Am I Going To Be Sued?

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Title: Am I Going To Be Sued?
Creator: Megan Reilly
Date(s): October 5, 2000
Medium: online
Fandom: focus on The X-Files but applicable to many fandoms
Topic:
External Links: Am I Going To Be Sued?
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Am I Going To Be Sued? is an essay by Megan Reilly.

It was posted to the X-Files website Working Stiffs in 2000.

Some Topics Discussed

Excerpts

No. You're not [you're not going to be sued for writing/sharing fanfiction]. Not today and probably not tomorrow, either.

While there are points to be made for the illegality of fanfic, there are just as many points to made that fanfic falls under the "fair use" statute of copyright law. In essence, fair use allows derivatives of copyrighted materials so long as a profit is not made, and nothing is taken away from the value of the original work.

A second issue in the illegality of fanfic concerns the use of trademarks. Most of the character names and some catchphrases have been copyrighted (for example, "Fox Mulder" and "The Truth is Out There" are both trademarked). The holder of a trademark must defend it. If they don't, the trademark is lost and the term can become a generic. The words escalator and aspirin both used to be trademarked brand names of products, and those trademarks are lost. Words such as Xerox and Kleenex are in danger of losing their trademark status, because they are frequently used to describe any one of a number of similar products.

This is why we are now "stuck on Band-Aid *brand.*" Personally, I'm not sure how that would work with a character name – I understand the Xerox copier and the Rollerblade inline skate, but the "Fox Mulder character" ("Fox Mulder brand alien-hunting FBI agent"?) just doesn't have the same ring to it.

To date, the prosecution of fanfic writers is almost unheard of. When networks, most notably Fox, have gone after Internet Web sites run by fans, they have left the fanfic sites alone, focusing instead on sites using unauthorized multimedia, such as pictures, sound and video clips, and transcripts. However, some printed book authors (such as Mercedes Lackey) have issued similar "cease and desist" letters to those who have crafted derivative works.

The definitive article, which also happens to be fascinating reading, was written in 1997 by Rebecca Tushnet. You can read it here.

But you still have that slightly uneasy feeling in your stomach, don't you? I think that's normal. When I first started writing fanfic, I honestly jumped every time the telephone rang, expecting it to be lawyers who were going to sue me. All those disclaimers I read scared me: So many people begging not to be prosecuted.

That nervous feeling wore off, by the way. It never hurts to be careful, by using a disclaimer, for example. I'd also advise against flaunting your fic in a place where people from the show are likely to read it, and I'd probably avoid mailing it to them directly.

The other feeling of discomfort comes from the knowledge, deep down or prominent, that what you are doing may essentially no different than theft or plagiarism. I don't have any easy answers there. I do support the notion that television (or movies, for that matter) are modern myths and as such, fanfic is a natural extension and method of interaction with these stories and characters. (After all, I write the stuff myself.)

I don't know where exactly the line falls. There have been numerous instances of plagiarism within the online community – people who take a writer's story, word for word, and claim it as their own. The question always comes up, how can we demand respect of our copyrights when we ourselves are infringers? But plagiarism is different. As they say, you can't copyright a word or an idea or a title, but you can copyright the specific expression of an idea, which definitely applies to a story, whether you borrowed the characters or not.

Likewise, it's considered common courtesy to e-mail an author for permission to use an originally created character from a fanfic, or to write a sequel to a story someone else has posted. This sometimes brings grumbling, too - if the disclaimer is enough to absolve us of Chris Carter's wrath, why shouldn't it work the same for other authors' characters? I think the difference in this case is that all of us as authors are in the same community as readers and writers. Most writers will grant permission for use of an original character if you ask for it. (This has happened to me, too, by the way - I wrote a character in a fan-written "virtual season" and later saw this character in a fanfic. Fanfic from fanfic...I was flattered as hell. Anyway...)

The point is, at this moment there is no real, organized legal threat against fanfic. This position is precarious and could change, so it's best to keep an eye on intellectual property law and keep track of what's going on, not only in your chosen fandom but also in others. Blue ribbon campaigns for free speech on the net exist – it's your choice whether you want to support them. It is vital that before you dip your toes too far into the waters of fanfic, you consider your position on the infringement issue. At least give it some thought. Know where you stand. That will be your best protection.

References