way all over the internet. Someone right now who never knew where it came from, it making a Ceiling Cat joke. Even if those photos can be traced, think of the hundreds that could be the next big Internet thing that have just been anonymously pulled off Flickr and the original author has no idea. You could argue, of course, that through their inaction and letting it go on for years before the LolCats Cartoon came along, staring their distinctive cat, that they've waited too long.
That's why Orphaned Works is a scary prospect--no one wants to be policing their content on the Internet.
Kenket, my partner in crime, had a piece of hers get ripped off DA a few years ago. A major clothing company was selling shirts with a trace of her design. We tried to pursue the issue and hit a dead end when the design the clothing company bought came from a Chinese graphic design company, and they claimed had no idea it was stolen. The end.
But I digress.
Back in my college days I took several courses covering copyright and contract negotiating as it pertains to freelancing. The first myth our professor debunked was of course that silly "mail a copy to yourself in a sealed envelope." Since college, I regularly lump register works through copyright.gov. It's like buying life insurance--you hope to god you never need it, but it's nice when you do.
The orphan works reform is intended for works where there essentially isn't anyone on the planet who thinks they might have a valid claim to the work. Like if some publisher 50 years ago owned the copyright, but that was 12 mergers, acquisitions and spinoffs ago and nobody bothered to keep track of who should own that particular work. The reform is aiming to put in place a compulsory licence scheme such that, when you reach a good hard dead-end trying to find the rights holder, you can still proceed in some legal fashion without exposing yourself to potentially limitless liabilities.
On the lolcats example, supposing I took a picture of a cat, and someone decided to make a lolcat picture out of it, make merch, etc. Assuming I was displeased with this, I would be able to send takedown notices wherever I found my photo being misappropriated. But, lolcats being lolcats, it would probably spread to corners of the internet I might not see in 20 years. However, laches only works on an instance by instance case, so if those 20 years later I stumble upon some elbownian lolcat page I had never seen before with my picture, I would still have claim against them as long as I acted within a reasonable amount of time from when I was first made aware of that particular infringement and the infringing party would not be able to use a laches defence. Laches would only come into play if I was aware of a particular site's infringement, did not act against that particular site within some reasonable time period, then later came after that particular site claiming damages on the intervening time period. It's highly doubtful that the case would fall under any orphan work provision.
I do remember the case where Kenket was ripped off. In theory, she should have had legal recourse to have any of the merchandise on US soil seized and further imports thereof blocked, but I imagine it would have been quite a hassle to get Customs to act on it.
Henry has written a novella. The title of this paper back pocket party is called Sunsets in Sommersville which is a fictional story based in the 1930's during WWII about a young man named Joseph and his childhood sweetheart Betty. The book was FIRST written in rough drafts, briefly edited and submitted to his own minuscule website on the internet but despite such a small space that commonly no one would look for, Henry was lucky enough to have written his drafts in such a way to accumulate a mass fan base of his tasteful romantic book. Having gained such a fan base, he found that often a lot of them would either sketch out how they see his characters in their minds (because Henry isn't an artist and he only draws his characters through the written word) and so he made another page to his site where fan-work can go. Everyone who posted their fan work would link the website, give credit where due and even rave about their excitement of the final draft being printed and sold! Why? Because Henry didn't post the LAST chapter; he wanted it to be a surprise to the readers and also will make them WANT to buy the book more.
So here's the catch: Before the book was published, someone on the internet (we'll call them Sunny) had been reading Henry's work and also (because Sunny knew it wasn't finished properly) would re-write and change the story as the pages came along to how HE thought it should be. No one knew that Sunny was doing this because Sunny never let his presence be known to the author, Henry, or any other fan. He lurked. So while Henry is planning his book's debut and how much it will cost for it to be published, Sunny has already taken his warped copy of the story with his own final chapter ending and has submitted it to a publishing company and it is to be released in three months.
Henry obviously recognizes his OWN story and characters and files to sue Sunny for stealing his idea and bastardizing it WHILE making money off it with pre-orders and what-not. On Henry's website he has every submission dated (even edits dated) but has NO evidence to prove that Sunny ever looked at his site, contacted him or any other fans of his work.
Would Sunny be able to get away with this?
But if Henry has a large fanbase and fans with the time/funds to help support him, I'd say he has a good chance of making sufficient a sufficient splash to scare off Sunny's publisher. No-one likes bad publicity.
Perhaps your familiar with the story of Elisha Gray and Alexander Bell's race to the patent office. Bell was the one who got their first, and he's accredited with being the father of the telephone.
Another fellow, on this topic, pointed out that Lois McMaster Bujold's first book of many books was originally a Star Trek fanfic. It turned out so well she changed the names of species, characters and governments and had it published as an independent creation. Does Gene Roddenberry deserve any credit? Arguably no, because Star Trek has taken on it's own life and blood from hundreds of different authors/artists.
So basically... long story short, I could take Star Wars, change the characters and names of places, switch up some events and make millions off my "original" story?
Also, I'm not sure if you know already but I was looking through international news and there is a man in Sweden who might get sued because he wrote and published a book that is (supposedly) just The Catcher in the Rye.
I'm not sure the acclaim you'd get, just because you wouldn't be breaking any new ground, so to speak...just rehashing old ideas we're already familiar with.
That someone could take a classic and republish it doesn't surprise me. And it's only so long until someone notices. As a contemporary example, recently there was a girl who stole a picture from DA, then won the Scholastic Youth Art competition (or whatever it's called) with the stolen piece. She won a trip to New York and a 10k scholarship. With all the piece's recognition, it didn't take long for someone to alert the original author and all hell to break loose. If someone is well known or has it's following, I think eventually someone will call foul. In poor Henry's case, however, he wouldn't have much of a legal leg to stand on, since in the end, it all boiled down to a "race to the patent office."
Poor Henry, though. The real purpose of my scenario was I'm just curious about the dangers of publishing and posting and all that jazz. Writing is something I love to do, almost something I feel I have to do, and I'd absolutely be furious if someone happened to take MY idea and try to gain from it. I guess the moral of the story is exactly what you said: "If you don't want it stolen, don't post it."
Heck, even my beloved TaleSpin's original story (Plunder and Lightning) is aped from Laputa: Castle in the Sky
Check out the $2 DVD section at your local toy store, and you'll see dozens of cloned cartoons of current titles with 'some' differences.
The bottom line is if the production is quality, people will pay to see it. If your version resonates with people, they will make it popular, like Avatar, if not.. well then you've got Delgo.
Hmmmm. It seems as though if you want something to turn out your way, you have to keep it to yourself or suffer the consequences.
So if I do an illustration of someone else's character, I retain rights to that image (my own requirement), which means I can sell prints of it, make a t-shirt, whatever. The person who commissioned the artwork does not automatically acquire the rights to that specific image, though they always retain rights to the character concept (if it's written down). However, if Disney hires me to do an illustration of Mickey Mouse, I do not own any rights to the character, I have no right to make other images of Mickey, and because Disney never lets anybody do anything that's NOT "work made for hire" I will not own any rights to the specific illustration I create, either, for print sales, derivative works, etc.
That being said, I am not a fan of most derivative works, especially of fictional characters, and most especially of any characters that have any depth of development. I dislike it just as much when an author betrays the personality of their own characters that they've spent time establishing, just to make some plot point work. That smacks of incompetence, to me, and breaks the suspension of disbelief that requires internal consistency. It bothered me a lot when Peter Jackson's version of Faramir fell under the spell of the Ring and took Bilbo back as a prisoner to his father to redeem himself. That was completely opposite to the way that the character in the book would have acted (and did).
And that leads to the problem that I have with most fanfic I've seen. The fans, no matter how much they think they know about the characters, are only seeing their public face. The author, if they have done their homework, knows them intimately, including all those historical details that the public may never see. Those are the histories and beliefs and motivations that shape a character's actions, and while some of that can be reverse-engineered, so to speak, or guessed at, I've seen many cases where those guesses were way off the mark, even down to speech patterns. To see a story written with characters I've created, and see them acting in ways contrary to their personalities would be like running into someone I used to know, but whose behavior was completely opposite of what I would have expected. Copyright arguments aside, it's like someone using your kids as hand puppets to act out things they'd never do, and putting words in their mouth that you know they'd never say. It's disturbing at the least.
Will GRRM stop dicking around and finish his stupid books before he drops dead, or will he pull a Robert Jordan?
Who knows, maybe there's more fanfic of his works 'cuz he's off wanking, instead of writing. :)
I'm also not a big fan of exorbitant lawsuits and settlements, though. I would rather send a warning notice first, before taking any sort of legal action, if someone was using my characters in a way I didn't approve of.
I found a paper written by a law student that was published a couple years ago, and it explores the issues of copyright, fan fiction, and fair use in depth. It's really a fascinating read, and you may want to have a look: http://www.law.siu.edu/research/30s.....gpdf/Nolan.pdf
I say it's something artist need to take account of. If you have millions of dollars backing you up like george lucas and marvel do they won't care about limited prints of artwork and it does count as your own if it is a parody of the characters (does porn count? :P) but hats and trinkets will get you into trouble for sure.
Now for small artist I say it is imperative you take action against fan work that is being sold of any kind. Personally I don't care what anyone does with my characters in their spare time. If they make something just for them and a few friends that's fine but if you attempt some product line that is moving in on what I do for a living and in my case have YEt to make a living out of.
THAT SAID, there is such a thing as common artistic courtesy. To me this means getting permission to use someone else's IP before doing anything with it. This is more or less for the exact reasons given in this journal post. Simply because something is legally possible doesn't make it right.
To give a specific example that would also arguably fall under fair use: suppose an artist (or writer) used someone's character that was specifically their avatar in a work specifically used to upset this person. Many ways to do this, from making them 'say' or 'do' things they would never say or do. Such as making someone who is very straight out to be gay (or even the other way around!) which could make them uncomfortable. Technically this would be protected under fair use and parody however it clearly isn't something 'good' to be doing.
It's the author's call either way, but an informed decision is usually better than a regret, I think.
Also, do you have a pair of paint-covered overalls I could purchase?
I totally agree that stealing a writer or artist's ideas IS STEALING: the thief did not do anything original and instead stole some-one else's concept. Fine, that's a point against them.
However, the fanfic writer has put a lot of effort into their derivative works and if for instance they had written an entire novel based off of DDOS or whatever then you have to admire the effort that went in to writing that! Sure the original concept is not theirs but the work itself surely is copyright of the fanfic writer?
Comments anyone?
The Chilling Effects Clearinghouse FAQ on fan fiction. Worth a read.