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cc-licenses - Re: [cc-licenses] Fanfic-enabling license?

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Subject: Development of Creative Commons licenses

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  • From: Rob Myers <rob AT robmyers.org>
  • To: Discussion on the Creative Commons license drafts <cc-licenses AT lists.ibiblio.org>
  • Subject: Re: [cc-licenses] Fanfic-enabling license?
  • Date: Tue, 29 Nov 2005 20:25:19 +0000

I am not a lawyer, this is not legal advice.

On 29 Nov 2005, at 15:12, Shalon Wood wrote:

The second issue is the fear that if they do not aggressively pursue
violations of copyright in the case of fanfic, they will lose the
right to pursue commercial copyright violations. There are apparently
a large number of lawyers who believe that, like trademarks, copyright
must be defended or lost, and who advise their clients of this. In the
US, at least, this isn't the case, though I don't know about other
countries.

IANAL, but yes, I believe that copyrights are not like trademarks in this respect.

The final issue, however, is a bit stickier. This is the fear by the
original author that they will be sued by a fanfic author for
'stealing' a plot or idea, even if the original author has never read
the fanfic in question. This is, unfortunately, not an unfounded
fear,

Yes. And an unmodified license wouldn't allow the condition "you can derive from this work as long as you don't later claim the original author has ripped you off" to be added.

It might be possible to have a central repository for stories that would have waiving "stealing" claims as part of the upload and hosting agreement, although this probably wouldn't cover stories derived from work that hadn't been submitted to the repository.

and I'm not sure if any of the licenses offer a
solution. BY-SA would do it, as the original author would
automatically have the right to use any of the ideas in the derivative
work. Unfortunately, this would also risk losing the chance to license
the movie rights seperately. I doubt that any of the large movie
companies would be willing to put their adaptation of the work under a
BY-SA license, but the fear would probably keep a publisher from
agreeing to allow an author to use this license.

I agree that BY-SA should act as a deterrent but it's understandable that no-one wants to take the risk where movie rights may be involved.

BY-SA-NC would fix that problem,

As long as the author/project states they do not read unsolicited submissions (and doesn't :-) ), I don't see that there's any difference from normal fanfic. And if the author does read unsolicited submissions (fanfic), then they are open to accusations of "stealing" whether what they're reading is under an NC license or not.

but if I understand correctly, it
wouldn't allow the original author to use items from the derivative
works in a commercial manner...which means it wouldn't solve the
original problem.

What's sauce for the goose is sauce for the gander. :-) If the original author believes a fan's work is valuable enough to want to use then it is valuable enough to pay for. :-) This payment might be monetary or by allowing unrestricted use through BY-SA.

For a large corporate franchise like Star Wars or Lord Of The Rings, commercial use and claims of appropriation could theoretically be regulated using a trademark license alongside the copyright (CC) license, but this would be a bit like using patents to undermine an open source project.

So BY-SA-NC with a separate "we don't read derivatives" disclaimer and a release form people can sign if they want the author/project to read a derivative might be best.

- Rob.




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