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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.


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)
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)
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)
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)
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)
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.
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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