We were having a discussion last night about the specifics of copyright law on derivative works, sparked by a ridiculous flamewar discussion thread on fan-made music videos. While it’s generally known that posting fanfic and fanart is illegal, we were speculating on when exactly these creations become violations of the law. Is it when you distribute the work? When you show it to a stranger, whether they get a copy or not? When you show it to your spouse? Turns out that unless you have specific permission from the copyright holder to use the specific work involved, it’s not legal to create fanart or fic at all, whether you show it to anyone or not.
This runs up against a belief of mine that I’ve termed “the Six-Year-Old Doctrine:” if, in order to fully enforce a law, authorities would need to prosecute a fair number of unwitting six-year-olds, that law is in need of changing. With respect to copyright and derivative works, every first-grader who draws a picture of Dora the Explorer or Barney or Bugs Bunny is technically in violation of copyright law. Realistically, no one is going to issue C&D letters to a classful of fans, or sue their parents for damages. Sadly, the owners of the depicted property do have that right.
Copyright law is quite black and white, but feels incredibly gray. And no wonder, with the fineness of the dividing lines between legal and illegal. You can dismember a Barbie and copyright the photograph you take of the result, but you can’t repaint or remodel one to look like Buffy the Vampire Slayer. However, if you repaint and remodel one as above but don’t say in any tangible form specifically what you were aiming for (perhaps labeling the result as Kristy Swanson or Sarah Michelle Gellar rather than the character), it would be tough to make any suit stick. You can record an audiobook for a class project, but you have no right of ownership on the recording, even if you created really cool sound effects for it. (If you record the sound effects separately, you have a copyright on them. If you don’t, I’m not sure what your rights are.) If you’re recording the audiobook for anyone’s sheer entertainment, then unless it’s readily identifiable as parody, it’s not fair use and you’re in violation.
Fan videos are a special case in that they involve two separate domains of violation: video and audio. Unless the video involved has been specifically OK’d for use (as with the current studio-sanctioned Farscape video contest) it’s an obvious no-no. But with the music, you have to get into the DMCA. As rap music and MP3 cases have proven, CD-quality recordings and bits thereof are protected. So if you taped your song off the radio, you can probably use it with no fear. However, if you tape your song off a CD you own, distributing the result, even for free, goes beyond the scope of the right of first use and you’re in violation. This is directly related to giving all your friends copies of the CD you just bought, which is also bad no matter what the quality. I hope the Farscape folks are prepared to handle any complaints from the music studios about this contest. Actually, I hope there aren’t any, but it never hurts to plan for the worst.
Saying that any unauthorized derivative work is illegal from the first mark on paper, or sound, or keystroke is like saying that anal sex is illegal. If you don’t bandy it about that these things are being done, whether by you or by someone else, chances are nobody’s going to go door-to-door looking for evidence. The right to protection against search and seizure, coupled with the sheer amount of effort it would take to prosecute every copyright violation, is all that keeps well-meaning artists, filkers, and ficcers from being shut down. I hope copyright-holding corporations and the government never realize that creating a task force to find and stop derivative works in all their forms would create an incredible number of jobs. Oral traditions, anyone?