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I've been thinking about the case of Kelly v Arriba Soft. Short synposis: Arriba Soft Corporation, later ditto.com, had an image search engine with thumbnails. Leslie Kelly insisted that their use of his images constituted copyright infringement--these are entire images, resized to thumbnails, offered without permission, for commercial purposes. The courts disagreed; they ruled that thumbnail images are fair use. (There was also an issue of inline linking, "click the thumbnail to see the full image." That part was less resolved--but less relevant to fandom; we don't have a "click on fanfic to open the original book or movie" option.)
PDF of final ruling available at eff.org: 20030707_9th_revised_ruling.pdf; opinion filed February 6, 2002; withdrawn July 7, 2003; re-filed July 7, 2003.
The ruling mentions: "Although Arriba made exact replications of Kelly’s images, the thumbnails were much smaller, lower-resolution images that served an entirely different function than Kelly’s original images." I think of fanfic as working with the textual equivalent of "thumnails" of the original: short snippets that let you identify characters, places, timelines--but with a different purpose from the original. And while, unlike search engines, it's hard to claim that fanfic has a great public benefit, it is easy to claim that it's a creative art--and unlike search engines, it's noncommercial. This may balance out the original first-factor aspect of the ruling.
( Checked against the four factors, with quotes from Wikipedia: )
I am not a lawyer. I am not a law student or paralegal. This is not legal advice. Rather, this is a way to think about the "copying" involved in fanfic and other fanworks: the use of elements created by someone else, edited and arranged for different purposes and a different audience. A work which aguably enhances the market value of the original (and I only say "arguably" because I don't know of any hard statistics, although we seem to all be aware that more fans=more money for original and more fanstuff=more fans).
This, much more than the Acuff-Rose case, may be the legal ruling most relevant to fanworks creators.
(crossposted at my journal &![[info]](https://www.insanejournal.com/img/community.gif)
metametameta.)
PDF of final ruling available at eff.org: 20030707_9th_revised_ruling.pdf; opinion filed February 6, 2002; withdrawn July 7, 2003; re-filed July 7, 2003.
The ruling mentions: "Although Arriba made exact replications of Kelly’s images, the thumbnails were much smaller, lower-resolution images that served an entirely different function than Kelly’s original images." I think of fanfic as working with the textual equivalent of "thumnails" of the original: short snippets that let you identify characters, places, timelines--but with a different purpose from the original. And while, unlike search engines, it's hard to claim that fanfic has a great public benefit, it is easy to claim that it's a creative art--and unlike search engines, it's noncommercial. This may balance out the original first-factor aspect of the ruling.
( Checked against the four factors, with quotes from Wikipedia: )
I am not a lawyer. I am not a law student or paralegal. This is not legal advice. Rather, this is a way to think about the "copying" involved in fanfic and other fanworks: the use of elements created by someone else, edited and arranged for different purposes and a different audience. A work which aguably enhances the market value of the original (and I only say "arguably" because I don't know of any hard statistics, although we seem to all be aware that more fans=more money for original and more fanstuff=more fans).
This, much more than the Acuff-Rose case, may be the legal ruling most relevant to fanworks creators.
(crossposted at my journal &
metametameta.)