A Matter Of Willful Copyright Infringement

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Commentary
Title: A Matter Of Willful Copyright Infringement
Commentator: Chelsea Quinn Yarbro
Date(s): Summer 1992, Fall 1992
Medium: print
Fandom:
External Links:
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A Matter Of Willful Copyright Infringement is the first part of a two-part article by Chelsea Quinn Yarbro. The second part is titled Copyright Infringement Part II."

The first letter was written in January 1991. The second letter appears to have been written in perhaps June 1991. These letters were originally published in the "Horror Writers of America" newsletter.

They were both reprinted in SFWA Bulletin (Summer 1992, Fall 1992).

The letters' topic was the fanfic "The Adventure of the Gentleman in Black" which was printed in The Holmesian Federation #8. Yarbro's complaint is that this story used Yarbro's character "Count Saint Germain" (who in turn is Yarbro's use of the real historical man named Count of St. Germain).

In the first article, Yarbro describes how her lawyer, Robin Dubner, attended a party and was given a copy of The Holmesian Federation #8. The lawyer, "being a very canny person... asked her co-host if she could borrow the issue, since clearly the story was too long to read while at the party. She promised to return the issue at week's end. The co-host agreed, and the next morning Robin Dubner called me to warn me we had trouble."

The Background

  • Chelsea Quinn Yarbro wrote a series of fantasy books based on a real historical man named Count of St. Germain.
  • A fan wrote and asked for permission to include Yarbro's character in a cross-over fanfiction involving Sherlock Holmes. Yarbro said no.
  • The fan found a fanzine publisher willing to publish the story even though both knew that Yarbro had rejected the idea.
  • Yarbro's lawyer was shown a copy of the zine at a party, reported it to Yarbro the next day, and this kicked off the dispute.

Some Context

The very early 1990s were a tumultuous time for fans and TPTB.

  • Chelsea Quinn Yarbro was HWA's third President, and served from 1988 to 1990. When the "Horror Writers Association" was founded, it was done with the plan to do "whatever it took to insure that HOWL would be (hopefully) immediately recognized as a professional writers organization, not 'a fan club' for side-show horror buffs." [1]
  • In 1992, things had come to a head with another fannish tussle. See Marion Zimmer Bradley Fanfiction Controversy and the September 1992 letter Holes in My Yard, printed in The Darkover Newsletter. Six months later, Marion Zimmer Bradley's letter was published in Writers Digest: "Let this be a warning to other authors who might be tempted to be similarly generous with their universes, I know now why Arthur Conan Doyle refused to allow anyone to write about Sherlock Holmes. I wanted to be more accomodating, but I don't like where it has gotten me. It's enough to make anyone into a misanthrope." See Marion Zimmer Bradley's Letter to Writer's Digest.
  • P.N. Elrod, another professional writer of vampire fiction (and then-active creator of fanworks in the Quantum Leap and Blake's 7 fandoms) cautioned fans in September 1992: "Berkley Publishing has an army of lawyers with nothing better to do than indulge in pricy lawsuits against plagiarists and copyright pirates and I would make use of their skills. I fully realize that fan stories are written for fun and out of admiration for a character or the excitement of a dramatic situation. On the other hand, if someone came up and decided to "borrow" your car out of a sense of fun or admiration or excitement you'd probably be more than annoyed at them and call the cops. The same principal applies." See the whole statement at Open Letter to FYI from Author P.N. Elrod.
  • In December 1992, Mercedes Lackey published a long statement in Queen's Own. Queen's Own Newsletter. See I'm about to bring the cold, cruel, mundane world into our fun for a moment. Included is the first release form. Citing advice from her agent, Lackey withdraws support for most fanfiction based on her published works. From a discussion of her "Official Policy thingie": "Sorry to bring the cold, cruel world in here, but let me put it to you this way before any of you decide that I am being unreasonable, paranoid, or a control-freak. Would you walk into my house and take one of my pieces of jewelry? Would you help yourself to my bank account? Would you sit down to dinner with me at my invitation, engage me in pleasant conversation, then as soon as the meal arrived, take my plate away from me? That is precisely what you would be doing by deliberately messing things up for me. STEALING from me, after I have let you into my world. There is no graceful way to put it." [2]
  • In October 1992, Anne McCaffrey McCaffrey's Fanwork Policies addressed fans' "indiscriminate usage of our characters, worlds, and concepts," calling them "ACTIONABLE!"

Some Points from the First Article

  • The editor printed the story after knowing that Yarbro had told the author she could not use her character Count Ragoczy Saint-Germain.
  • Yarbro's lawyer found the zine at a party in August 1991, shortly after the published in the zine The Holmesian Federation #8.
  • The fanzine cost $6, which to Yarbro meant it was making a profit.
  • The editor of The Holmesian Federation consistently stated she didn't think she had done anything wrong, that characters could not be copyrighted, that she had not made any money beyond expenses, and that the stories were written for fun and for love.
  • The editor of the zine never got a lawyer.
  • Yarbro sent letters on August 28, 1991 to Tor Books, her editor, The Ellen Levine Literary Agency, HWA, both President and Trustees keeping them all well-informed of this emergency.
  • Yarbro then sent cease and desist letters to the story's writer and the zine's publisher demanding that the production and distribution of the zine be stopped immediately, and "a complete accounting" be provided, all "subscribers and jobbers" of the fanzine were to be alerted.
  • The original request by Yarbro: the fans must put a notice/apology in the HWA Newsletter, Locus, and run for not fewer than eight consecutive issues of Publishers Weekly. "There was also an assessment of a portion of the price of each issue to be paid to me, along with Robin Dubner's fees. They were given two weeks to respond."
  • Yarbro didn't believe all copies of The Holmesian Federation were confiscated.
    • Yarbro sent at least one snoop to a con to see if the zine was being sold there.
    • Yarbro instructed friends to try to order copies of the zine in the mail to see if they could still be purchased: "I wanted three copies, and I wanted to know if they could get them from a dealer outside of Oregon. They supplied me with three copies from a fanzine broker in San Jose, California..."
    • One snoop also checked the dealer's room at Worldcon and reported back that while the zine was not for sale there, it was "listed in one fanzine dealer's catalogue."
  • Yarbro procured two testimonials from fanzine editors stating that "reputable fanzines do not do this," and several of Yarbro's colleagues wrote letters "to affirm the important of protecting copyright."
  • At some point, Yarbro and the fans negotiated that no money would be paid to Yarbro for fees or damages, but that the fans would have to pay for the apology ads in the magazines.

Some Excerpts from the First Article

This is a horror story, a for-real horror story, and it could happen to any one of us; some of it is hard to write about because, frankly, I am very angry. Like all good horror stories it has its roots in the past. For me it began a couple of years ago when a fan writer wrote and asked permission to write about my character Ragoczy Saint-Germain. This, in itself, was not unusual, for I have been receiving such requests regularly since the Count made his first appearance in 1978. To this fan, as to everyone who has asked. I gave the same answer: no.
For those who think that this is a tempest in a teapot, remember: copyright is the only things standing between every writer and penury. The legal concept of intellectual and creative property is the source of protection of our livelihood, just as patents protect the inventor. Infringement is a constant risk to all of us, and one that deserves diligent attention. At the same time, there is no possible way for any writer to conduct a complete and thorough screening of the fan and semi-professional press. We have to rely on our friends and colleagues and informed book-dealers to protect us and uphold our claims.[3]
[Ms. D.] got hold of my (unlisted) phone number and called me to see if we could work something out. I told her she had to talk to my attorney; She still maintained that she had not published the fanzine to make money. I told her it didn't matter whether or not she made money and added we could not discuss it in this fashion. I was so outraged by her temerity that I stammered for the rest of the day. As it turns out, she wrote another letter to Robin Dubner rather than call her. In that letter she outlined what she was prepared to do, which was much too little and therefore completely unacceptable.
While I do not recommend using the courts egregiously -- my late attorney Fred Gottfried used to have a sign in his office: "If you want justice, go to a whorehouse, if you want to get screwed, go to court" -- they are there when all other avenues of negotiation have failed, which in this case they may have. As long as [S D] and [T R] are willing to negotiate an acceptable settlement in good faith I am willing to be as flexible as the law permits. As it is, we are bending over backwards to settle this. But once we are forced to file, Robin Dubner and I are agreed that maximum damage in every particular must be sought. This suit is costing me money, more than I can comfortable afford. It is taking large amounts of time away from my work.... But if I do not act I lose the Count, and that would be a financial and psychological disaster likely to destroy my career and my ability to earn a living. This can strap me or begger me. If those are my only choices, I'd rather it strapped me.

Some Points from the Second Article

  • Yarbro says the case is almost over but she still has complaints.
  • She states the two fans have "little or no money or property" so Yarbro has paid all of her own lawyer's fees, and has "requested no part of the $6.00 cover price of the publication."
  • Yarbro confirms the apology notices were run in the February 24th, March 2, March 9, and March 16 (all 1992) issues of Publishers Weekly in the "Weekly Exchange" section—these notices read:
A copy of one of the notices printed in "Publishers Weekly" -- In 1992, each one of these notices published in the "Weekly Exchange" section of "Publishers Weekly" cost $268.00 The total for the four notices that were run was $1072.00 plus tax. In 2016 value, that cost would be about $1844.00.
NOTICE TO ALL READERS OF THE HOLMESIAN FEDERATION #8. The appearance of the story "The Adventure of the Gentleman in Black" in the fanzine above infringed upon the copyright of Chelsea Quinn Yarbro. In writing and publishing this story, both the publisher, [S D], and the author [T R] acted contrary to Ms. Yarbro's refusal of consent to use her copyrighted fictional character, the Count Ragoczy St. Germain and knowingly infringed Ms. Yarbro's copyright. They acknowledge that copyright infringement is contrary to civil and criminal laws and apologize to Ms. Yarbro for acting against her stated wishes and endangering her copyright, her livelihood, and her literary reputation. /s/ [S D] & [T R]
  • Yarbro states that the fans haven't sent enough letters of apologies out to people.
  • Yarbro states that some copies of The Holmesian Federation #8 are still floating about: "We have also discovered that two fanzine distributors still have copies available. This is a serious breach of the agreement," one which Yarbro's lawyer was hot on the trail of pursuit. If these stray copies are not relinquished and the other letters of apology are not sent, then Yarbro is still considering fining the fans $250,000 and threatening them with five years in prison.
  • Yarbro states that one of the fans is more stubborn than the other one, and that neither has gotten a lawyer; both fans are amateurs in legal matters, she says, and this makes Yarbro's job more difficult.
  • Yarbro says that by the time this is all over it will have taken up a year of her time, time when she could been spent writing, and that the whole thing has been "aggravating and intrusive."[4]
  • Yarbro is also unhappy that "my publisher and the Copyright Office have been unable to locate two certificates of copyright registration, and it is going to cost me more money to have another search made for them at the Copyright Office if the publisher cannot locate them, which leads me to thing that perhaps a copy of that certificate should be furnished by the publisher to every writer upon the publisher's receipt of it at the time the copyright is registered."[5]

Some Excerpts from the Second Article

[The notices in Publishers Weekly are] so far, so good. [The fans] then sent a rather slipshod record of how many copies had been printed and the sales figures, as much as they were known to [S D]. Not long thereafter two large and one small box of unsold copies of the fanzine arrived at Robin Dubner's office. She has turned these over to me to be destroyed.

Since I have an absolute horror of burning books, I have decided to find some way other than that to destroy them. I have commissioned a larger-than-life-sized papier-mâché bust of the Count to be made with those copies of The Holmesian Federation #8. It suits my sense of irony, if nothing else, and Robin Dubner informs me that it fulfills the necessity of rendering the story unreadable.
[These apology letters that the fanzine publishers must pay for to be published] have to be textually approved, signed, and returned to Robin Dubner for mailing. Then, and only, then, Robin Dubner will provide them with a document from her office and signed by me saying they have fulfilled the terms of the agreement and are released from further civil action in regard to the willful infringement of my copyright in this issue of the publication. However, beyond civil statutes, federal law provides a maximum fine of $250,000.00 and a maximum prison term of five years for willful copyright infringement, and I have no authority to release them from possible federal criminal action against them.
"... dealing with the two women has been long and difficult, far more so than such a case would be against a more professional publisher familiar with copyright law. That they continue to protest that this was done as an act of homage or admiration is clearly negated by the contempt they have shown for my wishes in regard to my characters, from my original refusal of permission to their indignation that I should actually expect them to apologize and make some form of amends for what they have done.
Legal cases gobble time.... I am more distressed about the lost time than any other aspect of this whole bloody case, and one of the reasons I have been willing to settle the case in this manner I have is that I do not want to lose any more writing time than I already have. To prolong the process seems futile, as it would lead only to higher attorney's fees which the infringers cannot pay, and a greater loss of time, which would be a more Pyrrhic victory than what I have already achieved.
Recently I have been contacted by various pros and fans who have comments to make. To those of you who have been helpful and supportive, my thanks and appreciation for your concern. Even those of you who have not necessarily agreed with how this case has been handled but have understood the necessity of some sort of legal action to vindicate my claim to copyright, I am grateful for your recommendations, and suggestions. Truly, it means a great deal to me, not only for this incident, but for the question of the preservation of copyright in general. To the others, those who felt I was picking on these two poor fans, or those who thought I ought to spend [6] a great deal of money making a legal example of two women by stomping them to fudge, tell you what: when you're in my shoes, you do whatever you think is best, just as I am doing right now.

Fan Comments

1992

[Roberta Rogow]:
While a movie company may not bother with a mere fanzine, an author has both the time and the will to pursue those who would misuse his or her characters through the law-courts and in and out of the pages of professional publications until everyone is sick of the subject. One particular writer has already done so! I must therefore warn prospective writers for GRIP, or any other Mediazine: if you are going to use a character from a book or series of books (as opposed to one seen only on the screen, be it large or small), get permission from the original author first...and in writing! Otherwise, you may be faced with the prospect of writing humiliating letters to Publisher’s Weekly, Library Journal, and all of the SF Prozines, abasing yourself and demanding forgiveness from the outraged creator of the original character. (And, I may add, paying full advertising rates for the privilege!) [7]

2001

[Dorothy J. Heydt]:

The publisher of a fanzine, a fairly good-quality one, wrote to Quinn asking permission to print a fan-written story about her vampire character. Quinn, as she always does in such cases, wrote back, "No, I do not give permission; that character is mine and you can't mess with him; make up your own vampires as I did."

Some time later Quinn's agent was at a party and came across a copy of the fanzine, with the story in it, prefaced by an editorial comment to the effect of "We asked Chelsea Quinn Yarbro if we could publish this, and she said No, but it's so good that we're going to publish it anyway and hope she will forgive us."

Thinking quickly, the agent asked her host if she could borrow the fanzine "so I can read it in peace and quiet when the party's over." She brought it to Quinn next day and they held a council of war.

-digression explaining what it was all about-

The problem, basically, is not only that Quinn feels (and so do I and so do many others) that her character properly and morally belongs to her, and should be free from being mucked about with by others; but that her character *legally* belongs to her and should not be infringed upon by others without suffering the penalties of the law.

An additional perspective: at the time all this happened, a movie studio was negotiating with Quinn and her agent about the possibility of a movie or series of movies about her vampire; they would have had to pay her for the rights to do this, even if they wrote a whole 'nother plot for him to appear in. If her character went into the public domain, they would have had to pay her nothing; and if Quinn let this fan story go its way (particularly after the comment ~"she said no but we're going to do it anyway"~) without taking legal action, she was in effect releasing the character into the public domain.

Whether a character can in fact be intellectual property, whether it can be copyrighted, is still being argued out in the courts here and there, but one thing is certain: if you want to maintain a legal claim to something, you must defend it whenever you learn that it has been infringed. This is why lawyers connected to companies write you nasty letters if you use a trademarked name generically in print. They are not going to sue you really, but they are going to object as vigorously as they can, to protect their client's trademark.

-end digression-

So Quinn's lawyer wrote to the fanzine publisher and writer and said, "You have infringed on Ms. Yarbro's copyrights; you must make amends by putting a formal apology in _Publisher's Weekly_, pulling and destroying all copies of the offending publication, and paying monetary damages."

And the fans replied, "What? You've got to be kidding! Why, it's a COMPLIMENT to an author if fans write fanstories about her stuff."

This discussion continued for a long time.

Quinn's lawyer eventually managed to drum it into the fans' thick heads that they were in the wrong, and they did publish the apology and pulled all the copies they could find of the offending issue. There were no monetary damages because they had no money.

Quinn is still steaming about it, years later.[8]
[Sea Wasp]:

On a MORAL level, I agree with you. I invented Jason Wood. I wrote his stories, designed the world in which he and his friends, enemies, allies, acquaintances, and so on exist, and decided how and why every one of those things fits together. Now, if someone completely unbeknownst to me writes up a fanfic in that universe and spreads it around, I would, as a general rule, consider that a compliment if I ever learned of it. Even if the fanfic sucked -- having written bad fanfic of my own, one must be tolerant of that in others.

HOWEVER, if someone went to me for permission and was DENIED it -- for whatever reason -- I would consider it EXTREMELY offensive for them to go ahead and publish, and would try to find some legal way to give them a slapping around for that. Not because I am against the concept of fanfiction, or even insensitive to the compliment of someone liking my creations so much that they wanted to play in that universe, but because what they are doing is *RUDE*. If you aren't willing to take the chance that the answer will be "no", then for god's sake DON'T ASK.[9]
[Wiley20658]:

Awhile back someone asked me to ask Quinn Yarbro about copyright infringement and the like, and Quinn later said I can use the quote if the issue came up again. Here was a reply she wrote in January 2000:

"Discussing any character under copyright (and characters *never* go out of copyright; so long as their is any legitimate claimant to a writer's estate, the characters are not available for use without permission) is fine. Reviewing is fine so long as the reviews do not contain excerpts of more than 1,500 words. What is not fine, and is in fact a serious federal crime is reprinting work in which that character appears, adapting the character in other stories, or doing work in which there are six points or more of similarity to the original work or character. Fan fiction, no matter how well-intention, infringes copyright and writers are required under law to stop it when they discover it, or risk losing their copyright -- and livelihood. The test of infringement, incidentally, is not whether or not money changes hands, but if the work is distributed." --Chelsea Quinn

Yarbro [10]
[lal truckee]:

So now she's a lawyer, too? This sounds like any of thousands of other authoritative usenet babbling. It also sounds like the someone I'm not likely to enjoy reading.

By any chance is her vampire character in question a blood-sucking lawyer? Is there ANY vampire character who is a "blood-sucking lawyer" out there in the lit? If not I claim copyright on the character of the "blood-sucking lawyer." Contact my agent for permission to use.

BTW is she paying Bram Stoker's estate for permission to use his character of a vampire? (Assuming the answer which I know to be true.) WHY NOT? She does claim "characters 'never' go out of copyright" [11]
[Terry Austin]:

Fan fiction that isn't published for commercial purposes is quite clearly not criminal infringement.

>"Fan fiction, no matter how well-intention, infringes copyright and writers are required under law to stop it when they discover it, or risk losing their copyright -- and livelihood.

This is also flatly incorrect. This is true of trademarks, but manifestly not true of copyrights. There are issues with not pursuing infringements, but losing copyright is not among them.

>The test of infringement, incidentally, is not whether or not money changes hands, but if the work is distributed." --Chelsea Quinn Yarbro

Assuming she's a writer, it's disappointing she know so

little about the law that protects her work.[12]
[Sea Wasp]:

> Marion Zimmer Bradley and Michael J. Straczynski would both disagree, from personal experience.

I dunno what JMS' (yes, it's J. Michael) problem was -- haven't heard that story -- but MZB had a more complicated problem than mere fanfic, involving sanctioned publications for money with MZB's personal interaction.

The fact that the fan in question was apparently a knave as well didn't help, but if it had been JUST fanfic, and not something MZB involved herself in, there would likely have been no problem. Much of the difficulty comes in the fact that since MZB had contact with the fan in question during the writing in question, it becomes legally difficult to assert that the fan's writing had no influence on MZB. If, on the other hand, all that MZB ever heard was "These people are writing fanfics in Darkover", that'd be a different matter entirely.

I agree that the outcome of that whole mess was idiotic, but fanfic by itself shouldn't be considered THAT kind of danger.[13]
[Jeanne A. E. DeVoto]:
Even if copyright *were* a sue-for-it-or-lose-it proposition, however, I'd have a problem with any author who demands books be burned in order to suppress an original work of fiction by someone else... bookburning disgusts me so much at so visceral a level that I don't even care whether the bookburner could be said to be morally in the right. Destroying all trace of someone else's work, instead of finding some other way of dealing with the offense and addressing one's concerns, is an abominable act.[14]
[Matt Ruff]:
Well, the whole idea in copyright-infringement cases is that it's *not* an original work.... I pretty sure SOP in piracy cases is to seize and destroy as many copies of the pirate edition as the cops can readily get their hands on -- obviously they're not going to go into people's houses to seize individual copies that may already have been sold, but the unsold copies in the warehouse are toast.... I agree with you that fanfic is, at worst, harmless, and at best very flattering, and I think in 99% of cases trying to suppress it by asserting copyright would mark you as a heavy-handed prick. Nevertheless, for copyright to mean anything you have to have the power to defend it -- whether or not you choose to use that power is another matter. ...[regarding the zine's proposed destruction] In Yarbro's case, what alternative would you have suggested? [15]
[Jeanne A. E. DeVoto]:

Well, in general for derivative works I see a couple of legitimate interests of the author. One is the monetary right mentioned above, to share fairly in any money generated by sale of the derivative work. Another is the protection of the author's and the work's reputation. A third (maybe) is the author's priority in continuing to create related works, without having that niche snatched out from under him or her by a derivative work by someone else.

The monetary-interest part, I have the impression was not at issue in Yarbro's case. (In cases where it is, possibly a statutory percentage of the profits would work.)

The reputation part might be best handled by letting the author decide whether and how he or she is to be credited in the derived work. There are a number of possibilities: the author might be pleased by the derivative work and want to include a little "ad" for the original; might not like the derivative work and want to make clear that it's not related to the original or "authorized" in any way; might be horrified by the derivative work and not want his or her name used anywhere near it; or might not care. Giving the author control over the credits would help make the relationship between the works clear to the author's satisfaction.

I'm not sure how to handle the third part, the author's priority of related works.

But I've just read a letter someone else posted from Yarbro, in which she repeats the chestnut about risking loss of copyright if you don't suppress infringing works, along with several other popular misapprehensions about copyright. If she believes this, and if this was her only or main reason for seeking to suppress this fanfic we're discussing, it's possible that simply explaining the law, perhaps suggesting her licensing the use for a nominal fee, would have resolved the matter to her satisfaction.

Or maybe not, not being sure exactly what her objection(s) were...[16]
[Terry Austin]:
There's control, and control. It isn't necessarily in the existence of fanfic that the hazard lies, so much as in a publicly known exposure to it on the part of the original creator. Anything published _in a fan magazine_ is a higher level of risk than something not published at all. This, too, in not theoretical, as this discussion has demonstrated. I would agree that suing fans for writing it is, in general, not a bright idea. But fanfic is manifestly _not_ "harmless at worst." [17]
[Wiley20658]:

People are capable of mistakes, it's part of being human. But in this instance I do not think Yarbro is the one with the incorrect information, on any of the points she brought up in her comment that I posted.

When I told Yarbro of this thread, she commented on five things, which I paraphrase here

1) If someone wants to write any sort of fan fiction (and distribute the fan fiction in *any* form, regardless if profit is intended), talk with a lawyer who specializes in intellectual property and get permission from the original author. It'll save trouble for all parties later.

2) Copyright infringement is *not* a light matter. Believing that fan fiction does not infringe on an author's copyright is wishful thinking.

3) Believing that copyright infringement is not punishable by law is wishful thinking.

4) Look at the Napster case and study the courts' rulings

5) A professional writer should hope that he or she will never have to deal with copyright infringement. The full effect can not be felt unless one goes through such an ordeal.

Of course there's going to be people who disagree with Yarbro's comments and my post, and that's fine. We'll just have to agree to disagree, and hope no one here has to deal with the matter as many times as Yarbro has had to. :-( [18]
[J.B. Moreno]:

...one of the things that fanfic can do is poison the market, in one of two ways -- if it's spectacularly good it can take the place for the demand of that type of story, thereby depriving the author of income, if it's spectacularly bad it can become more associated with the characters than the "original" version and thereby turn people off from the works of the author.

If you want to write fanfic, fine, just make sure it doesn't escape into the wild...[19]
[Terry Austin]:
Giving a copy [of your fanfic] to a couple of friends will likely escape the notice of even the most diligent author. But writing fanfic, in general, is something to be careful about.[20]
[Pete McCutchen]:
I would have advised Quinn to go after the guy,[21] but this happens to be partly false. _Trademarks_ can be lost if you don't enforce them; copyrights and patents cannot. She could have said, "fuck it, it's not worth the trouble," and she would still have owned the copyright in the work.[22]
[Matt Ruff]:

< [Chelsea Quinn Yarbro's words]: 1) If someone wants to write any sort of fan fiction (and distribute the fan fiction in *any* form, regardless if profit is intended), talk with a lawyer who specializes in intellectual property and get permission from the original author. It'll save trouble for all parties later.

Actually, it sounds like a lot of needless trouble up front. Maybe my impression is totally wrong, but I have this idea that most fanfic is done as a small-scale hobby; consulting a lawyer--let alone contacting the author--seems like it'd be overkill in a lot of cases, kind of like calling in OSHA to make sure your quilting bee doesn't violate any workplace safety rules. Unless you're planning to make a serious for-profit business out of it, I'd say forget the lawyer and just do it; and if the author in question really threatens to sue you because you wrote a short story based on his or her work, mimeographed 50 copies, and sold them for a buck apiece (to cover costs) at Podunk-con, apologize profusely and next time pick a different author.[23]
[Laura Burchard]:

*sigh* Terry, if you are going to keep bringing up that case, you should get it straight; even MZB's version of the story doesn't claim it was a fanfic. It was a submission to the Darkover anthology series.

One of the people connected with the other side popped up up a couple years ago in rasfw, apparently tired of hearing this version taken as received wisdom, and gave their side: that the woman had submitted a manuscript to the Darkover collection series, that MZB (I'm using that in a collective sense to represent her side, not necessarily that Marion Zimmer Bradley did each thing) wanted to use an idea from it, that the writer was pleased and proud and was happy to let her do this, but then discovered that what MZB meant by 'using an idea' was the writer giving MZB rights to use everything *including the text* without credit or compensation (remember, this was a professional submission to an anthology series, *not* a fanfic.) And that it was MZB who brought out lawyers first.

I recall them as being fairly convincing; unfortunately, Deja no longer goes back that far. In particular, given that this was post stroke and that it's become clear in the years since that she wrote little to none of the Darkover work appearing under her name and in fact was probably not capable of doing so, the claim that this writer forced the abandonment of a about-to-be-published book of hers seems... questionable.[24]
[Jean Lamb]:

The infamous Marion Zimmer Bradley case: Hello, it was me. Here's what happened. It _was_ fanfic, but published under MZB's more or less aegis as a permitted issue of MOON PHASES (Nina Boal, editor). It was a book entitled MASKS set entirely within Darkover.

I received a letter offering me a sum and a dedication for all rights to the text. I attempted at that point to _very politely_ negotiate a better deal. I was told that I had better take what I was offered, that much better authors than I had not been paid as much (we're talking a few hundred dollars here) and had gotten the same sort of 'credit' (this was in the summer of 1992).

At that point I did not threaten any sort of suit whatsoever; in fact, a few months later I received a letter from Ms. Bradley's lawyer threatening me with a suit should I be a bit too frank about Ms. Bradley's um, writing methods, and who her current collaborators were at the time (at least that is how I took the lawyer's phrasing). Needless to say, I could not afford to defend myself if sued. Winning with the truth could have bankrupted me (and probably still could).

I can't use the book. A later submission to DAW of original work was returned in _incredibly_ short time with a preprinted slip. (this may have had more to do with the quality of the work than the byline, I hasten to add, though I've never seen them work quite that fast before).

It's been a long strange trip. But it DID cure me of fanfic.[25]
[Sea Wasp]:
Well, unless there've been TWO such cases, I think you can't get a CLOSER source of info than this...[26]

[Terry Austin]:

I would agree, and obviously no one else had the complete, correct story.[27]
[Lloyd Heilbrunn]:
Sounds like MZB hired THE WORLD WRECKERS to handle her business dealings....:) [28]

2007

[darkrosetiger]:
There hasn't, to the best of my knowledge, been a definitive ruling on fanfic as a genre. However, there has been at least one case where an author brought suit against a fanzine publisher and writer for writing fic based on her work, and won. Chelsea Quinn Yarbro sued after someone wrote a fic based on her Saint Germain series. AFAIK, this case did have a slightly unusual aspect, because the writer contacted Yarbro and asked for permission, which was refused. Since most fic writers effectively operate on the "don't ask/don't tell" principle, this case may not be precedent for anything. On the other hand, I really wouldn't want to try making the case for the legality of R- or NC-17 HP fic, where the author's agent has made their position pretty clear.[29]
[harriet spy]:
I do not believe that this fan-writer was actually found to have infringed CQY's copyright. It's really important to keep distinct settlements between private parties--which often reflect the balance of power between the parties much more than the legal merits of the case--and actual court rulings.[30]
[thecert]:
Without giving the impression that I subscribe to the views expressed in CQY's HWA newsletter pieces, I'd like to say: CQY was apparently genuinely concerned that she could effectively lose the rights to her character Saint-Germain if she failed to pursue any unauthorized uses of the character as instances of copyright infringement. She opened the first article by calling it "a horror story, a for-real horror story," and she indicated that she felt this instance could force her to choose between being strapped by pursuing a lawsuit in federal court or being beggared by losing rights to her character. More to the point, she had a for-real lawyer backing her up: drafting apologies for the fan author and fan publisher, citing case law. The interpretations of copyright law referenced in the articles didn't, I'm sure, come out of thin air, nor are they exclusive to CQY and her lawyer. Yarbro is not the only author who is convinced that she can lose rights - effectively or in fact - to her creative property by ignoring uses such as fanfic. I say "effectively" because there's a belief among book authors that publishers may refuse to buy books written about a "compromised" character: i.e., one that the author permits fanfic about. How this belief is promulgated and how widespread it may be - I don't know. But Yarbro's worry about losing her character to a fanfic probably reflects this fear. I've also read of authors who say of fanfic: "I won't prosecute you - my publisher will." P. N. Elrod expressed this sentiment in an issue of her newsletter for fans. I've been unable to find that number, but here's an excerpt from the P. N. Elrod Fan Club newsletter #13, January 1997: In response to a question about fanfic for one of the characters in the Keeper of the King novels co-authored by Elrod and Nigel Bennett, the newsletter said (in addition to deeming such works copyright infringement and illegal), "Some writers have contracts that require them to prosecute.[31]
[darkrosetiger]:
Yarbro's interpretation of copyright law is...interesting.[32]

2010

[djonn]:
My own sense is that the Yarbro case is also not a definitive argument against fanfic. What got the fanwriter and editor into trouble in that one was that they personally and directly drew Yarbro's attention to what they were doing...and went ahead after she explicitly denied permission to publish. In a sense, this was the flip side of MZB's arguable error in judgment; where MZB attempted to get too involved with fanwriting, the Yarbro fanwriters attempted to get too involved with Yarbro.[33]

References

  1. A Shockingly Brief and Informal History of the Horror Writers Association by Stanley Wiater, accessed October 31, 2016
  2. I'm about to bring the cold, cruel, mundane world into our fun for a moment
  3. Copyrights are not lost if they are not defended (only trademarks and patents), so her worries may have been overblown. And, when one considers the long line of studios, artists and literary writers who had tolerated (and continue to tolerate) fan fiction without reducing them to penury, her phrasing comes across as somewhat pompous and unnecessarily alarmist.
  4. Many authors would have turned the issue over to their lawyers and allowed them to handle it. Yarbro took a different path: she remained emotionally engaged, recruited others to scout for her at conventions, asked them to try to buy copies through the mail, and wrote two very long and detailed articles. In the end, much of that energy could have been applied to her writing so it seems disingenuous for her to lay the blame solely at the feet of the fanzine publishers.
  5. A certificate of copyright registration allows the owner to pursue greater damages during litigation. Her focus on the certificates of registration is puzzling as it had little to do with the fanzine's publication.
  6. She probably meant "I ought not to have spent."
  7. by Roberta Rogow in the editorial to Grip #43
  8. comment by Dorothy J. Heydt at Copyright and Filk Songs, archive link page one, archive link page two, archive link page three, archive link page four, March 2001 discussion at rec.arts.sf.written
  9. comment by Sea Wasp at Copyright and Filk Songs, archive link page one, archive link page two, archive link page three, archive link page four, March 2001 discussion at rec.arts.sf.written
  10. comment by Wiley20658 at Copyright and Filk Songs, archive link page one, archive link page two, archive link page three, archive link page four, March 2001 discussion at rec.arts.sf.written
  11. comment by lal truckee at Copyright and Filk Songs, archive link page one, archive link page two, archive link page three, archive link page four, March 2001 discussion at rec.arts.sf.written
  12. comment by Terry Austin at Copyright and Filk Songs, archive link page one, archive link page two, archive link page three, archive link page four, March 2001 discussion at rec.arts.sf.written
  13. comment by Sea Wasp at Copyright and Filk Songs, archive link page one, archive link page two, archive link page three, archive link page four, March 2001 discussion at rec.arts.sf.written
  14. comment by Jeanne A. E. DeVoto at Copyright and Filk Songs, archive link page one, archive link page two, archive link page three, archive link page four, March 2001 discussion at rec.arts.sf.written
  15. comment by Matt Ruff at Copyright and Filk Songs, archive link page one, archive link page two, archive link page three, archive link page four, March 2001 discussion at rec.arts.sf.written
  16. comment by Jeanne A. E. DeVoto at Copyright and Filk Songs, archive link page one, archive link page two, archive link page three, archive link page four, March 2001 discussion at rec.arts.sf.written
  17. comment by Terry Austin at Copyright and Filk Songs, archive link page one, archive link page two, archive link page three, archive link page four, March 2001 discussion at rec.arts.sf.written
  18. comment by Wiley20658 at Copyright and Filk Songs, archive link page one, archive link page two, archive link page three, archive link page four, March 2001 discussion at rec.arts.sf.written
  19. comment by J.B. Moreno at Copyright and Filk Songs, archive link page one, archive link page two, archive link page three, archive link page four, March 2001 discussion at rec.arts.sf.written
  20. comment by Terry Austin at Copyright and Filk Songs, archive link page one, archive link page two, archive link page three, archive link page four, March 2001 discussion at rec.arts.sf.written
  21. The fans were two women.
  22. comment by Pete McCutchen at Copyright and Filk Songs, archive link page one, archive link page two, archive link page three, archive link page four, March 2001 discussion at rec.arts.sf.written
  23. comment by Matt Ruff at Copyright and Filk Songs, archive link page one, archive link page two, archive link page three, archive link page four, March 2001 discussion at rec.arts.sf.written
  24. comment by Laura Burchard at Copyright and Filk Songs, archive link page one, archive link page two, archive link page three, archive link page four, March 2001 discussion at rec.arts.sf.written
  25. comment by Jean Lamb at Copyright and Filk Songs, archive link page one, archive link page two, archive link page three, archive link page four, March 2001 discussion at rec.arts.sf.written
  26. comment by Sea Wasp at Copyright and Filk Songs, archive link page one, archive link page two, archive link page three, archive link page four, March 2001 discussion at rec.arts.sf.written
  27. comment by Terry Austin at Copyright and Filk Songs, archive link page one, archive link page two, archive link page three, archive link page four, March 2001 discussion at rec.arts.sf.written
  28. comment by Lloyd Heilbrunn at Copyright and Filk Songs, archive link page one, archive link page two, archive link page three, archive link page four, March 2001 discussion at rec.arts.sf.written
  29. from Dear Fandom: Could You Please Stop Saying That?
  30. from Dear Fandom: Could You Please Stop Saying That?
  31. from Dear Fandom: Could You Please Stop Saying That?
  32. from Dear Fandom: Could You Please Stop Saying That?
  33. Jim C. Hines, comment by djonn, May 26, 2010