DP Thoughts: When Is A Law No Longer A Law

when is a law no longer a law
August 31, 2007

You know you have a good day when you actually agree with people you don't normally agree with. And you know you have a bad day when you have a disagreement with someone that you normally see eye to eye with.

That's just my viewpoint about it, anyway.

I found myself reading over once more a certain website that I think I may have overlooked in the past because the site seemed to be misunderstanding my writings, This is because this site has, in fact, been highly critical about my past works, namely Got There Too Late (which I admit is not a good work but I had made it in a whim and never thought to be taking it seriously, plus it was made in 2000, and this is 2007. I have excuses aplenty for that one). Of course, if you do not know what site I am talking about by now, you don't know about my past that well (or heard about it from the wrong people, at least).

However, recently, the controversial Sailor Moon fanfiction reviewer The Fic Bitch (http://ficbitch.wishing-blue.net), the site I had referred to earlier, had written a blog about copyrights and fanfics (she names her blogs "rants and ravings"), and she hits the nail on the head on most points (and no, I'm NOT kidding. I see eye to eye with her on this, and on some of the other blogs she has posted). However, she forgot one small issue about the copyright laws that so many people actually do, sadly (this includes me sometimes, and this also includes those idiots at the RIAA and the MPAA, though neither me nor her are within those aforementioned associations). This is called the fair use doctrine (she actually only uses it once in this rant to explain off MST's). But I'll get into that in a little bit.

Let's first get to the many things she gets right. The rant in question, by the way, is called "Copyright Laws and You" (http://ficbitch.wishing-blue.net/rants/copyright.php). In it, she becomes outraged when someone cites "copyright infringement" as a defense when they see their fanfic MST'ed. The reason, according to her, is because fanfics are not protected under law because fanfic writers are using licensed characters in their fanfictions. This is actually correct, in some ways. According to the Wikipedia page at http://en.wikipedia.org/wiki/United_States_copyright_law, the "five pillars" of copyright give the owner of the copyright and those that the owners give permission to, according to the US law, the authority of the following:

To reproduce the work in copies or phonorecords;

To prepare derivative works based upon the work;

To distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

To publicly perform the work, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works;

To publicly display the work, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work.

(Note that the RIAA and MPAA cases have other issues tied to them that make their cases alot more controversial than if it were just these pillars).

Basically, anyone that uses the work as a means of profit without written consent is unlawful. That much is true, and because of that, she is right to that point. The only real issue to be had concerning this argument is that while the characters one is using is, in fact, someone else's, the story that one is using the characters for belongs to that particular writer, or at least that is my view. It's not the same as a "work for hire" situation (in which the work you did WOULD be their property). You have discreet permission to write something using the characters that the person who gave you the permission owns (which, in the FB's case, would be Naoko Takeuchi, the SM creator, which has expressed her love for the fanfiction world many times in the past). But the actual story that those characters will be involved in, again, is all yours. In essence, there are two copyright holders (assuming you want to consider it this way): Those that own the characters, and then they're the writers of whom write the stories themselves.

Of course, her issue about criticisms is correct, and even I am guilty of not exactly taking critiques that well in the past (at least work with me instead of trying to tell me what to do as if you want me to write your own fic through my own). The MST battle will never end, though, as the copyright infringing argument can be made apparent with one little swipe of "did that MSTer ask for your permission before writing it" argument. This is because, for one, this is the MST code of conduct, and if one were to break it, that would be breaking the etiquette code. But also, some websites do in fact have strict rules now that protect the author from those MSTers that do whatever they can to break the etiquette rules (both not asking for permission and then spiting the author and insulting the author, both unethical and looked down upon in the MST world). She is correct, though, that MSTs are fair use (the only time she brings it up, though good for her, since many others, see above, don't even consider it or don't care about it), and can be used without the author's permission at all. However, given that the MST world has died down in recent years, and that many seem to like to break the etiquette rules, following SOME guidelines in that field could do some people some good (Weird Al does this with all the artists he parodies, even though he doesn't have to).

However, one thing to consider on both sides of this is that there are certain stories that people write that they consider to be off limits. If they write something, regardless of how awful it is, the person can in fact say somewhere that he or she would rather no one parody the work due to the issues that the work goes into (for instance, in the Weird Al case, Michael Jackson declined permission for "Black And White" because of the subject matter of the song being so hot button). In my case, I usually don't mind someone parodying my work, because I try to not take myself too seriously (besides, any publicity is good publicity, according to an old saying). However, when someone MSTed my FFYR fic, I didn't approve of it, not because I couldn't handle it per say, but because of, for one, the MSTer code being broken of not asking for author permission, but because of the fact of the subject matter being discussed (homophobia) was so important to me that I felt that doing a parody of that was in fact parodying the message that was being conveyed (this is my point of view that I still hold). I'll admit that I did laugh at a few of the things that were said, but this still was one MST that I would've said no to if given the opportunity. However, it was the fair use thing, and he was certainly entitled to such a fic to be made.

Which is the perfect segue into where the main reason for the criticism of her rant comes in. The fair use doctrine. Fair use is defined in detail at http://en.wikipedia.org/wiki/Fair_use, but it's basically that your work can be parodied, reviewed, or whatever by using a few lines as examples without having to come to you for consent before doing so (though, as seen above, asking anyway is a good practice). This was mentioned in the rant, but in doing so, one must also look into the fanfictions that the MSTs parody off of. Couldn't the fanfics themselves be considered "satire" or "parody"? It might or might not, but it is something to highly consider. Fics is the taking of one's character(s) and putting them into different situations. This might be considered a different from of fair use, considering the usage that is being done. What type of use is this, and is it enough to consider a form of copyright infringement? And plus, what type of fanfic is it, exactly? All of these things are still in play when writing a fic to know whether or not you would be protected under fair use.

Plus, as I had said before, the notion that one gives you the right doesn't let them have any firm ownership over your story. As because, in doing that, one's characters become public domain, and one can in fact do some damage to one that republishes a fic without permission (even though this could be considered career suicide), because the original creator of the fandom, by granting everyone permission to write fics, has, at least in that form, made such characters public domain. In that sense, some laws do in fact protect you in that sense (though I'm not clear how much they will). The original creator cannot suddenly sue you for copyright infringement because that would be, one, a bait and switch tactic that's illegal, anyway, but moreso, the act would be without any notice of a change in opinion being implemented, and one must tell everyone that a change has been made in opinion (the whole "disclosure" thing with that).

Finally, there is a term in the US that is called "Nominative use" that is found at http://en.wikipedia.org/wiki/Nominative_use. I'll just paste the list from that page, but you can use a trademark if:

The product or service cannot be readily identified without using the trademark (e.g. trademark is descriptive of a person, place, or product attribute)

The user only uses so much of the mark as is necessary for the identification (e.g. the words but not the font or symbol)

The user does nothing to suggest sponsorship or endorsement by the trademark holder. This applies even if the nominative use is commercial, and the same test applies for metatags

In fanfiction, there are SEVERAL places in which number three comes into play (many fics do have disclaimers saying that they do not own a certain show and aren't affiliated with any type of production studio and whatnot). Plus, you're only using the characters and the world for your own stories about the characters. And the fics cannot exactly be called "fanfiction" if you don't use the characters and settings, right? Simply put, fanfiction could be considered "Nominative use", and thus protected under that fair use doctrine (are you listening, Anne Rice? FFN and other archives don't necessarily HAVE to remove fics that your ugly, cowardly ass doesn't like because of the Nominative use clause). So this can be considered in deciding if fics infringe on anyone's copyrights.

However, for the most part in this rant, she is correct. Those that have a problem with their works being parodied every single time needs to take it with a grain of salt. Even though the aforementioned fair use clauses could be put into play, and even if the end result is not as flattering as you may think it could be, the fact of the matter is, any publicity is good publicity. Your writings ARE being seen, for better or for worse, and it would be futile to bite the hand that feeds you, regardless of any legal implications that you might think were in play. Regardless of whether you think any of my claims are right or wrong in the legal sense, one thing is for sure.

The Fic Bitch has certainly made this day a good day.

Good night, and good luck.

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