(Just so everyone is on the same page)

[The original post]

pumpernickelandcoal:

the-last-secret-garden:

a-handful:

pumpernickelandcoal:

Well, that depends on whether or not you consider someone’s identity a derivative work [made] without the permission of the copyright owner.” And what the law might allow that to be and what any individual fictive or fictionkin might believe are kind of two different things.

For example, if someone was Mickey Mouse and Disney (as they enjoy doing) sues that fictive/fictionkin for claiming that identity publicly it is actually kind of likely that the courts could rule against the fictionkin/fictive and file an injunction against them at the very least using that name,

/idle interest in copyright law

This. I really don’t get how this proves fictives are acceptable legally, as the last secret garden thought.

My point isn’t that it proves it’s legally acceptable so much as that it makes me angry that FANFIC WRITERS are telling fictives they’re committing intellectual theft. It’s the hypocrisy I was pointing out - not the legality of fictives.

Although I really don’t think there would be a strong court case against someone’s identity unless they’re using a copyrighted name as their legal name, or something? Online, I think it’s a bit sticker. You can change your blog title to whatever you want, and your screenname/handle/nick/whatever to anything. How is that an enforceable law? 

Disney could be like “cease and desist calling yourself Mickey Mouse” but I can’t see why they’d bother if it’s just an online setting?

Offline I think it’s trickier but even most fictives or fictionkin I know aren’t using copyrighted names as their legal names…although I think many names aren’t inherently copyrighted; there are probably people who are legit named Harry Potter or Bruce Wayne, for instance, that aren’t being sued for it.

It depends a lot on whether or not you’re making money off of it. Most companies won’t bother to sue unless you’re doing something to make money off the name. Some companies are way more litigious about that than others, tho. And I can see, say, DC asking an author to use their middle initial as a method of differentiation if their name was Clark Kent or Bruce Wayne.

Copyright does not protect names, titles, slogans, or short phrases. In some cases, these things may be protected as trademarks.

— http://www.copyright.gov/help/faq/faq-protect.html

In the legal world, fan fiction’s status is somewhat unclear because of a lack of clear legal precedent in case law. Most legal scholars consider fan fiction to be a form of “derivative fiction”.

— http://www.whoosh.org/issue62/ecks2.html#curse

* ‘Copyright violation’ does not turn into ‘not copyright violation’ when no profit was made.
* ‘Illegal’ does not turn into ‘legal’ when you do not get accused/sued. 

——

In some cases of fictionkin/fictives their blogs or some posts of theirs can be considered derivative works of the source material, legally on the same level with fanfiction, depending on how extensive it gets. Saying “I am Loki” in a post is not illegal on any level, but writing posts about your life and basing it off specific source material (say, Thor and The Avengers) (I’m not saying that any specific person has done this) will make those posts derivative works of the original, almost like fanfiction except with the added implication that the original creator did not come up with that stuff at all.

I don’t know what lawyers would have to say about that, but I think original fiction writers and generally decent people would say that it is immoral.

Even if one doesn’t create any works about ‘their’ life, but shortly claim that they ‘are’ [insert fictional character, with their created history intact (not just the name)], then the implication^ remains, and is still unethical, and it may borderline on legally serious when one publishes ‘explanations’ about their existence and claim that the original writer simply channeled or borrowed from one’s ‘reality’, and didn’t actually create that stuff. THEY DID. One’s metaphysical beliefs (fictions=realities) do not change reality for the rest of us. Fiction writers create their own characters and their histories and they deserve the credit for that.

(Let’s not get into how Marvel!Lokis and so on were obviously borrowed from Norse mythology, this is not what we’re talking about. All fictional characters are to some extent based on previously existent stuff. It still takes effort for the creator to create something out of something else. [Teenage heroes, wizards, and “chosen ones” have existed before but Harry Potter the wizard is a unique creation.])

oh lmao. someone's -identity- isn't "copyright infringement". Who you are isn't INFRINGING on anything. Plz stfu
Anonymous

Cry more. No sane person buys into the lame “identity” excuse.

I wasn’t making any claims in that post. People on both sides of the issue have said some uninformed things, I made the effort for them to google that stuff.

(Just so everyone is on the same page)

What is copyright infringement?

As a general matter, copyright infringement occurs when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner.

— http://www.copyright.gov/help/faq/faq-definitions.html

Copyright infringement is the unauthorized use of works under copyright, infringing the copyright holder’s “exclusive rights”, such as the right to reproduce or perform the copyrighted work, spread the information contained within copyrighted works, or to make derivative works. It often refers to copying “intellectual property” without written permission from the copyright holder, which is typically a publisher or other business representing or assigned by the work’s creator.

— http://en.wikipedia.org/wiki/Copyright_infringement

Question: Is FanFic an illegal act of copying?

Answer: If a Fan Fiction author uses copyrighted elements in someone else’s work in his/her story, then the fan fiction may be a derivative work. There are many elements of a work that an author can borrow. The law, however, does not clearly define whether fictitious characters, worlds, histories and names are copyright protected.

Question: How can I tell if a character I have used is copyright protected?

Answer: The prevailing rule seems to be that a character is copyrightable separate from the original work if the character is “distinctly delineated.” Authors can have a separate copyright protection for the characters in their works only if they have been developed and constitute original expression. Generic characters (the sidekick, for example) are not protected. Some courts require this delineation to be quite extensive, to the point that the character “constitutes the story being told.” In Nichols v. Universal Pictures Corp., 45 F.2d 119 (2d. Cir. 1930), however, the court held that the character needs simply be more than just a “type” and this is achieved when they are drawn in considerable detail. If characters with visual images are involved (i.e., cartoons, movies, etc.), then courts are more likely to allow copyright protection because the visual image combined with conceptual qualities gives courts a more concrete sense of character delineation. (See Rocky IV example below).

But what if these elements were not just ordinary scènes à faire? What if these worlds were elaborately filled with details? Under the character analysis above, these worlds and events would probably also receive copyright protection. Again, the distinction is that normal plots like boy-meets-girl cannot be copyrighted (just like how stock characters like the “sidekick” are not copyrightable), but the more detailed the plot is, the more it becomes protectible expression.

— http://chillingeffects.org/fanfic/faq.cgi#QID139

In determining infringement, a court will separate unprotectible ideas from protectible expression. Not all elements of a copyrighted work are protectable. For example, stock characters (the sidekick or the gay best friend) or plots (boy meets girl, aliens attack the Earth) are not protected. Remember, ideas aren’t protected, but the way they are expressed is. The more elements from some other work that your work incorporates, the more susceptible it is to a claim of infringement. Of course, your story may depend on the fact that its about Captain Kirk or Agent Scully for its interest and importance.

— http://chillingeffects.org/fanfic/faq.cgi#QID310

theyliveforever:

hailmalthus:

sugarpig:

A Handful: I can guarantee you that George R.R. Martin would AT LEAST hate fictionkin with a fiery passion.

a-handful:

sugarpig:

hailmalthus:

I mean, the man hates people writing fanfiction about his books, because he feels like it infringes on the story he wrote and it bastardizes the characters (which, as my past bad self-insert spam showed y’all, isn’t an entirely unfounded feeling).

If he knew people out there…

Because the very nature of the claim implies the author/creator of the work did not create it, it already existed, which is pretty infuriating.

My husband didn’t get why I was so upset by the idea until I posed it to him in a way that he could relate to. Say he met a fan of his band who came up to him and said “Hey, I actually wrote all your songs but good job channeling them and publishing them for everyone else, you did a great job capturing my work and what I was going for.”

No…just no.

tl;dr: You don’t know anything about fictionkin/fictives. Or writing, really. Got it.

That’s like walking up to someone who built a sculpture and said “Hey, I totally had the idea of that sculpture, so all of the skill that went into making it is invalid”. See, here’s the thing, writing is a skill. You don’t just sit down and crap something out- even if God himself comes down and whispers in your ear, if you don’t know how to write a decent story it’ll be shit. Tales that recount historical events are not invalid just because they didn’t make up the event- they still require knowing how to weave the language, knowing what adjectives and verbs to use out of a myriad of synonyms, knowing what parts to emphasize and such. 

And then fictionkin it’s even more difficult, because even if there is some world where the story happened- REALLY HAPPENED- authors rarely have a great connection to it, or they’d be aware of this, so they get snippets and fragments and whispers and have to cobble it all together. If you knew ANYTHING about fictionkin and fictives, you’d know that often our canons aren’t 100% accurate to our lives and memories, because the authors leave things out and change them to make a better story. 

You’re basically saying that journalists and historians aren’t really writers just because they write about things that “really” happened, you’re erasing ALL of the effort that goes into the craft of writing, and it’s obnoxious and pathetic and that you’re using it to tell people who DO EXIST that their EXISTENCE is wrong is pitiful.

….wait, what.

I know a lot about writing. I’m a writer myself. I’d never insult historians or journalists. You’re going out of the very word that’s inspiring the debate in the first place. FICTIONkin.

“Worlds where they really exist” would be inside the author’s mind only. The fact you give that idea any plausibility just…how can I debate with you? We’re not on even ground. If you’re going to be very vocal about being a fictionkin, I think you should expect the negative feedback because of what you are implying to everyone who does not subscribe to that theory.

I would wager the “canons are not accurate” because you are not actually the characters, who are fictional, who are created by the author, who is the only person who knows them perfectly, because they created them. Also, they’re not real. I am not erasing all the work that goes into writing, YOU are. Also show me where I said someone’s existence was wrong or pitiful, I never said that.

I think you’re disrespecting the authors, who are the inventors/creators of the characters. Did you yourself not say “I realized I was Bruce Banner after roleplaying him”. That’s pretty much my case in point there.

I’m not going to encourage anyone who follows this completely irrational and insulting line of thought and then calls me a bully for not believing they are a fictional character. Believe whatever you want, I don’t have to believe you, and if I ever found a fictionkin using my material, I’d sue the pants off of them. From being a writer, I can tell you, there’s no “channeling” involved. There is skill, and there is creativity. But it’s 100% mine. And I’m willing to bet that’s the same for every fiction writer on this planet, and who ever lived. You’re insulting the power of their minds and their creativity and the very works they’ve created by claiming to actually be their characters. I don’t get what’s so hard to understand about that.

You and I are never going to see eye to eye, but I hope you can at least understand the outrage and where it’s coming from?

I’m a writer as well. Screenplays mostly, which is a different medium to be sure, though  no less difficult and exhausting. And this is the stupidest argument I’ve ever heard. If someone created their own story from scratch, and put all that time and effort to create an amazingly complex plot and a rich setting with vivid characters—to the point where they’re actually offended by people trying to change these things in their own writing—do you really think they’d give a shit that you like their rhetoric? A painter doesn’t want to be remembered for their brush strokes, nor does a composer want to be remembered for their time signature. These are pieces of the art, true, but that’s not what art is—art is emotion, creativity, inspiration… and a ridiculous amount of hard work. By saying none of this comes from the artist, you are taking away what that artist truly cares about. That is just the most horrible thing you can do to someone who works in a creative medium. Not just saying you don’t like what they did or something simple like that, but simply saying they didn’t do it? And saying that it’s a fact, because… you say so, with all your knowledge and authority on the thing that THEY created? Seriously, I don’t know how you people live with yourselves. You’re the most insulting people to me, and to all the artists that I’ve idolized for my entire life. Neil Gaiman, Nicole Galland, Holly Black, Terry Pratchett, Edgar Wright, Edgar Allan Poe, J.K. Rowling, the Coen Brothers, Russell T. Davies, Joss Whedon, Stephen Moffatt, Ben Edlund, GRRM—you’re blatantly insulting all of them, and taking away everything that they’re trying to accomplish.

And you know what that “not 100% accurate” thing is? That’s called headcanon. That’s called shipping. That’s called you deciding you don’t quite like the way the author did something, and deciding you’d have preferred it to go another way. Fans do this all the fucking time—come up with their own ideas, their own “alternate universes” all the fucking time. So how come when YOU GUYS say it, suddenly it’s more accurate than the creator of the series, but when another fan says something that conflicts with your idea it’s just because they’re an ignorant human who can’t truly know the happenings of that world like you can.

It’s just so transparently vain, to say that you know a story better than the creator. So vain to say that years and years of someone else’s hard work was just secondhand. So vain to say that you’re really truly an awesome character from a popular series that lots of other people love, but no one else is. So vain to say that out of the great cosmos a soul found it’s way from, not only another planet, but another dimension, came zooming all the way through space in time to find earth, and just so happened to land in your body. And you have no explanation for it, other than you just being that awesome and that lucky and the universe just must like you better than everyone else. And I’m the ignorant one here?

Honestly, the narcissism, feeling of entitlement, and just “better than thou”ness of it is near nauseating. And I can’t believe that when someone tries to call bullshit, you try to make it sound like oppression.

I stand by my original point. There are writers out there who would hate you for this, and I wouldn’t blame them for a second.

I fucking hate fictionkin and fictives. How dare you say we don’t know anything about writing? Guess what, here’s another writer. I can create a good story with good characters because I have something called imagination. If I ever published a book and found out that someone is claiming to be one of my characters, I’d be so fucking infuriated. Like someone said before, I would sue the crap out of them. Because it’s just plain insulting. How can you say that canon isn’t accurate? The only canon is the one that the author created; the things YOU imagine are called headcanon. In case you didn’t know, the first time the word canon was used (when talking about fiction) was to make reference to the works of Sir Arthur Conan Doyle, who manage to create an incredibly fascinating character that unfortunately some people are claiming to be. And you say we should believe them? These people; people who actually say that they are a character and know more about the story and its world than the actual author. How fucking disgusting and self-entitled. I once saw someone on Tumblr who “identified” as Cthulhu. They made a post and wrote smiley faces and all kinds of crap. Really? Cthulhu and smiley faces? It’s completely insulting. Fictionkin and fictives ARE offensive to the authors who actually created the characters. In fact, they are offensive at any writer. And hey, we actually have a proper reason to be offended, unlike you! Writing is really hard; sometimes we have to deal the well-known “writer’s block”. We need to actually pour all our creativity and imagination to produce something good. We have to edit our stories a million times because we don’t feel satisfied. We can get really fucking stressed. But we don’t stop until we feel accomplished. And when we’re done, we read them and we feel proud of ourselves because we think “I made this”. You’re not going to invalidate all of that work. You’re not. If you do, then don’t get mad at us for calling you a fucking asshole, because that’s what you are.

PS: Writing is NOT a skill. It’s not just knowing how to use words and configure sentences. Writing is a process that involves creativity and more.

sugarpig:

a-handful:

This post is just really freaking annoying me. Still.

Because it makes no damn kind of sense. Harry did not write the Harry Potter series- and more “minor” characters who weren’t privvy to everything related to the plot sure as hell didn’t. And it gets worse for series that aren’t told from one…

I’m officially wasting my time. We make perfect sense. Of course Harry Potter didn’t write Harry Potter, J.K. Rowling did, because Harry isn’t real, she made him up. Minor characters don’t “think” or “know” anything because they don’t exist. How is this so hard to understand. Fiction. Maybe you need the definition of fiction. You really don’t understand the writing process at all, do you? Or reality, it seems. I give up.

sugarpig:

a-handful:

sugarpig:

hailmalthus:

I mean, the man hates people writing fanfiction about his books, because he feels like it infringes on the story he wrote and it bastardizes the characters (which, as my past bad self-insert spam showed y’all, isn’t an entirely unfounded feeling).

If he knew people out there…

Because the very nature of the claim implies the author/creator of the work did not create it, it already existed, which is pretty infuriating.

My husband didn’t get why I was so upset by the idea until I posed it to him in a way that he could relate to. Say he met a fan of his band who came up to him and said “Hey, I actually wrote all your songs but good job channeling them and publishing them for everyone else, you did a great job capturing my work and what I was going for.”

No…just no.

tl;dr: You don’t know anything about fictionkin/fictives. Or writing, really. Got it.

That’s like walking up to someone who built a sculpture and said “Hey, I totally had the idea of that sculpture, so all of the skill that went into making it is invalid”. See, here’s the thing, writing is a skill. You don’t just sit down and crap something out- even if God himself comes down and whispers in your ear, if you don’t know how to write a decent story it’ll be shit. Tales that recount historical events are not invalid just because they didn’t make up the event- they still require knowing how to weave the language, knowing what adjectives and verbs to use out of a myriad of synonyms, knowing what parts to emphasize and such. 

And then fictionkin it’s even more difficult, because even if there is some world where the story happened- REALLY HAPPENED- authors rarely have a great connection to it, or they’d be aware of this, so they get snippets and fragments and whispers and have to cobble it all together. If you knew ANYTHING about fictionkin and fictives, you’d know that often our canons aren’t 100% accurate to our lives and memories, because the authors leave things out and change them to make a better story. 

You’re basically saying that journalists and historians aren’t really writers just because they write about things that “really” happened, you’re erasing ALL of the effort that goes into the craft of writing, and it’s obnoxious and pathetic and that you’re using it to tell people who DO EXIST that their EXISTENCE is wrong is pitiful.

….wait, what.

I know a lot about writing. I’m a writer myself. I’d never insult historians or journalists. You’re going out of the very word that’s inspiring the debate in the first place. FICTIONkin.

“Worlds where they really exist” would be inside the author’s mind only. The fact you give that idea any plausibility just…how can I debate with you? We’re not on even ground. If you’re going to be very vocal about being a fictionkin, I think you should expect the negative feedback because of what you are implying to everyone who does not subscribe to that theory.

I would wager the “canons are not accurate” because you are not actually the characters, who are fictional, who are created by the author, who is the only person who knows them perfectly, because they created them. Also, they’re not real. I am not erasing all the work that goes into writing, YOU are. Also show me where I said someone’s existence was wrong or pitiful, I never said that.

I think you’re disrespecting the authors, who are the inventors/creators of the characters. Did you yourself not say “I realized I was Bruce Banner after roleplaying him”. That’s pretty much my case in point there.

I’m not going to encourage anyone who follows this completely irrational and insulting line of thought and then calls me a bully for not believing they are a fictional character. Believe whatever you want, I don’t have to believe you, and if I ever found a fictionkin using my material, I’d sue the pants off of them. From being a writer, I can tell you, there’s no “channeling” involved. There is skill, and there is creativity. But it’s 100% mine. And I’m willing to bet that’s the same for every fiction writer on this planet, and who ever lived. You’re insulting the power of their minds and their creativity and the very works they’ve created by claiming to actually be their characters. I don’t get what’s so hard to understand about that.

You and I are never going to see eye to eye, but I hope you can at least understand the outrage and where it’s coming from?