Inspiration from an old story on Lit

[djrip]

Do you have any idea how dishonest that sounds? "Fine if you murder someone as long as you don't get caught."

But copyright law doesn't matter unless you get sued, which seems somewhat unlikely here. Until you get sued, all that matters (for posting here) is Literotica policy.

Let me clarify this slightly, I believe this is where you got the wrong idea about my position.

I was saying that, for the purpose of determining if it is possible to post something on Literotica, lit policy matters, and copyright law does not, as evidenced by the fan fiction category.

I was not advocating finishing other authors' stories without authorization, but I was saying that lit policy is what determines whether or not it is possible to do so on this site. One's own morality is also a factor in whether one will choose to do this. I have not indicated that I would choose to do so at any point.

 

[KeithD]

Let me clarify this slightly, I believe this is where you got the wrong idea about my position.

I was saying that, for the purpose of determining if it is possible to post something on Literotica, lit policy matters, and copyright law does not, as evidenced by the fan fiction category.

I was not advocating finishing other authors' stories without authorization, but I was saying that lit policy is what determines whether or not it is possible to do so on this site. One's own morality is also a factor in whether one will choose to do this. I have not indicated that I would choose to do so at any point.

The only point I was responding to was your statement that copyright doesn't apply to Literotica in the same way as it does to commerical publishing. It absolutely does apply the same way. Literotica and you can certainly ignore the law but you are still operating outside of the law and against the interests of fellow authors when you decide you aren't obligated to honoring the copyright of others on Literotica.

 

[KeithD]

And you don't need to! But you claim to not want to read my post because you don't want to be 'disappointed.' I'm fairly sure you are more disappointed by what you assume I wrote than you would be by what I actually wrote. So if you truly want less disappointment, read it. Then, certainly, decline to discuss fan fiction if you prefer, I have no desire to force you to do that.

I told Bram why I didn't read further into your message. I found your position on honoring copyright of other authors in Literotica disappointing and I'm not going to get drawn further into that argument. I stated my position and you can do whatever you want from there. But I'm done with you a far as discussion, then--and not spending my time reading your posts on that. Which does, then mean, I hope that this is the last of your posts on this that I hope to be responding to.

 

[djrip]

I told Bram why I didn't read further into your message. I found your position on honoring copyright of other authors in Literotica disappointing and I'm not going to get drawn further into that argument. I stated my position and you can do whatever you want from there. But I'm done with you a far as discussion, then--and not spending my time reading your posts on that. Which does, then mean, I hope that this is the last of your posts on this that I hope to be responding to.

The problem is you think I'm supporting a position I'm not supporting. You think I'm advocating things I'm not advocating. If you read what I wrote you would know I'm not advocating what you claim I'm advocating.

To be clear I have not advocated doing anything against copyright law. I have stated that lit policy allows fan fiction which is against copyright law.

But certainly, we can drop it. I'd just prefer you hate me for my actual position, if you must, not the one you've imagined.

 

[KeithD]

The problem is you think I'm supporting a position I'm not supporting. You think I'm advocating things I'm not advocating. If you read what I wrote you would know I'm not advocating what you claim I'm advocating.

To be clear I have not advocated doing anything against copyright law. I have stated that lit policy allows fan fiction which is against copyright law.

But certainly, we can drop it. I'd just prefer you hate me for my actual position, if you must, not the one you've imagined.

Being disappointed in a revealed attitude isn't the same thing as hating someone. It's not like what Bram did--dropping in out of the blue for an unprovoked, irrelevant snarky personal attack.

 

[MillieDynamite]

WOW, time out, you boys need to sit in the corner for a few minutes.

 

[djrip]

Being disappointed in a revealed attitude isn't the same thing as hating someone. It's not like what Bram did--dropping in out of the blue for an unprovoked, irrelevant snarky personal attack.

Sure. But you aren't disappointed in a revealed attitude, but rather, an assumed one, and you are refusing to read the material that makes that clear. I wouldn't keep going on if I didn't care about your opinion. If we disagree that's fine. But we don't, at least not in the way you've indicated you think we do. I've clarified that I'm not advocating anyone do anything against copyright, but am rather describing the state of affairs at lit: fan fiction exists here but is in violation of copyright. Therefore Lit policy determines what can be posted here, not copyright. That's pretty much it. The rest was elaboration on that point.

 

[MillieDynamite]

FanFic is only allowed because the copyright holders have chosen to allow it to exist. It helps their side of the equation, keeping the product out there and people watch, read, or buy the real stories, often, because of the FanFic.

Sure. But you aren't disappointed in a revealed attitude, but rather, an assumed one, and you are refusing to read the material that makes that clear. I wouldn't keep going on if I didn't care about your opinion. If we disagree that's fine. But we don't, at least not in the way you've indicated you think we do. I've clarified that I'm not advocating anyone do anything against copyright, but am rather describing the state of affairs at lit: fan fiction exists here but is in violation of copyright. Therefore Lit policy determines what can be posted here, not copyright. That's pretty much it. The rest was elaboration on that point.

 

[djrip]

WOW, time out, you boys need to sit in the corner for a few minutes.

Sorry Millie!

FanFic is only allowed because the copyright holders have chosen to allow it to exist. It helps their side of the equation, keeping the product out there and people watch, read, or buy the real stories, often, because of the FanFic.

I think that could be the rationale, but I don't think every (or any?) copyright holder we have fan fic of has officially given authorization. I could be wrong of course.

 

[MillieDynamite]

They never give official authorization; they don't pursue remedies. Disney doesn't go after the porn industry's stuff to not draw attention to it. The less graphic things do no harm and often promote the original, so most copyright holders leave them alone.

Sorry Millie!

I think that could be the rationale, but I don't think every (or any?) copyright holder we have fan fic of has officially given authorization. I could be wrong of course.

 

[AwkwardlySet]

Sorry Millie!

No need to be sorry though. I know Millie means well, but you have been nothing but constructive and positive in this whole argument. It takes two sides with a similar attitude for anything positive to happen, though

 

[MillieDynamite]

I'm not asking for apologies; I just want all of us to be kindish to one another. Yes, I'm not always civil myself.

 

[8letters]

When I wrote my first post in this thread, I considered fan fiction to be a clear copyright violation. A little while ago, I decided to verify that, and it didn't turn out as I expected. From Wikipedia's "Legal Issues with fan fiction":
There has been no case law that squarely addresses fanfiction in relation to fair use.
The article discusses factors that would be considered in a case addressing fanfiction:

Fanfiction will not be held liable for copyright infringement if it falls under the fair use defense. In determining the applicability of the fair use defense to a secondary use such as fanfiction, courts consider the following four factors:

1. "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work."

Fair use is assessed on a case-by-case basis. While there are no bright-line rules, such genres as parody and criticism are enumerated by statute and case law as presumptively fair uses...Works of fanfiction are more likely to constitute fair use if they are "transformative" with respect to the original work, if they are non-commercial, if they appropriate relatively little of the original work, and/or if they do not tend to detract from the potential market for or value of the original work.

From the article, it sounds like major creators like movie studios and big-name writers have developed with fanfiction sites an agreement for how fanfiction should work. Nothing legal or formal. I'm going to assume that Literotica follows that working agreement.

 

[KeithD]

Fan fiction would more likely be a problem as trademark violation than copyright violation.

 

[8letters]

The article discusses trademark violation too. No case law on it, but it sounds less of a threat to fanfiction than copyright

If the trademark holder can show that its creation acts as a distinctive source identifier, s/he still must prove a likelihood of confusion to prevail in a trademark infringement claim. Different courts consider similar but not identical factors when deciding likelihood of confusion. Common factors that may be relevant to fanfiction include:

1. How well known and distinctive the mark allegedly being infringed is;
2. How similar the infringing mark is to the original mark;
3. How similar the allegedly infringing goods or services are to the markholder's goods or services;
4. Whether the infringer intended to deceive the purchasing public or to trade on the good will of the markholder;
5. The level of sophistication of those persons or groups likely to be the consumers of the mark;
6. Whether consumers were actually confused as to the source of the goods or services.

The courts can weigh the factors in individual cases, and may consider additional factors as they please.

To the extent that fanfiction uses source-identifying characters, settings and such, the marks are often well known are identical to the original, and are used in similar types of goods (i.e., written fiction). In this way, the first three factors relayed here weigh for the trademark holder.

However, fanfiction writers generally do not intend to deceive the consuming public as to the source of the work, and often include prominent disclaimers at the outset of their works stating that the works are not the products of the original creators, both to honor the original creator and to prevent any possible confusion as to source. In addition, as a consuming audience, fanfiction readers are generally sophisticated regarding works' status as fanfiction, and are aware that fanfiction is not written or endorsed by those who hold the trademarks. As such, the last three factors tend to weigh in the direction of fanfiction writers.

Trademark holders may also allege that the use of trademarked characters, settings, etc. may constitute trademark dilution. The concept of trademark dilution is that overuse or improper use of a mark, even when it does not create consumer confusion, can lessen the mark's uniqueness and value as a source identifier. A dilution claim requires that the mark in question be famous throughout general consuming public and that the use of the mark create a likelihood of either "blurring" or "tarnishment." A likelihood of blurring occurs when the use of the mark creates an association that is likely to impair the distinctiveness of the famous mark; a likelihood of tarnishment occurs when the use of the mark creates an association that is likely to harm the reputation of the famous mark.

 

[lovecraft68]

They never give official authorization; they don't pursue remedies. Disney doesn't go after the porn industry's stuff to not draw attention to it. The less graphic things do no harm and often promote the original, so most copyright holders leave them alone.

People are forgetting that things like X-rated movies based on Super Heroes or Disney etc fall under parody and that's why they don't go after it...and I think your point factors in too.

I remember asking a friend how all these bands/singers on you tube are making bank doing covers of people's songs and their answer was it falls under parody, even though the songs aren't comedic, but just different versions. As long as they acknowledge the original artist in the credits they're usually fine.

Which makes me wonder if one could view someone taking another person's story and rewriting it their way in the same light, providing they credit the original author.

What I do know is its a colossal waste of time arguing over copyright law because right/wrong or in between, who here is lawyering up and taking someone to copyright court?

The irony is that the same people who post stories on a free site anyone can access and know-and have had this happen-that anyone can steal their story word for word and publish it on another site, or even for sale, but keep posting here are getting up in arms about this. If you don't want it taken, don't post here.

That's not me advocating taking someone's work, to me that's unethical(and lazy, write your own story) but I do feel like its a enter at your own risk scenario

 

[8letters]

People are forgetting that things like X-rated movies based on Super Heroes or Disney etc fall under parody and that's why they don't go after it...and I think your point factors in too.

I remember asking a friend how all these bands/singers on you tube are making bank doing covers of people's songs and their answer was it falls under parody, even though the songs aren't comedic, but just different versions. As long as they acknowledge the original artist in the credits they're usually fine.

Which makes me wonder if one could view someone taking another person's story and rewriting it their way in the same light, providing they credit the original author.

What I do know is its a colossal waste of time arguing over copyright law because right/wrong or in between, who here is lawyering up and taking someone to copyright court?

The irony is that the same people who post stories on a free site anyone can access and know-and have had this happen-that anyone can steal their story word for word and publish it on another site, or even for sale, but keep posting here are getting up in arms about this. If you don't want it taken, don't post here.

That's not me advocating taking someone's work, to me that's unethical(and lazy, write your own story) but I do feel like its a enter at your own risk scenario

My reading of the Wikipedia article leads me to believe that someone rewriting another author's story or writing a sequel/multiple chapters would have the same "fair use" defense that fanfiction has. Even stronger because the original work has no market value.

 

[MillieDynamite]

I don't get up in arms about much of anything. Certainly, when someone puts my work up on Amazon, I report them and provide my links to the same stories, with the original publication dates (always before the copier), and so far, Amazon has removed the offender's um 'work' and usually kills the account. It's happened twice to date.

People are forgetting that things like X-rated movies based on Super Heroes or Disney etc fall under parody and that's why they don't go after it...and I think your point factors in too.

I remember asking a friend how all these bands/singers on you tube are making bank doing covers of people's songs and their answer was it falls under parody, even though the songs aren't comedic, but just different versions. As long as they acknowledge the original artist in the credits they're usually fine.

Which makes me wonder if one could view someone taking another person's story and rewriting it their way in the same light, providing they credit the original author.

What I do know is its a colossal waste of time arguing over copyright law because right/wrong or in between, who here is lawyering up and taking someone to copyright court?

The irony is that the same people who post stories on a free site anyone can access and know-and have had this happen-that anyone can steal their story word for word and publish it on another site, or even for sale, but keep posting here are getting up in arms about this. If you don't want it taken, don't post here.

That's not me advocating taking someone's work, to me that's unethical(and lazy, write your own story) but I do feel like its a enter at your own risk scenario

 

[lovecraft68]

I don't get up in arms about much of anything. Certainly, when someone puts my work up on Amazon, I report them and provide my links to the same stories, with the original publication dates (always before the copier), and so far, Amazon has removed the offender's um 'work' and usually kills the account. It's happened twice to date.

The latter part of my post was aimed more at a general you not "you" you....if that makes sense.

 

[SimonDoom]

Setting aside, for the moment, the question of exactly what this Site does and does not permit, there's a lot of misunderstanding being circulated about fair use and fanfiction under the law in this thread.

"Fair use" (under US law; my understanding is UK law is similar) is a fairly limited defense to copyright infringement. It's invoked when the copyright owner can prove that the defendant in some way infringed (used without authorization) the exclusive rights in their copyrighted work, but there's something about the nature of the infringement that brings it under the "fair use" exception to infringement.

Fair use is defined in section 107 of the Copyright Act:

"Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors."

Obviously, this isn't the clearest language in the world. If you want to know what the US Supreme Court says about what it means, you should read two cases: Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994), and this year's decision, which somewhat clarified earlier law, Andy Warhol v. Goldsmith, 598 US ___ (2023).

Fair use usually involves criticism or commentary, parody, and transformative works. What constitutes a "transformative work" is somewhat unclear, but it usually is something like a parody, where the original work is used in a way totally different from the original or critiqued or parodied. The application of "transformative use" is limited.

Writing a sequel to a story, or finishing an unfinished story, is not a fair use. It's a derivative work, which is defined under section 101 of the copyright act and expressly described as one of the exclusive rights of the copyright owner in section 106. It MIGHT be a fair use if the finishing chapter that you write makes fun of and parodies the original unfinished work. But otherwise, it's not a fair use. The mere fact that nobody is making money, by itself, does not make something a fair use. It's just one of several non-determinative factors a court will consider.

Most fanfiction probably is not fair use, and if the copyright owner bothered to sue, in most cases the copyright owner probably would win. It might be a fair use if you could claim that the new work was a parody of the old. You might pull that off if you rewrite a serious modern story and turn it into a sex romp that spoofs the original story. An example I remember seeing back in the day was Flesh Gordon, a ridiculous X-rated parody of Flash Gordon. The maker of that film even inserted a disclaimer that it was intended as a burlesque parody and that it was not to be confused with the original.

The main reason fanfiction exists and is so seldom disturbed by copyright suits (although sometimes they do sue and are successful) is practical and economic rather than legal. Authors have realized that fanfiction, far from depriving them of revenues, helps them, by building a larger fanbase and thereby increasing their fame and popularity. Some authors still don't accept it, and send cease and desist letters, but others do.

Fanfiction is in a weird legal no-man's land where as a practical matter the fanfiction author probably is safe but nevertheless could be exposed to liability if the copyright owner wanted to press the matter.

 

[MillieDynamite]

L.J. Smith had to write some of her Vampire Diaries as FanFic after her firing and before they hired her back. Those stories are for sale, I believe the fact Alloy Entertainment put the copyright in her name dealt them a serious blow in trying to stop her writing about her characters. But that's a different can of worms.

OH, my, worms, are we going fishing?

Setting aside, for the moment, the question of exactly what this Site does and does not permit, there's a lot of misunderstanding being circulated about fair use and fanfiction under the law in this thread.

"Fair use" (under US law; my understanding is UK law is similar) is a fairly limited defense to copyright infringement. It's invoked when the copyright owner can prove that the defendant in some way infringed (used without authorization) the exclusive rights in their copyrighted work, but there's something about the nature of the infringement that brings it under the "fair use" exception to infringement.

Fair use is defined in section 107 of the Copyright Act:

"Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors."

Obviously, this isn't the clearest language in the world. If you want to know what the US Supreme Court says about what it means, you should read two cases: Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994), and this year's decision, which somewhat clarified earlier law, Andy Warhol v. Goldsmith, 598 US ___ (2023).

Fair use usually involves criticism or commentary, parody, and transformative works. What constitutes a "transformative work" is somewhat unclear, but it usually is something like a parody, where the original work is used in a way totally different from the original or critiqued or parodied. The application of "transformative use" is limited.

Writing a sequel to a story, or finishing an unfinished story, is not a fair use. It's a derivative work, which is defined under section 101 of the copyright act and expressly described as one of the exclusive rights of the copyright owner in section 106. It MIGHT be a fair use if the finishing chapter that you write makes fun of and parodies the original unfinished work. But otherwise, it's not a fair use. The mere fact that nobody is making money, by itself, does not make something a fair use. It's just one of several non-determinative factors a court will consider.

Most fanfiction probably is not fair use, and if the copyright owner bothered to sue, in most cases the copyright owner probably would win. It might be a fair use if you could claim that the new work was a parody of the old. You might pull that off if you rewrite a serious modern story and turn it into a sex romp that spoofs the original story. An example I remember seeing back in the day was Flesh Gordon, a ridiculous X-rated parody of Flash Gordon. The maker of that film even inserted a disclaimer that it was intended as a burlesque parody and that it was not to be confused with the original.

The main reason fanfiction exists and is so seldom disturbed by copyright suits (although sometimes they do sue and are successful) is practical and economic rather than legal. Authors have realized that fanfiction, far from depriving them of revenues, helps them, by building a larger fanbase and thereby increasing their fame and popularity. Some authors still don't accept it, and send cease and desist letters, but others do.

Fanfiction is in a weird legal no-man's land where as a practical matter the fanfiction author probably is safe but nevertheless could be exposed to liability if the copyright owner wanted to press the matter.

 

[SimonDoom]

I remember asking a friend how all these bands/singers on you tube are making bank doing covers of people's songs and their answer was it falls under parody, even though the songs aren't comedic, but just different versions. As long as they acknowledge the original artist in the credits they're usually fine.

It may depend upon the particular cover, but as a general matter of law your friend is wrong. Most cover bands, if they are doing things legally, have to obtain either performing arts licenses (the right for a band to perform a song in public or at a club), or a recording license (the right to make a new recording of a song in a studio), particularly if they are making money from the performance. A cover is not a parody. Parody usually involves a comedic or critical approach to the original work. Most cover bands don't qualify.

Weird Al Yankovic is an artist who has made an entire career of recording parody versions of famous pop songs. His songs are legitimate parodies, because he usually spoofs and twists some aspect of the original song, as in his songs "Amish Paradise" or "Smells Like Nirvana." But even Weird Al, in an abundance of caution and out of courtesy, typically has sought and obtained permission before recording his parody songs.

People get away with covers, reproductions, and uses of songs in social media like YouTube, TikTok, and Instagram because, well, they just do. Major music companies have for the most part decided it's not worth going after them. But that doesn't mean that as a matter of law those reproductions are legal fair use. And it doesn't mean they WON'T go after them in the future if they think it's financially worthwhile for them to do so.

 

[SimonDoom]

This is the reply I received today from Laurel on this subject:

Hello Simon,

Thanks for writing and I hope you are well.

Our policy on works derivative of other Literotica author's creations is: to avoid conflicts after posting we ask that you please contact the original author and get permission before submitting and let readers know in the intro to the story that you have such permission. Also, please credit the original author's story. If the original author has given blanket permission within the text of the original story, then the continuing author does not need to ask for specific permission. However, if the original author requests that we remove any derivative work, we will remove it - even if permission was given previously.

If you have any questions, please let me know.

Thanks again and take care.