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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.


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.
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