Author has written 18 stories for Harry Potter, Full House, Smallville, Labyrinth, Lord of the Rings, Tin Man, and Wonderful Wizard of Oz.
My name is Glitchie and I’m a screw up. Laugh, it was a joke at my expense!
Okay, no. Seriously, my name is Sharon Akins and I've decided to update my profile with information that can help the fan writer. Over the past year, in fact since March of '08, I've been trying to get a couple of my solo and collaborative Tin Man pieces published and recently, I narrowed down the search for copyright holder I needed to speak with down to two: RHI Entertainment and Distribution and Nick Willing, the director of the series.
After contacting Nick Willing first (he was listed at the top above RHI Entertainment) through his agent, I received a reply from his agent saying that they didn't own the rights I needed and that I should contact RHI. When I contacted RHI a few days ago, I spoke with someone on the phone and they asked for more information be sent via email so that they could know what I wanted to do, what permissions I was seeking. I sent them the links to the two stories I had here that I wanted to pursue publication for - The Mitosis series of which the first story A Matter of Mitosis was here as well as my solo project, Child of the Sun. Well, apparently, the guy I spoke with went on vacation and his assistant wrote me back, sending me the usual legal mumbo-jumbo...
'I have been asked by my colleague, (name), to look into your request regarding the use of certain characters from the made-for-television miniseries "Tin Man" in what appears to be a series of stories, portions of which you have apparently uplinked to a website.
Please be advised that under no circumstances may you use ANY of the characters from "Tin Man," either in any proposed story or as material on any website unless and until you have received express written permission from RHI Entertainment, which at this point in time is NOT given.
You are to immediately cease and desist from naming, referring to, including or otherwise incorporating any of the characters from "Tin Man" in any work or on any website (from which any and all mention of characters from "Tin Man" must be immediately removed); any such use or inclusion shall be an infringement of RHI's rights in and to the miniseries, including its rights under copyright, for which RHI shall avail itself of any and all legal and equitable remedies.
Now, as you can imagine, I was extremely frustrated and angry with this. At one point in on another site, someone who I am disinclined to name here said that it was people like me who ruined fandom. Seeing this letter upon face value, I might have to agree. But that is just upon first looking at the letter.
I went ahead and did as they asked; but it seemed unfair; mostly because it felt as if they were just doing it to stamp out our creativity. It wasn’t like the 4-5 books I was looking for permissions to publish would be the next set of Harry Potter books after all. I mean, one can hope, but the probability is highly unlikely. While Child of the Sun was largely under developed and can be changed if I pursue publication, the series was in its third part and we were hoping, nearly complete.
Honestly, I don't care about money. That was not why I was seeking to publish the series with my friend. I was seeking to publish it because of how we wrote it. We were actually connecting Tin Man back to L. Frank Baum's Oz more firmly than the Tin Man creators had already. I had wanted to publish the series to hopefully bring back a love for the original series written by L. Frank Baum and continued by Ruth Plumly Thompson, John R. Neill, Jack Snow, Rachel R. Cosgrove, Eloise Jarvis McGraw and Lauren Lynn McGraw.
While their stories were more geared toward children, the writers of Tin Man drew upon L. Frank Baum's Wizard of Oz for their 're-imagining' but quite frankly, Tin Man wasn't geared toward young children as Baum's books were intended, and well, neither is my writing. But I’ve found people of all ages are drawn to Oz and for many different reasons.
Anyway, after receiving this email from RHI, it bugged me so much spent the entirety of the night looking up copyright law and the legality of fan fiction and I’ve found that while the story is not making a profit, legally they can't do anything but threaten lawsuit. You are not making money off it, you are not hurting their market, you are not defaming them, and so, you aren't doing anything illegal.
What happens is that big corporations seem to sometimes get confused between copyright and trademark laws. But I mean, who can blame them? It’s not like the law is written very clearly, even on the site I researched.
The site I looked at was called Legal Fictions: Copyright, Fan Fiction and a New Common Law. It is relatively difficult to read due to layout, with the information and research notes not in APA style in which all the citations made in the document are referenced at the end of the document, but it did answer a lot of my questions and I know now, or at least have a feeling of why RHI sent me the message to remove all my Tin Man stories. Which I assure you, I will be returning in the next few days after having read the information on that site.
I have learned that Fan Fiction is legal so long as it remains noncommercial. This I find is where I made a mistake. I don't care about the money as I said, but yes, I am one of those writers who want to walk into a bookstore and see my name on a book on one of the shelves. Is that so wrong of me? If I can get rights to publish something from a copyright holder than I will do so, but if not, leave me alone, I am not stupid enough to publish fan based content before and until rights are obtained, but you can't do anything to me under fair use. If I don't get rights, I will get my name on a book in a bookstore and I will get there on my own with my own work. Now, I can see where RHI has rights over the characters in Tin Man, but they do not have rights over L. Frank Baum's Oz. That is public domain. And, as I said, the way that my friend and I were writing the series of Tin Man stories, we were linking them back to Baum's Oz... To Dorothy, more than just the 5-10 minute stint that Sci Fi Channel, RHI and Nick Willing gave it.
It may not have been apparent in A Matter of Mitosis being mostly about Ambrose and his history and getting over his fears, but really, the scope of the story was so broad, that it couldn't be made into one story... A Matter of Mitosis after its first edit in which it appeared here, was forty chapters alone!! Over the span of the series, you find out why the Queen is so against Ambrose being with Wyatt Cain and in the second story, you find out the lengths she goes to in order to break them up. In the third part which my friend and I are still working on, you find out that she is still trying to separate them and what lengths they go to in order to stay together. While I don't want to give the story away if I can only ascertain to posting it here as a true fan fiction without profit, I have to say, it is quite exciting and brings about another change in regime.
So, RHI is threatening to sue me. I am standing here. It might seem as if I’ve just painted a big bull’s-eye on myself, and well, maybe I have, be it from the fans or from legal action from RHI themselves, but well, I think it was worth it. It was an interview by Tin Man's own writers that gave me the courage to ask in the first place. So I've asked, and they've more or less said no. I'm not going to let them keep me from doing something I love, however. So far, even in seeking permissions, I’ve not actually done anything wrong. I didn’t go behind their back on anything and just submit something to a publisher anyway, nor did I do so before I even sought them out to ask. I did all the leg work I needed to do.
Right here, right now, I’m formerly telling them, with all due respect because I love the mini-series and the characters they own rights to that I’m not going to let them take away something I need. I’m not hurting their market shares or claiming to own the characters in my stories. If they decide not to grant permission to publish anything, I’m okay with that. I will just set it aside and not pursue it actively, leaving the stories as fully fledged fan fiction. Why do I say I need it? I say writing fan fiction is something I need because it provides an escape from the pain. I’m not talking emo-pain here, but actual, physical pain.
Not that anyone in particular really cares, having their own problems to deal with, but I’m talking about pain caused by actual health issues. My spouse asked me once why I didn’t just drop fan fiction and write original stories of my own. At the time, I didn’t really have an answer. Now, I do. I write fan fiction because the worlds, the rules of the worlds, locations and characters are already established. All I need to do is work within that world’s preset framework to develop my story.
I’ve set down and attempted to hammer out multiple original stories, in fact I am working on one now even though nothing on it has made it from my brain to the computer. One of the health issues I suffer from is chronic migraines. Sitting down and trying to come up with names for locations and characters causes them to flare. I also suffer from fibromyalgia and while I wish I could crochet more, I can’t hold the hook all that long. I was diagnosed with Adult ADD in fall of last year so I can’t really sit and just do nothing. Writing, or rather typing allows me to do something productive, however debatable, for a reasonable amount of time. So yes, I say it is something I need.
Getting back to the legalities, creativity comes from all over... even TV shows and movies use recycled themes and plots. Nothing is really ‘original’ anymore as pathetic as it sounds, it’s true. It’s just our culture. Back in high school, I was writing a story in which I saw in my head a stormy night in which a horse drawn carriage was making it way up a treacherous cliff side road to a castle at the top of the cliff. How many of you know that I just described a scene from Dracula? To tell you the truth, at the time I wrote it, I had a fascination with vampires, but because my mom was so religious and strict, I’d never seen it or read the book. All my knowledge of vampires came from the internet where I researched the actual myth outside the iconic story by Bram Stoker. At the time I was working on that story, I didn’t know that I was writing what was in essence with viewed as a fan fiction, or plagiarism.
Most fan authors are not lawyers and have limited means. It is more likely that they are students or parents working a full time job getting paid minimum wage then that they know anything about the laws concerning copyright and trademark infringement. They are at the mercy of their Internet service providers, who, fearing liability as accessories to such infringement will shut down an account or Web site in response to an informal complaint from a copyright owner. This reaction makes it easy for copyright owners to enforce a vision of copyright law that extends to every mention of their property. This is a prime example of what is going on with Youtube and the music/video industry. Youtube deletes member videos with songs that 'someone claims copyright over' without warning and never telling the member just who claimed copyright. This is why I’m no longer on YouTube, but am searching for my own site for my fan videos.
Fan Fiction may infringe upon copyright holders rights in characters; characters being defined as the unique personalities used to express a concept. Customarily, copyright law protected only against exact copying, even without protection from translation and abridgment. Copyright law has since expanded its reach beyond duplication to looser forms of borrowing, including the use of well-established characters. However, the extent of protection for characters independent of the works in which they appear isn’t clear, and the case laws are lengthy and confusing.
Basically, I’ve learned from the site that characters themselves can’t be copyrighted unless the character is a major grounding point for the story, and the removal of such a character form a work destroys that work. This is my reasoning behind thinking Harry Potter is copyrighted. Harry Potter appears in every title of JK Rowling’s books. Without Harry Potter, there is no book. Luckily, the fans are aware, through JK Rowling’s own site that she supports and is flattered by the many fan stories related to Harry Potter. The lawsuit in the news about JK Rowling suing the head person of the HP Lexicon, Steve Vander Ark for seeking to publish a version of the website in book form was in fact true, and after a recent visit to the site, I’ve found out that the issue has indeed been resolved in accordance to JK Rowling’s rights, still allowing a book by Steve Vander Ark which will be out soon if it’s not already.
But even assuming the character itself is a whole work, under this example, questions remain. Have fan authors made use of the entire character, or taken just the name and some attributes? Does it depend on how in-character that character is portrayed in the telling of the fan author’s story? Is a poor portrayal in compliance more as a fair use? Does completely altering the setting matter, for example, placing the Star Wars characters or perhaps Lord of the Rings characters on present-day Earth? These definitional problems suggest that it is too indeterminate in a productive use context to be weighed heavily.
According to references found on the site, the Supreme Court has held that, where a free broadcast is concerned; the use of an entire work "does not have its ordinary effect of militating against a finding of fair use." Now, I may not understand this right, I admit, but to me this sounds like it means that in the case of a copy right holder like RHI wouldn’t be able legally to sue me – or anyone – in fandom for use of their characters so long as our medium of market remained free in accordance to fair use. I suppose technically they could sue, but that doesn’t mean that they’d win.
Looking into this example further, the Court has also held that the substantiality of the use should be evaluated in light of whether it is "reasonable in relation to the purpose of the copying," an inquiry that is intertwined with the first and fourth factors of fair use that can be found on the site. Given this information, even wholesale or across-the-board borrowing might well be legitimate if, as with fan fiction, the use is transformative, noncommercial, and not a market substitute.
Copyright does not ensure the integrity of an author’s vision even before readers begin to interpret texts. Once a text reaches readers, the copyright owner loses control over its interpretation because words can be miscued or can sound different or have a different meaning to others. Furthermore, the interest in the integrity of characters is not an interest in market share, but a general reputation concern, which copyright law doesn’t formally recognize.
This is where I believe that RHI is confusing Copyright laws with Trademark laws. Trademark law does recognize reputation concerns, but copyright's special solicitude for parody demonstrates that its concern for creativity requires a different kind of analysis. Whether this is true for TV shows and movies to fan fiction, or just literature to literature, I don't rightly know, but it seems to me that it would encompass these mediums as well. In this instance, I think just because I write mostly gay fiction, I and others like me, can still work in our chosen niche because we are not writing as such to defame the corporations integrity, or slander the characters. Hurt is not my intent anyway, and really, I can only speak for myself.
One way to hopefully avoid any legal arguments many fan authors try, is posting disclaimers on their works. This doesn’t always work, but can be helpful in a writer’s defense. I have to admit that I sometimes forget mine, I'm only human after all, and regardless of how anal-retentive I can be, even I make mistakes - sometime huge ones! I really need to sit down and make a file for a story header, including disclaimer section to import into my stories. It would be quite helpful.
The bottom line is that fan fiction is mostly nonprofit, and on the Web no one has to pay to read it. Copyright disclaimers, therefore, often emphasize their non-commerciality as a reason to protect fan fiction. In this way, fan authors evoke a general social consensus that noncommercial use is fair use. Developing fan fiction involves original input, taking the borrowed characters into new situations and exploring their thoughts and feelings in ways not present in the official texts or mediums. This type of elaboration involves the addition of much time and effort, should fall into the category of "transformative use." Fan fiction's frequent statements that a story belongs to an author, even if the characters do not, emphasize this contribution.
Admittedly, I’ve attempted this kind of thing once before, and should have learned from my experience when I approached Tolkien Estates for permissions to get a treasury of Lord of the Rings fan fiction published and they turned me down… in fact, with this same kind of letter that I received from RHI. But well, there’s nothing saying that a fan author can’t attempt such action when going through the proper channels and procedures, just remember to keep the story that you seek publication for as a fair use story until you get an definite yes or no from the copyright holder. If you attempt to publish for profit then they can sue you for infringement on their rights and win. Remember, its when no lucrative market share is sought and productive use is made of copyrighted characters, fan fiction should be recognized as expressing a protected and valuable form of human creativity - if only in the margins.
Now, after all of this, I suppose they might come back to me and attempt to claim that Glitchie, my pen name is infringing upon their character, Glitch, and in a way, they could be correct. I chose the pen name Glitchie out of respect for Glitch, but there is more too the name than just that. As you may or may not have noticed through my stories and in this information I am a bit forgetful. I attribute this to my currently uncontrolled ADD and so yeah, I’m a bit glitchie myself. So once again, I don’t believe that they can legally do anything to me.
With that understood – I hope – I have every intention of returning my stories to the site. If RHI wishes to decline my requests to do a published story, even with agreement to share profits of sales with them, then they do. In that case, I will put my fan ideas aside and keep them to fair use. This event has helped me in one respect regarding the stories at least... it has given me the excuse to remove the stories to do more editing XD. Not sure when or if my other stories will get the same treatment. A general fan fiction Live Journal group header layout is now available in Word document form for fair use purposes. A link can be found on The Old Road profile page at the bottom along with instructions on setting up the file for use. You don't have to be a member of the community to download and use the template. It was created for fair use.
You can find my other work, including my original Oz story that was revamped from Child of the Sun here on Fan Fiction into my own original piece on Webook under the same title. Please join Webook for free to review and leave comments on the story. I also have a new site at Something to Fight For. It is a user driven fan site that is currently in beta testing. Feel free to join and add your own fan fiction.
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