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Fic from deleted journals, fair game?

 Hello, I'm new and I have an issue/question. Recently an author deleted their fic from LJ and FF.net by deleting their accounts. The author cannot be reached. I've saved said fic as a PDF and don't know if I can distribute it.

In *my* opinion, this should be fine. After all the author posted the fic to the public. I'm not saying by doing so that they gave up the rights. I'm saying by doing so, they acknowledge the risk of doing so. In addition since posting it to the public, doesn't that mean they wanted it to be seen? That they didn't care if it was to be seen? With that in mind, why wouldn't it be ok to distribute said fic? It has the old author credited. Like I said, just my opinion.

Can I or can't I? I've looked up LJ TOS and FF.NET TOS and they pretty much, to me, say, if you post on our site, we are not responsible for whatever happens.

Comments

( 29 comments — Leave a comment )
kappamaki33
Mar. 24th, 2011 02:01 pm (UTC)
From a legal perspective, if you subscribe to the idea that a person has any rights in fanfic, the right to distribute (or not distribute) is one of them. Essentially, you'd be 1) making a copy of their fic, and 2) distributing it without the author's consent. Attribution doesn't save you. If I Xerox the entire Harry Potter series and keep the "by J.K. Rowling" title page, I'm still infringing her copyright, even if I'm not claiming the work is mine. The same idea applies if I scan the books and post them on my website with the title page intact. What you're proposing to do is no different than that.

If you subscribe to the idea that none of us have any copyright in fan works, then legally, there's nothing the author could do. (Not that fans tend to sue other fans over fan works anyway.)

The TOS are all about saving LJ and FF.net's butts, not yours. What they're saying is, the original author can't go after LJ/FF.net if someone steals what the author posted, or if the author of the original source material thinks the fanwork is infringing. LJ and FF.net have absolutely no interest in protecting users.

All that said, from a fandom etiquette/culture perspective, I think this is a really, really lousy--and, frankly, offensive--idea. Yes, in the age of the Internet, nothing is ever truly gone, even if you delete it. But as a culture, we respect authors' choices when it comes to when, where, and how they post their fanworks.

You posit that, by posting, doesn't that prove the author wanted it to be seen? The key word there is "wanted," past-tense. If the author deleted a fic, it's equally clear that s/he does not want it to be seen anymore. Even profic authors do this sometimes, usually trying to eliminate the widespread existence of earlier works the best they can. Though they can't take away personal copies that have already been purchased, they are completely entitled to stop distribution of new copies, destroy their own originals, and sue anyone who makes illicit copies or public displays/performances of those works (see, for example, how hard it is to find a copy of the Star Wars Christmas Special).

I'm not trying to be mean (and I've edited myself very heavily in an attempt to tone things down), but man, if someone in my fandom did what you're proposing? That someone would no longer be welcome there, at all. My advice is, just be happy you saved the fic to your hard drive before the author deleted it, so at least you can enjoy it.
(Deleted comment)
astridv
Apr. 20th, 2011 08:07 am (UTC)
What? No. Look, I'm not a lawyer either but that's not what public domain means, even I know that. (I'm an artist and try to keep myself informed about copyright issues.)

The act of publishing something online != the work entering the public domain.
(Deleted comment)
astridv
Apr. 20th, 2011 08:46 am (UTC)
I'm not sure how to interpret your comment, do you think that the act of making a story available for free means that it enters the public domain? That is not the case.

If I post a story or art to LJ, for others to enjoy for free, that doesn't mean they enter the public domain (unless I specifically state so). The rights remain with me, the creator. Fanart and -fic is no exception, except that the rights situation is much more complex (and here's where you need an IP lawyer or better yet more than one) because the rights for the characters and universe lie with the original creators while there are original elements in fic and fanart, the rights of which lie with the fan creator.

Fanfic is not "never protected by copyright law".

Actually I'm pretty sure a commenter below stated the same, earlier. Ah, yes, scroll down to st_marc's comment.
(Deleted comment)
astridv
Apr. 20th, 2011 10:35 am (UTC)
I made no mention of "never protected by copyright law." I think you're confusing me with, Ah, yes, scroll down to calliopeia17's comment.

You quoted this in the original comment which I replied to before you deleted it (copied from my mail inbox):
If you'll reread my post, I said that "freely distributed publications"
enter the public domain. To quote from your own source, "...it consists
of works that are no longer in copyright term or were never protected by
copyright law."


What I'm saying is that vickyblueeyes is legally able to distribute the fic to others; not claim it as her own or sell the work.

As long as OP is just talking about mailing fic to a few friends, I believe that would be the equivalent to lending print books to friends. I see no problem there.

Publishing the entire work in a different place would a different animal though; it wouldn't be legal for her to post it online since copyright includes the right reproduce, print or publish the work. (Now, if she did, I agree that there's not much the original fan writer could do to stop it but that's not the point.)

(Actually what OP had in mind seemed somewhere in the middle. link. A tricky situation. I'm not sure where I'm standing on this myself, haven't given it enough thought.)

Anyway, I have to go offline now.
(Deleted comment)
kappamaki33
Apr. 20th, 2011 12:44 pm (UTC)
I just make the point that to say that "legally" one is not permitted to do so is incorrect. It's my idea (and that of the government's) that unless it can be held up in a court of law it just doesn't fit the bill; and fanfiction will not hold up as a copyrighted work.

I think maybe the problem was you didn't read my whole comment, because I clearly argued in the alternative, with one paragraph of "if you subscribe to the idea that a person has any right in fanfic" and one paragraph of "if you subscribe to the idea that none of us have any copyright in fan work." The line between infringing derivative works and transformative works that are protected (and independently copyrightable) under the fair use exception is not a bright one, and there are legal scholars and lay persons who make compelling arguments on both sides of the debate. (See http://fanlore.org/wiki/Legal_Analysis for citations to several articles published in legal and scholarly journals that debate this topic.) You've come down clearly on one side of the debate, and that's perfectly legitimate, but that doesn't make my pointing out that there are two schools of thought on this issue wrong.
(Deleted comment)
astridv
Apr. 20th, 2011 08:52 am (UTC)
AKA What you're doing by creating fanfiction (works created with the influence of copywrited material).

That has really nothing to do with public domain, most popular canon material is still firmly within their copyright protection period (unless you're working with older canons like, Shakespeare or Jane Austen.) Fanwriters/artist rely on the the Fair Use doctrine when we create derivative, not-for-profit fanworks of copyrighted material.
kappamaki33
Apr. 20th, 2011 12:33 pm (UTC)
I'm a law student, actually. Though I don't claim to know everything about law in general or copyright in particular, I do know quite a bit about the law in the area my post references. Otherwise, I wouldn't have posted it.

I clearly started out my comment with "if you subscribe to the idea that a person has any rights in fanfic," which is a point of some debate because of the copyright protections available to transformative works under the fair use exception (17 USC 107; for more information on this viewpoint, which I neither subscribe to nor reject in my previous comment, see Organization for Transformative Works: http://transformativeworks.org/about). I do believe I stated right after that that if you subscribe to the alternate viewpoint that there is no copyright in fan works, then there is no legal recourse. Perhaps I should have clarified that there would be no copyright in a work that infringes another's copyright, so there would be no copyright in fanfic if you subscribe to the viewpoint that fanfic is infringing derivative work that is not excepted under fair use (See Anderson v. Stallone, http://www.kentlaw.edu/faculty/rwarner/classes/legalaspects_ukraine/copyright/cases/anderson_v_stallone.html).

Copyright in a work is automatically created and vested in the author (17 USC 201a). The control over that work only belongs to a publisher if the author grants them that control (17 USC 204), so I have no idea what you're talking about there (possibly the Work for Hire doctrine in 17 USC 101, though that is an extremely narrow doctrine with no applicability here). Free distribution--or any kind of distribution, for that matter--of material embodiments of the work has absolutely nothing to do with whether it falls into the public domain (17 USC 203, on ownership of a physical embodiment of a work as opposed to ownership of a copyright in the work; see 17 USC 106 for a list of rights that copyright gives an author, including control over the distribution of that work; see also 17 USC 302 for a description of when copyrighted works created after Jan. 1, 1978, enter the public domain). The rights that go along with copyright which I listed above are in 17 USC 106.

Also, I looked at your subsequent posts. 17 USC 106 (rights) and 17 USC 501 (infringement) are not premised on attribution or profiting from stealing someone else's work. You better believe JK Rowling would sue for an injunction if I had e-mailed pdfs of her books to a million people for free, even if I kept her name on the title page. You can look through the entirety of Title 17 if you don't believe me, but copyright creation has absolutely nothing to do with whether a work was created or distributed for financial gain. The key question is whether the work has been "fixed," in other words no longer just an idea in your head but reduced to some tangible form of expression (and computer files certainly count) (17 USC 101).

I believe your following sentences about the "murkiness" of copyright go back to what I was talking about in the first paragraph, that there is an open debate as to whether fanfic qualifies for the fair use exception to copyright infringement or not.

Not to get too snippy with you, but I think you should take your own advice. I apologize if I caused any confusion by not prefacing my statement as more specifically being based on United States copyright law. I also apologize if my not citing to statutory and case law in the previous comment caused any confusion, but I didn't want to seem overly pedantic.
vamysteryfan
Mar. 24th, 2011 02:33 pm (UTC)
I second kappamaki33's comments. The author took it off the Net which mean he/she doesn't want it seen/read/distributed any more. It's basic courtesy to respect the author's wishes.




Edited at 2011-03-24 02:33 pm (UTC)
kaylle
Mar. 24th, 2011 02:48 pm (UTC)
I agree with what's been said above. I'm not a lawyer, but from a fandom culture perspective, this is heavily frowned upon in every fandom I've been a part of. We tend to be respectful of an author's right to control where their story is archived and how it is distributed. The argument that by putting it on the internet they've lost all control of it may be strictly true legally, but it isn't a very good moral argument.
fides
Mar. 24th, 2011 03:03 pm (UTC)
It just isn't fannish practice to post it back to the web without permission of the author. It's just not done and I would expect there to be a backlash against it.

That said, I slightly disagree with the previous posters that it is never, ever acceptable because it isn't totally unknown for people to ask about a story that has been taken down and for someone to say that they have a copy... and then for a private discussion to occur in which a copy of the story may or may not change hands in the spirit of fannish friendship. However that is very different from publicly posting it - or even publicly announcing that you have a copy to share.

Sometimes authors actually explicitly state whether they are okay or not okay with that 'private' sharing rather than publicly sharing but in the even of not having that information, which you probably don't, then work on the basis the more private any transfers are the less likely you are to have a crowd of upset and metaphorically-touch wielding fans at your door wanting to see how your internal organs would suit them as lingerie :-)
cschick
Mar. 24th, 2011 03:28 pm (UTC)
Right. There is more than one fandom out there with a "lost-and-found" type of forum which at least partly participates in this type of private distribution. The XF Lost & Found message board is obviously the one that comes immediately to my mind (being both public and extremely well organized), but I've located and used such resources in fandoms outside XF as well.

Edited at 2011-03-24 03:29 pm (UTC)
fides
Mar. 24th, 2011 03:53 pm (UTC)
I suspect it happens more in older fandoms where archives have fallen over or gone offline (incidentally taking works with them) rather than the author deliberately pulling their works. The former sadly happens all to often while the later is, thankfully, comparatively rare.
cschick
Mar. 24th, 2011 03:59 pm (UTC)
Heh. Being who I am, I know that probably 75% of the stories passed around this way in XF at least, were deliberately taken down by authors.

But, back to the OP ... maybe for your fandom, the better idea would be to create some sort of forum where people can post requests for help finding fiction within the fandom, the side effect of which might be the evolution of this type of system.
fides
Mar. 24th, 2011 04:06 pm (UTC)
Ah well - it was but a passing theory. And now it has passed ;-)
morgandawn
Mar. 24th, 2011 06:58 pm (UTC)
storyfinder communities for the win!
I love this idea.....in The Professionals fandom they have an 'out of print' sharing circle (for 'out of print' print zines) where people will photocopy and mail a story (at cost). In most other fandoms, there are storyfinder communities. If there isn't one for your fandom, you could create one.

In The Professionals LJ community, fans list the zines (or in the case of the circuit stories that were circulated but never published in a zine) the authors, along with their contact info. People then communicate on a 1:1 basis.

Edited at 2011-03-24 07:36 pm (UTC)
morgandawn
Mar. 24th, 2011 06:29 pm (UTC)
etiquette thoughts
Focusing on the etiquette (as opposed to the legal issues), I think that unless the author has explicitly said they do not want their story circulated you could make it available on a 1:1 basis. This fits in with most fannish practices dating back to the 1970s where fans would privately copy and circulate out of print stories.*

Reposting the story to the net or in a journal would be more like republishing the story - or to carry the zine analogy further, reprinting the zine.

I'd look to see how storyfinder communities handle requests for deleted fic. I suspect you'll see a range. On spnstoryfinders and sgastoryfinders you'll see people sharing copies 1:1 as long as the author has not expressed their circulation preferences.

*Note: Then, as now, there have always been fans who feel that any copying or sharing of out of print zines - for any reason - is not permissible. There are also fans who say you are not allowed to loan your zines ever, so keep in mind there is a wide range of opinions, some more practical than others.

Edited at 2011-03-24 07:37 pm (UTC)
rubymiene
Mar. 26th, 2011 08:00 pm (UTC)
Ettiquette and the law
I would add that, from a legal standpoint, those who think that it's not permissible to loan or share prints zines are completely in the wrong. The right to give away or loan out a physical copy is guaranteed by statute. This is the premise all libraries are built on.
From a moral standpoint, I don't see why people shouldn't be able to share on a 1-to-1 basis. It has the same effect on the author as loaning out a book to a friend if the author had published in book form, and I don't think the author should have the moral authority to stop you. (From the legal perspective, it's murky whether emailing a copy is fair use, but the author is unlikely to protest.)
cschick
Mar. 24th, 2011 04:05 pm (UTC)
And, vickyblueeyez, I just glanced at your journal and recent public posts. You might personally be interested in looking into the Creative Commons licenses for your own fannish work. One of the aspects of the Creative Commons licenses is that they are perpetual (to the extent of copyright). Once you've released a work under a CC license, people are free to take advantage of the releases from copyright you've granted until copyright expires.

Edited at 2011-03-24 04:06 pm (UTC)
morgandawn
Mar. 24th, 2011 06:50 pm (UTC)
now on to legal issues
as someone posted above, if you believe that fan fic has copyrightable elements, then you'd follow the basic fair use analysis.

*you could, for example, write your own transformative fiction based on the story
*you could use some of the phrases in a collage or a vid
*you could post portions (possibly even large portions) in support of an article or an essay or even to support a point you are making in your blog
*you could use portions to create a wiki entry about the fan or the story

There are few exceptions that would allow you to offer the story as a whole.

*if you were a teacher, you might be able to print out the story and hand it out to students (this is a tricky and hard to navigate exception and there has been a lot of legal wrangling over it - I am only summarizing the exception in its broadest form)
*If you were a library or an archive that offers public access, you could print out a hard copy and then treat the PDF as a preservation copy and allow people to access the PDF on site.

One interesting question: in the print world, once I have a copy in hand, I am able to loan it or give it away. Even if I pick up the book or newspaper for free off a park bench. I'd be curious to see how this might apply to a hard copy of the story. For example, at most fan run cons, there is a swap table filled with printed netfic that is being offered for free. Some of the fic has long since vanished from the net and the author's wishes are unknown.
calliopeia17
Mar. 24th, 2011 07:20 pm (UTC)
This is mostly just a recap of what everyone else has said, but....

There's no legal precedent on whether fanfiction is copyrightable material or not, but assuming for the purposes of argument, it is, then what you're proposing would certainly be copyright infringement. (The same way that taking a copy of a published book and reproducing it on the internet, even with the author properly attributed, would be copyright infringement.)

Ethically, if you cannot contact the author, it would be extremely rude and potentially hurtful to distribute the fic over the internet.

(Imagine, if you will, a fiction writer whose LJ psuedonym had become known by her RL friends/family. She does not want her RL friends/family to find her fic. She might be in danger of physical abuse from a violent domestic partner who doesn't like her writing slash. She might be at risk of losing her job if her employer finds out she writes erotica. She might be shunned by her friends or family if they find about her fic. To prevent her fic from being googleable through the pen name which her RL people have become aware of, she takes down her fic. So what happens to her if you put it back up?)

This writer deleted her accounts because she did not want her fic to be accessible on the internet any more--for whatever reason. It would be deeply unethical to disrespect her wishes.

In summary, CAN you? Yes, it is highly unlikely to the point of being nearly impossible that someone would bring a successful lawsuit for this. SHOULD you? Absolutely not.
stmarc
Mar. 25th, 2011 02:45 pm (UTC)
There's no legal precedent on whether fanfiction is copyrightable material or not..

Huh what?

Of COURSE it is. Whether or not that copyright is subject to the superior rights of some other copyright holder is an entirely separate issue. The two have nothing to do with each other. If the fic has any original elements at all, those elements are copyrightable.

Don't take this the wrong way, but "fanfic" is not some new and exotic creature, a mysterious chimera of which the Congress, the courts and the counsel wot not. We got this.

And the answer to the original poster's question is: "Don't do that. Just don't do it. It's wrong on all possible levels."
rhiannon_s
Apr. 12th, 2011 06:36 pm (UTC)
I've never understood how fandom authors and readers can get so worked up about their stories getting passed around, when fans are more than ready, willing and able to go to extraordinary lengths to do the exact same thing with source materials. Keep Circulating the Tapes Fics.
(Deleted comment)
bluevsgrey
Apr. 19th, 2011 02:58 am (UTC)
I'd say it is perfectly fair game. It is on your hard drive, was intended fannish consumption, go for it.

I have seen this done a lot in previous fandoms esp. RPS ones when the fourth wall starts to dissolve or when people move onto new fandoms and want to reinvent, reinvest. Just because someone doesn't want that piece of writing or that journal to be like, "hey, this is who I am," doesn't mean it is suddenly not shareable.
(Anonymous)
Jul. 6th, 2011 04:45 pm (UTC)
very informative
really?
tsanjewaj
Jul. 9th, 2011 08:25 am (UTC)
Занятный блог
Ну вообще-то, многое из того, что Вы пишете не совсем так… Ну да ладно, не важно :)
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Dec. 1st, 2011 04:58 am (UTC)
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johnnypenn
Mar. 24th, 2012 07:26 pm (UTC)
Why don't we take this from the writers point of view?
For me, I wouldn't want someone randomly posting my fic on the net, even if I've deleted my accounts.
It's still my fic. I've still put a lot of work into it, and if I decide to take it down. I expect people to respect that decision.
That said, if someone was looking for it, you could email the to them. That's not posting to the general public, it's just passing on text thatypu a d the other person know has been written by someone else. I'd accept that. But not going around and re-publishing because the original author has deleted it and can't be found.
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