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Etsy sellers are turning free fanfiction into printed and bound physical books [against the wishes of the authors], and listing them for sale for more than $100 per book
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- Title
- Bound Up in Fanfic Controversy
- Published
- Feb 28 2024
- Word count
- 1398 words
Fanfic makes uses of someone else's intellectual property. Usually setting and characters, but also (sometimes) they will directly rewrite, or add content to, an existing story.
This is an excellent summary, with references, to a broad introduction of the legal issues at play.
Fanfic is not fair use. It's a violation of copyright. Yes, even if they don't sell it. Yes, even if they make it available for free. Yes, even if they put "written out of love, because I adore (original author's) creations forever and all time, many hugs and kisses PLEASE DON'T SUE" on the fanfic.
It's a grey area because due to costs (lawyers expen$$$ive), most authors greatly prefer not to need to sue, and thus they don't bog themselves down into constantly monitoring and issuing takedown notices to dissuade fanfic writers.
Which has bitten some of them in the ass. Authors have been sued by fanfic authors, often around the "idea" line of attack; where a fanfic author will claim the original author "stole" an idea from the fanfic author after the fanfic wrote the idea into a fanfic first.
Parody is not parody, officially, until judge agrees it is. The same goes for fair use; it's never fair use until a judge rules it so. And infringement; a judge has to rule for it to officially be actionable infringement.
To get to that point, a whole court case has to happen. Complete with lawyers and discovery and lots of time for the court to grind slowly through everyone's billable hours the entire way. The same goes for "transformation."
Most authors agree to a truce of ignorance with fanfic. They decide to leave the fanfic writers alone, generally expecting the fanfic to not be sold or otherwise monetized. Which, it should be pointed out, has no bearing on making it "okay" or "legal" or anything else; it's still infringement even if the fanfic is free. But, if legal action does become necessary at some later point, it can be helpful to the author's case if they weren't permitting unauthorized monetization of their IP by others.
A lot of authors will consistently state, in public, at conventions, in letters, everywhere, they never read fanfic. Especially not fanfic of their works. Why? See the point above where fanfic authors decided to sue. Which costs the author money, and time, to deal with. And there's no guarantee the author can successfully defend a suit. Some authors have even lost books, had to shelve manuscripts because some fanfic writer "got to an idea first" and could have forced a court case that could be expensive to sort out.
Very little fanfic, were it to go to trial, has a realistic chance of successfully arguing it's transformative enough to quality as commentary or parody. Most fanfic literally does something like "here are the (Original Author's) characters, they go on an adventure in the (OA's) world, the end." A lot of fanfics will also add in sex, because sex. So it's OA's characters having sex, sometimes with each other, sometimes with fanfic writer inserted characters.
That's not fair use or parody.
But it takes time and energy to scrape all that stuff off the net. Especially if you're a big, well known author. If your books are known worldwide, then there's a whole world's worth of amateur would-be writers who will sit down and say "I love (original IP), I have an idea, I'll write it there using all that IP to save myself the effort of developing my own IP."
So Harry Potter fucks Draco Malfoy in a shockingly graphic X rated tale even Vivid Entertainment would never film, Gandalf teleports into a D&D campaign to guide an author insert party of 'amazing' heroes on a quest, and so on. Cute and mostly harmless ... until some asshat gets their underwear in a bunch and decides to put a lawyer on retainer and initiate a lawsuit. Then everyone needs a lawyer, and now only the lawyers are winning.
The Etsy asshats in this case are stealing from thieves, basically. It has no bearing that the fanfic writers might not intend harm, or aren't trying to profit, or anything else like that. They are infringing. They're upset that someone else is infringing them. They're further discombobulated because the Etsy thieves are directly monetizing something that's been stolen twice over.
You've never seen people angry about "copyright infringement" until you've seen someone who's already infringing on someone else's copyright get pissed about a third party stealing what they already stole. Which is what's happening here.
Fanfic authors are known to go at each other over "theft" all the time. People think "ideas" are copyrightable (hint: they're not) and will accuse other amateurs of theft at the drop of a hat. Happens in fanfic, happens on Youtube, happens with all these "creators" who are usually low effort and unversed in the laws they're trying to weaponize to their need.
Make no mistake, the Etsy grifters are thieves, and deserve a lot of retribution. But to get most of what they deserve, someone has to hire a lawyer and go after them. Presumably, since money is involved, Etsy itself knows where the money's going. Someone owns that account, so either that person (in each instance) is the thief, or knows who is and could be compelled to provide that information. But to get to that point, lawyers.
The "easiest", meaning cheapest, option is for the fanfic writers to issue takedowns, which Etsy is compelled by US law to honor. But at that point we're into a cat-and-mouse game; how determined are the Etsy thieves to keep doing this? Will they make more accounts? Will they put the same stolen stuff up under newly named listings to disguise it (or anything similar)? Will they get a new person to host a seller's account or offer up a bank to receive payments and keep going? Are they in the US, or are they abroad and harder for a US court to reach?
The original IP authors could even get involved. Rowling, for example, still owns Harry Potter and the entire Harry Potter universe. She has legal standing to issue her own takedown notices to these Etsy thieves. She probably even has enough money to pay a law firm to pursue the whole matter.
But any author, be it Rowling, Brandon Sanderson, anyone, is highly likely to be pissed they have to spend their money on lawyers to sort this kind of shit out. After all, it's a textbook case of thieves costing the victim revenue. I think most people would agree, that if someone stole from you ,and then a third person stole from the second person, and you had to get involved to "defend" the original thief ... you'd be pissed just on the general principle of needing to help out that original thief. Aside from how you still want the third person to cut it out.
Basically, the whole thing is a huge mess. The easiest way to nip it in the bud would be for Etsy, Amazon, Facebook, anywhere someone can open a seller account and start selling, to enforce IP laws. Easiest again meaning cheapest. It's not a huge deal, probably just one employee's time for less than an hour, to note that a certain account keeps getting takedown notices, and thus is probably a habitual infringer, and should just be banned.
The trick comes into how widespread this is. If it's just a few dozen thieves, okay that's not a major issue.
Just like the authors, the companies don't want to be spending money dealing with this shit. There's all sorts of liability it opens them up to, and it costs them money to resolve. But at some point, if the problem's big enough, they're the ones allowing stolen (infringing) material to move through their portal. Sooner or later, at some point, they do bear some level of responsibility. The whole matter goes away for everyone if they can just police their platforms.
After all, the amount of money someone can make by stealing a story, printing and binding it, and then selling it in-person at a flea market or convention, is more limited than if they can just click-click post it on a Internet Marketplace and wait for an order to come in. That's why the thieves are doing it that way; because it's an easy, low effort kind of theft/grift. If the companies make it harder, add friction, then the thieves will move on to the next scam.
This core thesis is directly contradicted by the "excellent summary" linked, which argues that "it all depends". Every single case mentioned in that summary was about a commercialized derivative work.
Read the statutory text on fair use. It also refutes that core thesis.
To the people voting for this comment: Search "fan fiction fair use site:.edu" - see if you can find any good legal analysis (*not coming from an plaintiff-IP holder's attorney) that argues that non-commercial, reasonably-transformative fan fiction is automatically a copyright violation. You won't find it. No unbiased professional would ever back the assertion that fanfic is automatically infringement.
Stop voting for comments just because they're long, if you're not willing to fucking read/evaluate/critically think about them, people.
E: And to Dave (?), I sincerely don’t mean this as a polemic against what you wrote. Your comment was high-effort and thoughtful, and you make some valid points about issues of copyright enforcement asymmetry that still hold true. I’m mad at the audience nodding along without engaging thoughtfully in the substance of the message.
Thank you for the rebuttal. I didn't have it in me to reply to the original comment. I'm personally surprised that it was exemplaried because it leans towards the inflammatory (saying fanfiction is theft and therefore its authors thieves) and the source doesn't support the core argument at all.
Even when I did a cursory Google search of my own, all the sources say generally, it's considered free use. And most of the sources that came up were edu sites. When people make fanfiction, they aren't taking away from anything, they're only adding to the Fandom which in turn can convince others to engage the source material more.
https://www.youtube.com/watch?v=hLpV4XEvI-4
Lecture at a convention by a practicing attorney, Courtney Lytle, who teaches copyright law at Emory University.
https://youtu.be/hLpV4XEvI-4?si=567bttd5fmKkQNtW&t=1506
She covers the legal concept of "fixed in a tangible medium", aka writing the book. How ideas aren't copyrightable. She covers what copyright actually protects, which includes (among other things) changing the work (the copyrighted thing) into a derivative work. Which is when a work is taken and made into something different. Sequels are mentioned, as well as translations or even transferring the work into another medium (like writing a song out of the content of a book, etc).
25:07 she starts discussing Fan Fiction. Some selected quotes from her.
And when she dips briefly into the concept of artists who want to rely on transforming others' art:
Fair use is, definitely, absolutely, a legal thing. Using someone else's copyrighted work can be ruled fair use. For sure, that can and does happen.
But so, so, so many people online, especially fanfic writers, Youtubers, all sorts of people who like to take someone else's work and use it as the basis for something they're doing ... all these people, the common thinking, is that somehow standing up straight and saying "nope, fair use" makes all the problems and questions and any sort of trouble just go away.
Which is not how it works. If Jane writes a book, and Sally writes fanfic of it; Jane has every legal standing she needs to sue Sally.
Let's say Jane starts politely. She sends a (letter/email/whatever) and says "You're using my work, I would prefer you didn't. Please stop, take it down, thank you." If Sally says "But Fair Use, I'm allowed, it's my story that I wrote and I'm leaving it up", that doesn't mean Jane can't sue Sally.
Further, if Sally sends a (communication) to the court after the case is filed by Jane, and in that communication Sally says "but Fair Use" ... that doesn't stop the case. Sally still (really, really, really) needs to have a lawyer, and one that specializes in copyright law if she's serious about fighting Jane. Because those are her options that point.
The owner of what she's appropriating has asked her to stop. When Sally refused, Jane turned to the legal system. To get Fair Use to stick, and enable Sally to make Jane leave her alone, the judge has to rule in Sally's favor. For that to happen, the case has to happen. In that case, that's where they'll walk through the Copyright Act, the definitions of Fair Use, prior caselaw, and of course where the lawyers will present arguments for or against while the judge considers and makes a ruling.
All of that is expensive.
Lots of things might or might not be fair use. It is a thing, some artists even make whole careers, some of them well paid careers, out of transforming existing art. Lytle mentions one specifically in her lecture. But a lot of those artists regularly use lawyers, because if they're told to stop, and refuse, lawyers are now involved. Because if Sally ignores Jane, and ignores the court when Jane files her case, the court will take the kind of steps courts usually take when someone tries to ignore the legal system.
Lytle goes on to talk about how, most of the time, most copyright holders don't particularly care to make fanfic writers stop. Because it costs them time and money, it can alienate fans, and all that. She talks about how most of the time, as long as the fanfic writers aren't trying to monetize the fanfic, and as long as the fanfic isn't "causing problems", they just let it be.
Which is all true. But so is the rest of it. Just because a lot of fanfic appears online doesn't mean it's technically legal. It's infringement. But copyright law isn't enforced by the justice system. Cops won't track you down and arrest you for infringing.
It's incumbent on the copyright owner to issue takedowns, and then turn to the courts (hiring lawyers) if the takedowns are ignored. Every copyright holder has to pursue, at his or her discretion, whether or not they want to, or can, enforce a claim of infringement.
One of the things Lytle mentions is if someone wanted to appropriate copyrighted material from Disney, or horn in on a trademark CocaCola owns. And how that would almost certainly end very badly for the infringer since those are well funded copyright/trademark owners who can certainly bury you in legal costs until you probably run out of money trying to defend it.
Most authors are not Rowling or Sanderson or King. Most authors aren't rich. Some are doing comfortably, but not rich. Out of the thousands of authors around the world who have books that are known enough for someone to want to write fanfic based on them ... it's probably pretty assured at least some of those authors don't like the fanfic. That they'd wish it wasn't there.
But it would cost them money to make it go away. It might impact their fanbase, because a lot of fans (erronously) believe fanfic is some kind of right they have to create and would decide they dislike the mean, nasty author now. So most authors just let it be. They only tend to get into it if it becomes a problem.
Like now, with this Etsy thing. Before, it was just fanfics that were on a fanfic site, and people would read them there, and that was basically it. Now, jerks are trying to sell them. Now it's a whole different thing.
Yeah, I'm completely with you on this strand of argument. There is undeniably a large percentage of online fanfic that doesn't meet fair use criteria, and the fact that losses or damages aren't needed for standing makes for some odd enforcement dynamics, as these Etsy vendors are highlighting.
I think the root comment only goes too far in that a majority of fanfic on the web does in fact meet the threshold of fair use, and would be ruled as such by >99% of judges. Specifically:
It doesn't have to reach a standard of commentary or parody - the only threshold on that front is that it's "transformative", whatever that means to any given judge.
I think, and I may have missed if this was mentioned elsewhere that the real issue in suing over fanfic is the lack of articulable damages. When fanfic is free there is not really any point in suing. It likely why fanfic authors are taking their fics down, because they respect that boundary.
I'll note that author Naomi Novik is one of the founders of Archive of our own (a fanfic site) and other authors have been open about writing fanfic - Tamsyn Muir and Seanan McGuire are two that come to mind that I read voraciously. They clearly don't feel that fanfic is inherently illegal or illicit although they cannot read it themselves (of their own works).
I think it’s a little overzealous to spend as many words as you have decrying fanfiction as theft. Theft implies harm, and most fanfic does not cause any tangible harm at all. By contrast, selling something that is supposed to be free to an unwitting buyer has very real harm, in that said buyer has been conned out of their money. Whether fanfic works are acts of infringement by way of legal technicality has little weight here, since law is not morality.
One could argue that the buyer is only paying for the physical copy, the content is still free.
I don't think the buyer – upon finding out they essentially paid as much as $100 for some words the seller didn't even write to be put to paper – would find this very comforting.
You don't really engage with the case of the fanfiction authors, and instead kind of assert that fan fiction is copyright theft. Most legal advocates for fanfic (e.g. OTW) argue that fan fiction is fair use because it is transformative use. I also think it's really hard to argue that fan fic is 'theft' because it quite often actually contributes to the popularity of authors which helps them to sell more books, and people who write fan fic and people who read fan fic have generally read the original work (because it doesn't make sense otherwise) so don't deprive authors of revenue.
However, some fanfic authors get uppity and the bite the hand that feeds by suing the original author for copyright infringement, as you mentioned. Ideas are like clouds, and concrete implementations, like photographs of clouds, are the fixed works worthy of protection.
What does 'IG' mean?
Should have been OG. This is why I hate typing with my thumbs. Editing it now.
Thanks for the link. I was trying to figure out what was the line between a (non-copyrightable) idea and a copyrightable character (which is still just an idea in some level). If I understood the article, it has to do with how unique and specific the ideas the orignal author has created are.
I have to say, though, that I have mixed feelings about the idea that an author or company has a nearly complete stranglehold on anything related on their work. At some point, the ideas and characters have gone beyond the creativity of the author and become part of the cultural zeitgeist. Is that the authors doing, or did they just happen to get picked?
On the other hand, maybe that is like saying that lottery winners don't deserve all that money because we all played the lottery. I'm having trouble pinning down my dissatisfaction.
I guess my instinct is that broad copyright interpretation net loss for creativity and innovation in the world. But saying that a narrow interpretation would be better is counterfactual, and maybe unknowable.
Excellent comment; I haven't been able to fully digest it yet actually. But I do want to discuss this segment:
I'm not a lawyer, but it was my understanding that common law jurisdictions can allow "custom" and "tradition" to be legitimate lines of legal argumentation, in certain situations. The peculiarities and intricacies of copyright law, especially in the online world, would seem to me as an area where "the way things are done" might reasonably comprise part of a legal defense against a copyright infringement claim.
I'm not sure where I'm going with this, I guess I just want to discuss the possibility of the way fanfiction is handled by authors now might be more crystallized/unofficially codified over the near future. The change to the assessment of fair use in courts comes to mind as an example of a legal shift not dictated by legislation or court precedent.
In the context of common law ruling, I'm most used to seeing "tradition" used in settling points according to precedent, or the notion of stare decisis, which is that courts should stand by what is decided. To have a precedent would require at least one prior ruling a certain way. In a novel ruling, a court might look at what was common practice over the course of multiple generations to determine if a tradition exists that is being curtailed by a specific law.
I suspect there are enough rulings against fanfic writers that it would be hard to argue the tradition line.
Pulling your writing from the internet in response seems like an immature reaction. If there's a market for paperback versions, wouldn't you instead think to bind them, and sell them at zero profit, undercutting the current Etsy sellers?
If you're worried about the legality of it, then ... simply ignoring the problem seems like a perfectly fine solution, no? I'm not sure who the binding & selling is really hurting, here.
It’s not immaturity, it’s demoralization.
And this is actually part of the issue — this strange idea that these people who have freely and enthusiastically dedicated so much of their time and effort to something they simply enjoy are somehow immature in their reactions to this because they didn’t immediately turn into savvy, competition-undercutting experts, or just ignore the issue going forward and turn off their caring.
But writing fanfic is a hobby; it’s a labor of love — it is literally built on nothing but care. And these people are justifiably hurt that someone is taking something that they’ve created, which has meaning to them, and using it in a way that might catalyze a backlash against fandom as a whole yet again.
And, on a personal note, separate but adjacent to the fanfic rip-off topic:
I am so incredibly frustrated with this. The almost ever-present, cynical undertone to almost every conversation about the arts, professional as well as hobby, that always seems to come down to solely profit. To how we can strip this down and get that money. Streamline it! — who cares about the process? — any time not spent scheming and selling is a waste, and you let me see it for free, so it’s mine to do with as I want! We’ll use you as our golden goose, but no, no no no, don’t complain about it! We don’t want to hear that!
We are actively demoralizing ourselves and sucking ourselves dry of inspiration, because we are causing the act of sharing our enthusiasm, joyful ingenuity, and trust in open communal spaces to feel too risky, too easily preyed upon, too dangerous. Putting one’s heart out there should not feel like either whispering into empty, echoing, lonely space or running head-first into an open, ravenous corporate mouth, with hardly anything else in-between.
Just take a look at the posts here in the last few days. It’s the same thing over and over. One way or another, we need robust protections for artistic pursuits, or people will simply withdraw from them, and then we’ll only have lost more of even those digital third spaces where people have built years and years of deeply-rooted communities; some of the only places left for us to congregate.
As things are now, without some sort of legislative power to rein all of this in, we are only further discouraging ourselves from attempting to form anything other than the most superficial of connections, because we simply do not want to keep being taken advantage of.
How forward with archival are other fandoms? I have the understanding that the pony fandom is unusually dedicated to preserving works regardless of the author’s wishes—when several new image archives sprouted up in the wake of a change in moderation policy at the main archive, they came filled with images long ago deleted from the main archive. Some were yanked when the artist wanted to pretend they never made those works, others got zapped for not being sufficiently artistic (edits, memes, etc…)
However, they all came from a different archive that doesn’t put forth a web-facing UI.
Some of the (in)famous early fandom crackfics only exist because people keep circulating the copy they downloaded from a friend, at least for those that got pulled before the all-inclusive FiM fiction archives were created.
That was all a contextual preamble to say that people view those authors as immature for taking their ball and going home. May their stories live on despite their wishes.
Immensely frustrating to see you call their actions immature. I bet they aren't idiots, they're aware that someone probably has their works saved somewhere and those writings will keep on living on the web. Hurray?
For the fanfic writers this is the best way to draw attention to the issue. You and I are now talking about it.
Even if it's just "taking the ball and going home", well maybe. But there are reasonable reasons for the person with the ball to take it home with them. And I don't think this is a case where it's just about the person throwing a tantrum because the opposing team didn't let them score, like that phrase implies.
Being unemphatetic and mean doesn't help.
So, having read the fanfictions in question, and spent time in the corresponding community, making a profit off a fanfiction inspires a particularly visceral hate in large parts of the community.
Folks know that creating fanworks are legally on fairly gray and shakey ground, and nobody wants to be a community that causes a firm legal precedent against them. One of the defenses there is to avoid commercialization as much as possible -- rights owners are much more likely to sue when money is involved.
An additional complicated factor in the community is that, despite this shaky legal ground, just like regular authors, many fanfiction authors are quite protective of their works. I've actually seen people claim that people should ask permission before creating fanfictions of their fanfiction. Others in the community sometimes push back on this, but it's not an unususal point of view.
I don't understand why people are saying this is a grey area. It really isn't, laws around fair use are well established and well tested.
What's really meant is that the authors of fan-fiction don't understand those laws. That's fine, IP law is complicated and driven by the needs of mega-corps, not small producers.
The fanfic content creators could issue cease and desists and then sue the book-binders, but they either don't understand the law enough to be able to do this, or they don't have the spoons to keep issuing the legal paperwork over and over. That's a valid point -- ripping off other people's content is so common it becomes exhausting to keep up with it, and people do just give up.
My understanding is that the use of characters in a fanfiction are a breach of copyright on those characters. To be considered fair use, my understanding is that it needs to be both 'transformative' and noncommercial. So the fan-fiction itself could be considered fair use, but what these etsy sellers are doing is breaching copyright. I think it's quite a stretch to say that fanfiction authors hold a copyright on their works, it would be the original creators who hold the copyright. They could maybe copyright the transformative portion of their work, but it's still pretty useless for any commercial use.
The original creators hold IP rights to the characters, and that may include copyright. But Fanfiction authors are transforming the work -- eg the characters don't have sex in the original books -- and it's obvious to me that fanfic authors have copyright over what they've written. They've created a mostly original work, re-using ideas from some other work (and ideas aren't copyrightable).
It's not, because illegality voids all sorts of things. Like, if you try to buy a rock of cocaine and the dealer sells you laundry powder, you don't have right to sue. As in, the transaction was never valid in the first place so their disingenuity during the transaction is also invalid.
So, if the fanfiction is built on copyright infringement in the first place then the fanfic-author does not have any (valid) copyright for the Etsy book-seller to infringe (the original author is being infringed though so the Etsy book-seller is still breaking the law).
It's worth reiterating that the law is determined by politicians and courts, not by morality or what seems intuitively fair. I'm not saying this is right, I'm saying this is what the law states, to the best of my knowledge (IANAL).
https://en.wikipedia.org/wiki/Anderson_v._Stallone
Anderson wrote a Rocky spec script for what he wanted to become Rocky IV. He then decided that the actual Rocky IV as it moved forward was a ripoff of his script and sued.
Fanfic is derivative. Of course, any fanfic author with the means to hire a lawyer can probably have his or her day in court, which will cost both sides money. But in the cited case, it was so clear that the Copyright Holders (Stallone and the studio) were granted summary judgement. Meaning they didn't even have to go to trial.
The cites the judge listed that led him to grant the summary judgement almost certainly apply to most, if not all, fanfic creations.
https://en.wikipedia.org/wiki/Prelude_to_Axanar
A Star Trek fan project that used original characters, written by Alec Peters. When they got fan funding to shoot and release a full 90 minute movie, Paramount (the copyright holder) sued claiming the project used "innumerable copyrighted elements of Trek."
Peters asked for summary judgement to dismiss, arguing the elements of the Trek universe he used weren't copyrightable. That was denied by the judge. About ten days before the trial was going to start, there was a settlement where Peters agreed to make substantial changes to Axanar, and would abide by newly released guidelines Paramount had created regarding fan projects using Trek.
Five years later, the matter went to arbitration when Paramount alleged Peters had breached the settlement agreement. Peters ended up owing about $300,000 to Paramount.
There's a reason EL James, when her Twilight fanfic (Master of the Universe) continued to build popularity and she decided she wanted to publish it, there's a reason she went through and scrubbed it completely of Twilight elements.
Stephenie Meyers could have sued her at any time prior to that, when 50 Shades was still a Twilight fanfic. Meyers very probably would have sued if James had actually published (not just posted online) the story, and probably would have won. Rather than enrich lawyers, James scrubbed her work and converted it to something "original."
(Sorry, I have to put original in quotes, because 50 Shades is tripe and I can't call it original, or even literature, with a straight face. But that's not strictly relevant to this discussion.)
Fanfic is infringement. From beginning to end. If it's using someone else's IP, it's infringement. It just is. Writers who want to control their work write something original. Characters, setting, world, all of it. As long as they do that, they can publish whatever they like and be in the driver's seat as far as controlling their IP goes.
But when they borrow someone else's, they're basically writing with a sword dangling overhead. At any point, the copyright holder can decide to start sawing at the thread suspending the sword and bring lawyers into it. Easier to just either (a) stay under the radar by not making waves, or (b) write something original.
But is it transformative when a writer remains true to the character? The character themself aren't being changed (generally speaking), but the scenarios they're being placed in are. That's where some uncertainty comes in. It's really about where is the line drawn since there are people, places, and things that writers explicitly use from a franchise/book/movie. Is the transformation in how accurately they can write the characters or not? Fan fic writers aren't using nebulous ideas, they're using whole elements and casts and parts of things.
Copyright over characters and worldbuilding is much more ambiguous legally than copyright over the actual text of the work. It's a thing, but it's easy enough to argue that there are sufficient differences from the original characters in many fanfics. And even if the fanfics include copyrighted elements like characters and worlds, it's the work as a whole that's assessed for transformativity, and most fanfic has more than enough original content to easily be seen as transformative.
All very good points! Spot on. It's important to remember, like you said, that it's the work as a whole that's assessed and not just the bits and pieces.
This is not strictly true -- these are both factors taken into account in a fair-use analysis, but they don't both have to be true nor are they the only factors. Sufficiently transformative works can be fair use even when they're commercial. Noncommercial works may be given more leeway but it's not a direct predictor of fair use and it's not a legal requirement for it. It's a common myth (especially within the fanfiction space) that noncommercial works are "safe" but they aren't. The bigger factor when it comes to commercial work is whether the work "infringes on the market for the original", which it would be hard to argue is the case for the vast majority of fanfiction. The work being entirely noncommercial wouldn't hurt, but in a fair-use analysis but it's not even close to a deciding factor. A judge weighs all the fair use factors on a case-by-case basis, so it's difficult to generalize much beyond that because it could differ between different fanfictions.
But the major factor with a fanfiction lawsuit would, as always, be how deep the pockets of the plaintiff are compared to those of the fanfiction author -- being fair use doesn't pay your legal bills, especially in a case like this where anti-SLAPP laws wouldn't really apply.
These etsy sellers are indeed breaching copyright -- the copyright of the fanfic authors. They should submit DMCA requests or something equivalent to Etsy if possible. Whether the fanfiction itself is fair use is honestly irrelevant because without the fanfiction authors' permission this is still blatant copyright infringement. Even if a piece of fanfiction isn't sufficiently transformative as a whole to be fair use (pretty much never the case fwiw) the fanfiction author owns copyright over anything original they added.
Can you provide an example of a commercial fair use work that sells otherwise copyrighted material?
Literally any monetized youtube video that shows clips from something not made by the same creator but includes sufficient commentary or other content to justify the inclusion of the relevant copyrighted material. Virtually any movie review or video essay on YouTube falls into this. Most videogame streaming would also probably fall into this category, assuming there's sufficient additional content/commentary from the streamer. A commentary-less upload of someone playing a videogame is likely not fair use.
For a court-tested example, h3h3 won a lawsuit based on a judge considering their reaction content fair use. The judge in that case explicitly pointed out that the inclusion of commentary was a big factor when it comes to whether reaction content specifically is fair use.
Even the most transformative reaction content is almost definitely a closer call when it comes to fair use analysis than almost any fanfiction, though, because the third factor of a fair use analysis is the amount and substantiality of the work used. Reaction content by its nature usually includes a substantial portion if not all of the work being reacted to. By contrast, fanfiction typically never even quotes the original copyrighted work directly, giving it a significant leg up in that factor of the analysis.
I mentioned this in my comment, but the copyright for the fanfiction itself (the written piece) is still with the person who wrote it, it's the characters/world/etc. that belong to the author or whomever the fanfic is about. Least ways that's what I've read and seen as the interpretation of copyright.
That's not how fan fiction works. Fan fic is in a legally gray area already (some people encourage it and people like Anne Rice sue if they find it regardless of profit status). But the person who wrote that piece of fan fic still owns the right to the work they made, but not necessarily the right to profit because of the legality involving characters they don't own the copyright to. That's just the facts, and not me arguing one way or another.
If the author wanted to bind and give out their work for free, that'd likely be fine. But I don't think it's immature to pull your writing off the internet because someone is exploiting it. Alot of people who are creating fanfic do so because they like it, and it's a hobby. They are already giving their hard work out for free for people to read and interact with. The additional work of binding and shipping can be costly, especially just to undurcut an etsy seller. The fanfic writer can report the etsy listing as breaking copyright.
And @Interesting has brought up very valid point about the culture surrounding fanfic as a whole. Many authors see their work as their baby, their bugaboo. You can look but you cannot touch. And that's fine, it's easy to follow a writers wishes, as there are also plenty of writers who are out there and love to see their fanfic inspiring others and the like. There's nuances there that influence authors responses so to me it seems pretty in line that someone would remove their work.
I guess my argument here is that in a the present era of AI scanning everything you do, duplicating it without attribution, endless amounts of scamming and profiteering; writers of free fan-fiction better be content to write for the fun of it, or they are in for a bad time!
They are. They just don't want someone else selling what they are giving away for free.
Partly, I suspect, out of moral offence, partly because they know they are on unsteady grounds themselves, and don't want anyone to be forced to take official notice of anything.
As a miniature wargamer, I see this a lot with 3d prints for models too. I've found numerous models on Etsy that are most definitely not an open license (you can find the original models online), yet many Etsy sellers are printing them and selling them for exorbitant prices anyway.
I was just recently looking for some models and found some on Etsy that looked nice, but the seller was asking $50 for them and was slow to ship. I managed to find the STL for $12.99 and can now print as many as I like, but the STL definitely wasn't listed as open and available for anyone to print and sell.
You can still find some good stuff on there, but Etsy definitely has this scummy undercurrent to it.
How pricey are 3D printers? At $50 a pop, wouldn’t it only take like 20 figures before it’s cheaper to buy your own equipment?
I got mine for free from a buddy who upgraded, but mine is a smaller model. Similarly sized printers from the same company are about $170 on Amazon, then I also spent another $12 on a Cure lamp and I just wash my stuff in a jar with isopropyl alcohol, this saved me $100 on a wash/cure station. So I've spent about $50 total so far on the Curing lamp and resin.
So yeah, it's pretty much cheaper, but there can be caveats, such as if you're into Games Workshop games, they often won't let you play at their stores or their tournaments with 3d printed stuff. But, I just printed out $200 worth of stuff I'll be taking to a tournament for a GW game, but the tournament isn't run by them, so it's ok.
But another caveat is that it really needs is own well ventilated space, as the fumes can be toxic and the resin is also toxic, as well as can for some people, cause chemical burns if it gets on their skin.
Also, it can sometimes be a challenge to print something and takes time tinkering with settings to get it to come out right (depending on how skilled you are at slicing a print). For instance, that $200 I saved was also two weeks or so of trying to get the prints correct. Some of the things I printed took 6 hours to finish, only to find that it had failed at some point, so back to the drawing board (or slicing software, as it is) to try and get it right the next time. In some cases, it would have just been easier to drop the cash and build the models immediately with less fuss.
It has benefits and drawbacks, so I can see why someone might just want to buy a print. A big benefit is that you can find whatever you want to print and do it yourself, rather than hoping someone else has done it and is selling it. For instance, I like some relatively obscure British Tanks from WW2 for another game, so it's nice that I can just grab the files and print what I want.
It isn't just fanfic books. There are Etsy sellers that take mods/ROM hacks and put them on cartridges and sell them for a pretty absurd markup.
I would imagine that this applies to any platform where content is delivered to the community for free, but there are hurdles for the consumer to overcome in order to use the content. There is money to be made by jumping those (however minor) hurdles.
I would have thought you needed fairly specialized equipment and knowledge to burn games onto a cartridge
There are pretty universally cartridges available where you can just load up a SD card full of ROMs. They don't tend to cost much more than one of these pre-made cartridges. No special tooling needed.
In that sense, the people selling the cartridges are really selling the experience of having a dedicated cartridge. I don't actually have a huge problem with it, because they are filling a niche that I neither want to nor have the tooling to fill. It isn't an item that I would buy, but some people seem to want it.
Emulators and flash cartridges are very easy to use.
Though I suspect most of the people buying these etsy copies aren't doing so because they're dumb, but because they want a real-ish physical copy of something they love.