deliverusfromsburb:

deliverusfromsburb:

People suggesting fancontent is always ok until you monetize it are wildly misunderstanding fair use but I guess it’s easier than being aware of how much fan creators are always living on a knife’s edge.

For a very quick crash course on fair use before I go to work:

(Disclaimer: I’m not a lawyer and my copyright training was from a librarian’s perspective. Do not take this post as legal advice.)

First of all, fair use is a legal defense. You can’t just say ‘oh my use is fair, it’s fine’. It has to be found fair in a court of law.

Second, a fair use analysis is based on four factors.

1. the purpose and character of the use. Educational use (ex: photocopying part of an article for your students) tends to be favored more than commercial or entertainment uses. This factor is also where the idea of transformative works come from - that the use involved creating something new out of the original work.
2. the nature of the copyrighted work. Original works of creative fiction tend to be more protected than non-fiction, factual materials. Unpublished original works are also more protected.
3. the amount of the work used or the “heart of the work”. Taking a little is better than taking a lot. However, if you’re taking the “heart” of the work (the most recognizable line in a song, for example) that might count as taking more.
4. effect on market or value. Will the use harm the market for the original work? Does it decrease the original work’s value?

Courts tend to weigh factors one and four most highly, but all four can come into play.

So how does all this impact fanworks? Well, fanworks tend to be for entertainment purposes (bad) but are often transformative (good). Some are more transformative than others. (Gifset versus an amv.) Factor one is where charging for your work would be a strike against you. Fanworks also tend to be using original creative works as their base (bad). Do they take a lot of the work or the “heart” of the work? Hard to say…. most gifs or amvs are only using small portions of a work, but they might use the work’s most iconic scenes. And does using a character in an AU fic count as the work’s “heart”, since characters are critical? I’m honestly not sure. Finally, I don’t believe most fanworks have an effect on the market value of the original work. Most of the time, you have to consume the original to appreciate the fan content. If you’re posting an entire book’s original text on ao3 that’s a different story.

So, fanworks - whether commercialized or not - fall in a gray area fair use wise. But unfortunately, because capitalism, that may not matter. Like I said, fair use is a legal defense. The reality is that the copyright system favors the rich and powerful. Wealthy corporations can afford to pay licenses or fines, and they can also afford to expend the time and effort necessary to sue someone. Individual creators don’t have as much reach or resources. I don’t care if your fan content has a perfect fair use defense. If Disney comes after you, you are going to lose. I might suggest a fifth, off the books fair use consideration - risk. How likely are you to get noticed by the IP holder? How likely are they to retaliate? And that’s where commercialization comes into play - it’s not that that necessarily destroys a fair use claim, although it’s a mark against it. It’s that when you bring money into it, you’re more likely to catch those IP holders’ attention in a bad way.

Again, not a lawyer, and I encourage you to read into fair use more on your own if you’re interested, including the outcomes of cases involving fan content. TL;DR: A lot of fan content relies less on fair use and more on not waking the sleeping giant, so to speak, and bringing money into the equation is more a threat to the latter than the former imo.