Forum: Author Hangout

that can be covered by copyright and/or trademarks.

That's what I said. Plagiarism is different. It's copying words verbatim.

Let's face it - 50 Shades of Gray started out as fan fiction.

And the publisher told her to make changes to it before it could be published.

Also, part of it also plagiarized "Twilight" word for word. But the "Twilight" author said something like, "If she can make money off it, good for her." Not many authors feel that way.

if a term enters the popular lexicon and becomes a generic term AND the trademark holder can't prove that they are at least trying to defend their trademark then the company can lose its trademark protection.

People often vilify those with fame, wealth, or corporations with brands, when they sue some "innocent fan" for making something.

But this here is key. You have to sue or take some kind of adversarial action, or you lose your own rights.

That noted, I'm not exactly sure why Harry Potter fan-fic and other such fan-fic has been able to get past this issue - especially when rights holders have sued. There's some difference there that carves out an exception. Probably something to do with rules about parodies, but this is an area where I have no expertise.

That noted, I'm not exactly sure why Harry Potter fan-fic and other such fan-fic has been able to get past this issue - especially when rights holders have sued.

Generally, Rowling does not mind fan fiction. SO long as it is not sexual in nature, remains true to the intent of her vision of the stories, and is not for profit.

Write a fanfic and throw it up, they do not care. Make a slash or lemon fanfic, then they wake up and take notice. Try to sell your fanfic then they jump all over you.

Myself, I tend to avoid such and have only written a single fanfic (and that was over 20 years ago). It can be a lazy or easy way to start a story, as it eliminates all the need to "develop" the character and world.

Want to set up a setting involving kids in a boarding school? You have to make the characters, the school, and everything else. Do it in space or in a magic setting, same thing. But you also have to create the rules on how it all works.

That is one reason why you have some "Universes" in here. My own "Night of Madness" is such an example. I wanted a "gritty comic book" style story, and decided to allow others to "play" in it. That let them skip over all of the stages required to make a universe, and just get on with the story.

My other long form story did something similar, by setting it in the 1980s. An era most know about, through popular culture even if they did not live through it. Only the characters needed to be explained, not the setting.

Trade marks apply to a particular field, so in general, using a trademark to refer to the good/service it was registered for in a story is non-problematic.

It is if you don't capitalize it. Aspirin, thermos, and others are now common nouns, not proper nouns, because the owners of those names allowed them to be used generically. They lost their trademark.

But that's not what this discussion is about. Whether you capitalize "harry potter" or not, you can't use that character in your story.

Whether you capitalize "harry potter" or not, you can't use that character in your story.

I would imagine you could use the name 'Harry Potter' for a character though, as long as he's not a boy wizard attending Hogwarts.

AJ

I would imagine you could use the name 'Harry Potter' for a character though, as long as he's not a boy wizard attending Hogwarts.

I don't think so. The following is from JKRowling.com's Terms of Use under the section Intellectual Property:

Harry Potter and Fantastic Beasts characters, names and related indicia are trademarks of and © Warner Bros. Entertainment Inc.

Harry Potter, Fantastic Beasts and Pottermore Publishing and Stage Theatrical Rights © J.K. Rowling. All Rights Reserved.

No permission is given in respect of the use of any of these brands or marks, and any such use may constitute an infringement of the holder's rights.

I don't see how anyone can trademark such a common name as Harry Potter. For sure, someone must have used it in a story before JKR.

AJ

What they claim and what they can have supported in court are not always the same thing. Should I write a story set in Australia of the 1800s and have no magic or anything to do with the Hogwarts Universe in the story while the main character is named Harry Potter they could sue me for whatever they like, but they'd never win the case in court as my story does not in anyway infringe on the areas of their claims.

In trademark violations you have to prove the other party used your trademarked item in a way that dilutes your use. That's why there are many companies with the same name but working in different industries or sub-fields of work. BOSS is the name of a maker of sound systems and also the maker of automotive suspension systems and they are not related to each other, never were, and both have the name trademarked, but those rights only apply to their industries.

Use Harry Potter in story with magic and you'd be in violations, use it in a story that has nothing to do with magic and they can whistle in the wind.

I would imagine you could use the name 'Harry Potter' for a character though, as long as he's not a boy wizard attending Hogwarts.

Exactly.

Hell, Rowling did not even invent "Harry Potter".

Back in 1968 there was a movie made called "Troll", which Rowling herself once said was an influence on her work. It involved a blending of magical and real worlds, with the magical world hiding out of sight of normal people.

And the two main characters? Harry Potter Sr. and Harry Potter Jr.

I agree that it's unresolved. I probably should have phrased that differently.

In the United States, non-commercial fanfiction is considered fair use.

I don't think so. From https://medium.com/swlh/fanfiction-and-copyright-has-the-digital-age-rendered-copyright-laws-obsolete-aa8a82be6fc5

Fanfiction in its current form is an infringement of copyright. Fanfiction is defined by the use of characters and expression from an original creative work and the creation of derivative works, all of which is illegal under current copyright law (McCardle, 2003). Most fanfiction expands beyond the limited allowances to comment and critique allowed through fair use (Johnson, 2016). They also borrow substantially from the creative work, and fair use is less likely to apply the more of the original substance is copied (McCardle, 2003). As characters typically closely resemble the characters in the original work, and are not hyperbolised to the point of parody, the 'parody' fair use argument does not apply. Some characters, settings, and plot elements are also trademarked, serving another avenue for prosecution. (McCardle, 2003). The advent of the Internet and the popularity of fanfiction has presented a challenge in policing and navigating copyright laws to uphold copyright.

I'm not surprised that author takes that approach, since their argument is that copyright law itself is outdated because it bans things like fanfiction. However, the larger consensus seems to be that 'fair use' does cover non-commercial transformative fanfiction.

Fanfiction is fair use as long as the work is "transformative," meaning that the new author added content with new meaning and value to the original work. The derivative work must also be "noncommercial" in nature, meaning the author does not make any money from their fanfiction.

https://library.jefferson.edu/librarynews/index.php/2022/02/23/fair-use-and-fanfiction-3-of-4/#:~:text=Fanfiction%20is%20fair%20use%20as,any%20money%20from%20their%20fanfiction.

Consider:

Though fair use determinations involve four distinct factors, the two arguably most relevant factors when evaluating the legality of a fanfiction work would be: (1) the purpose and character of the use, including whether such use is of a commercial nature; and (4) the effect of the use upon the potential market for or value of the copyrighted work.https://blog.jipel.law.nyu.edu/2021/04/is-fanfiction-legal/

The vast majority of fanfiction is non-commercial and has little or no impact on the potential market or value of the parent work (indeed, fanfiction likely overall increases the potential market of the parent work, since it's seldom interesting unless one knows the parent work).

Yes, the parody exception doesn't apply, but you don't need all four, you need one or more of the four (e.g. Weird Al gets by on parody, even though his use is commercial, perhaps affects the market for the original work, and uses nearly all of the original work).

As far as 'original substance', the issue is that 'Harry Potter' and all the other characters combined are perhaps a percent of J.K. Rowling's 'substance'. The vast bulk is plot, which fairly few fanfiction works borrow from. The ones who borrow more plot also tend to alter the characters more.

Yes, it's absolutely possible that the fanfiction community and its legal advocates are all wrong. Case law is pretty limited. However, if one had to toss a coin, the odds seem high that fair use applies. That's why authors and publishers have been exceedingly reticent to press challenges in court despite easily having the budget to do so.

Disney, for all its oft-alleged litigiousness, has gone after primarily visual representations, not written works, and has tended to avoid non-commercial, parody uses.

Both statements are true. The consensus of most analysts seems to be the 'fair use' covers non-commercial transformative works, and there aren't court decisions making it definite.

That's true in many areas, though. The law is full of places where there's no definitive ruling and yet convention has held for decades that X is acceptable and Y isn't. Sometimes courts reverse those, sometimes they don''t.

It does matter, though, because it's informing behavior on both sides of the issue. Fanfiction authors continue writing because they believe they're not in legal jeopardy (those that care - but many do), and publishers and authors are clearly loathe to test the theory in court.

No one has a motive to being this to trial, so until we get an intransigent plaintiff or a deep-pocketed defendant, it's going to stay a legal gray area.

This is an article on copyright infringement, fan fiction, and fair use. It has 10 actual court cases:

https://www.trademarkandcopyrightlawblog.com/2016/10/10-copyright-cases-every-fan-fiction-writer-should-know-about/

What I got out of it is — it depends.

"Fair use" is a legal term under US copyright law. Unless or until you can point to an actual court decision ruling that fan fiction is fair use, it's all just speculation.

None of the real cases have ever really gone that far. But this is what the general understanding of it is in relation to fanfic.

Fanfiction is fair use as long as the work is "transformative," meaning that the new author added content with new meaning and value to the original work. The derivative work must also be "noncommercial" in nature, meaning the author does not make any money from their fanfiction.

Most times if such is called into a lawsuit, it is for one of several reasons. Commercialization, which is most often why lawyers get called in. And as most fanfic writers make so little the court fees would eat them up they drop it.

In others, it is about defamation of the original. This is what Rowling uses when she goes after slash and lemon stories. And once again, most of the fanfic writers give up because they are not willing or able to lawyer up against that.

Someday there may be a case that actually gets to court. But in most that have started, one side or the other eventually dropped it. Generally in following with the general opinion stated above.

I know Paramount decades ago tried it with Star Trek fanfic. That was probably the first of the genre, but ultimately they said that so long as it was not for profit they would allow it. Which started the Zine garage industry.

Again, "fair use" is a legal term. Without court decisions on point, the general understanding is meaningless.

And in what the ultimate desire of the lawsuit is.

In 99% of cases involving fanfic, as there is no money involved the most the author-owners are after is a "cease and desist". With no actual "monetary damages", most cave because of this.

The few cases I know of that went farther ultimately either had money involved in the publishing of the fanfic, or the characters were changed greatly from the intended origin. Such as slash HP stories, or fanfic sites that charged money.

Back around 25 years ago when "Internet Web Rings" were big, a few were shut down relating to that. There were a ton of those in the early days, but I have not seen a working Web Ring in well over a decade.

But ultimately, most "lawsuits" related to fanfic (published or not) only seek a "cease and desist", and monetary damages, usually equal to lost royalties and a penalty for trying to evade royalties. They are not done as most lawsuits where cash is the ultimate objective.

However, the larger consensus seems to be that 'fair use' does cover non-commercial transformative fanfiction.

Consensus by who? Probably a consensus of those who write fanfic! Come back and say that when it's a consensus of judges.

Also, you have to take into account the copyright laws of both where the original work is published and where the fanfic is published as the copyright owner could take them to court in either location. Rowling wrote and first published in the UK, so someone in the USA who writes fanfic of her works that violates the copyright laws could be dealt with under either the US courts or the UK courts and the choice would be Rowling's.

Fair Use is allowed for in most of the copyright laws, but they usually have a clear definition of what is permitted. In none of those definitions is fanfic given as an accepted usage as they usually cover such things as: research and private study, criticism, review, and news reporting, caricature or parody, illustration for instruction - and even then they usually limit how much of the original you can use and how you use it with proper quotation and referencing.

Even under the US copyright act they cover Fair Use with the following (as per the wikipedia article on it:

1. Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes: Nonprofit educational and noncommercial uses are more likely to be fair use. This does not mean that all nonprofit education and noncommercial uses are fair use or that all commercial uses are not fair. Instead, courts will balance the purpose and character of the use against the other factors below. Additionally, "transformative" uses are more likely to be considered fair. Transformative uses are those that add something new, with a further purpose or different character, and do not substitute for the original use of the work.

2. Nature of the copyrighted work: Using a more creative or imaginative work (such as a novel, movie, or song) is less likely to support fair use than using a factual work (such as a technical article or news item). In addition, use of an unpublished work is less likely to be considered fair.

3. Amount and substantiality of the portion used in relation to the copyrighted work as a whole: Courts look at both the quantity and quality of the copyrighted material that was used. Using a large portion of the copyrighted work is less likely to be fair use. However, courts have occasionally found use of an entire work to be fair use, and in other contexts, using even a small amount of a copyrighted work was determined not to be fair use because the selection was an important part—or the "heart"—of the work.

4. Effect of the use upon the potential market for or value of the copyrighted work: Here, courts review whether, and to what extent, the unlicensed use harms the existing or future market for the copyright owner's original work. In assessing this factor, courts consider whether the use is hurting the current market for the original work (for example, by displacing sales of the original) and/or whether the use could cause substantial harm if it were to become widespread.

There have been a few USA court case on Parody as fair use, and in each case the work was a clear and obvious parody that did not adversely effect the potential market of the original and the parody was very different from the original in marked ways.

What is relevant to this discussion on fanfic in the USA is the case of Anderson v. Stallone -

https://en.wikipedia.org/wiki/Anderson_v._Stallone

The Court determined that the characters from the original movies were afforded copyright protection, using a standard borrowed from Judge Learned Hand in Nichols v. Universal Pictures Corp.. The key to the standard is that copyright protection is afforded when a character is developed with enough specificity to constitute protectable expression.

That's a court judgement defending the established characters and would be applicable to fanfic.

And while US courts will generally enforce foreign court judgements, it is discretionary and there are circumstances where they will not enforce a foreign court judgement.

Regardless of if the US courts uphold a foreign court ruling or not, having that foreign court ruling can cause some major issues for the people involved. One aspect would be to take action against the fanfic site if they don't take the story down due to a Digital Rights claim, even if all they do is get it blocked for access from the UK - that would adversely affect the site due to users and writers in the Uk having to jump hoops to access to site vis VPNs etc.

Fanfiction is fair use as long as the work is "transformative," meaning that the new author added content with new meaning and value to the original work.

Regardless of what rulings have been made in the past, as an author,the idea that transformative fan fiction has more protection than non-transformative seems wrong.

Another author can take my characters and develop them in ways I might not approve of, but is not allowed to write stories that keep them true to my original intentions?

Whoever thought that up was not an author.

AJ

That's not the meaning of 'transformative'.

Consider Harry Potter. If I write a story where Harry Potter (the JKR version of him) goes to Hogwarts for his first year, following the steps of the first book, introducing the other characters, that's not 'transformative'. That's parroting, even if every word is my own and I'm doing it from memory.

On the other hand, if I write a story where Harry Potter has unknown French ancestry and is invited to go to Beauxbatons, that's transformative, because I've taken the story in a different direction.

It has nothing to do with what you approve of. In that regard, it's similar to the parody exception. Many authors hate parodies of their work; nonetheless, that's protected use.

Another sort of transformation is form. Amazon routinely creates 'snippets' of text from books - an entire page, etc. Courts have explicitly declared that to be legal under fair use because the work is transformative (written page to searchable electronic text) and because the market for the original work is not diminished, notwithstanding that the authors and publishers don't like it (they were the ones suing) and it directly copies the work without permission for commercial purposes.

On the other hand, if I write a story where Harry Potter has unknown French ancestry and is invited to go to Beauxbatons, that's transformative, because I've taken the story in a different direction.

On the contrary, that's exactly what I meant. If JKR has an unpublished backstory for Harry Potter in which he couldn't possibly have French ancestry, the 'transformative' story has queered her pitch.

JKR might prefer to have you parrot Harry Potter's first year from memory because it leaves her universe consistent.

AJ

My point (albeit in a different posting) is that that doesn't matter in the least. I could write the same thesis in a message-board posting anywhere, not in story form, and it would unquestionably be legal commentary / criticism. There's no difference in how much either would affect her future work. That's not a strike against fanfiction, it's a strike against readers or critics being allowed to write supposition about a story in any way.

And it honestly doesn't matter at all what JKR would prefer; the legal status of a transformative work is stronger than that of a non-transformative work, at least in the United States.

It's of course also the case that there's little readership interest in fanfiction that regurgitates what readers already know; the interesting parts are changing the characters or putting them into new and/or different situations.

My point, which you appear to be missing, is that current law doesn't necessarily reflect authors' preferences.

AJ

That's true (though I seem to recall at least one case, maybe earlier on, where he didn't obtain permission - can't find the cite for it now, though, so it may be incorrect).

Simply crediting and sharing isn't enough, though - he gets permission.

There are a large number of other parody songwriters who do not get permission nor share royalties, however.

That's true (though I seem to recall at least one case, maybe earlier on, where he didn't obtain permission - can't find the cite for it now, though, so it may be incorrect).

It's the case with Coolio and Amish Paradise I mentioned in the 'Fifteen seconds of music' thread:

Coolio objected to Amish Paradise, but as Weird Al had secured the necessary rights, Coolio couldn't stop it. Yankovic wrote an apology letter, but it was never acknowledged. And, as Yankovic noted, Coolio didn't complain about the royalties he received.

Coolio, much later, expressed regret for his initial response (objecting) saying that it made him look dumb because Weird Al had parodied Michael Jackson and Prince.

I think you missed the point. I personally wouldn't call it 'plagiarism' but researchers are expected to show they're aware of the results of previous studies in their field and provide appropriate citations.

AJ

The reason that Rowling and other authors don't generally go after fan fiction authors is because it generally isn't worth the time and money, so long as the work is being posted for free. As soon as a fan fiction author tries to monetize, they tend to get in trouble really quickly. Worse, as soon as you make any money off fan fiction the copyright holder can show real damages, which makes a monetary judgement, as opposed to a cease and desist, a lot easier.

This may be true outside of the US, but it's not true here. The fair use rules around transformative use don't necessarily go away when work becomes commercial (though it's decidedly edgier, at least).

More to the point, while we have no idea if there have (or have not) been out-of-court settlements in the US, we do know there has never been a court decision against fanfiction in the US, with or without a monetary judgement.

While no one is on record on this point (either way), one of the presumed reasons why 'regular' authors don't go after fanfiction is because there are many reasons to believe that courts would rule definitively in favor of noncommercial fanfiction. A ruling showing it was legal would be detrimental to publishers' interests, so they have an incentive to keep it out of the courts. A defendant with deep pockets would likely be the only reason they would go that far.

The few court cases that are relevant have come outside the area of noncommercial written works, and often involve potential significant payoffs.

Note that fair use is a system in which all four elements are examined collectively; it's not enough for something to be transformative, it also has to meet the other standards. Also, transformative in this context doesn't simply mean a new story, there are complex legal definitions in play.

This is not correct. You do not have to meet all four standards in order for something to be fair use. Indeed, Amazon has won 'fair use' rulings for decidedly commercial use specifically by meeting the 'transformative use' criteria.

Yes, all four standards need to be examined. However, you're misunderstanding the 'substantiality' test. The characters themselves are a tiny portion of e.g. Harry Potter. The world is another portion, the plot is another potion. If someone uses e.g. 20% of the characters and 20% of the world, along with 5% of the plot, is that 'substantial'? For that matter, if someone uses 100% of the characters (which are perhaps 5-10% of the work) and 100% of the world (which is perhaps 5-10% of the work), but none of the story, is that 'substantial'?

The answer is that we don't know.

The Star Trek case is interesting but not particularly relevant. The court ruled that it's not transformative (and, indeed, it likely isn't), because it is highly similar to the 'plot' (such as it is) of 'Oh, The Places That You'll Go'. It's a commercial work, and it fails to be parody.

It has very little in common with non-commercial fanfiction, which tends to be highly transformative (e.g. write the same story as 'Harry Potter And The Sorceror's Stone' with the same characters and that's a rip-off, not fanfiction) and wouldn't try to be claimed as parody.

I agree with the comment about findings of fact, with the important caveat that courts do look at similar rulings (otherwise all of these rulings being tossed about would be of no import whatsoever). If a court were to rule that non-commercial transformative fan-fiction was clearly protected, other courts would likely take notice of that.

I agree about zero-sum games. My point is that there is, in general, a strong disincentive for both traditional authors and fanfiction authors to test this in court. If there was a high likelihood that courts would find against fan-fiction, my guess is that some anti-fanfiction author would've bankrolled a challenge in order to get a ruling in place. At 50/50 or less, why would you make that attempt?

One other note: while it doesn't have any legal relevancy in a civil suit, juries would likely find the argument that author X allowed ten thousand fan-fiction stories to remain in place but singled out this work for a suit to be a reason to reject the suit, unless the work were particularly offensive in some way. Of course, if the work actually was particularly offensive in some way, that would play against it setting any form of precedent.

My main point in this discussion is simply to say that people who say that 'fanfiction is theft' or 'fanfiction is illegal' have no legal basis on which to make those claims. There is a very straightforward argument, supported by (non-fanfiction) case law and legal theory, in favor of fanfiction being legal. There is also a straightforward argument in favor of it being illegal. Since no US court has issued a ruling either way, that's as far as we can go at this time.

Nevertheless, there are a relatively limited set of things for which one can say 'X is illegal, but there has never been a successful civil or criminal proceeding against anyone who did X', beyond the sort of laws that show up in 'Weird Law' articles (many of which were successfully prosecuted 'back in the day' but are anachronisms now). The lack of any proceedings is at least indicative that those opposed to fanfiction have relatively little faith that they can win. This is especially noteworthy given that the most notoriously anti-fanfiction authors 1) have very, very deep pockets, 2) in some cases, have corporate patrons who also have very, very deep pockets, and 3) have a plethora of fanfiction authors writing in their 'universes' who aren't even being hit systematically with cease-and-desist letters, much less lawsuits.

You're right; the case is cited as Amazon but primarily involves Google.

Probably more significant is Authors Guild v. Hathitrust, which involves full-text digitization of commercial works (including stories), which found it to be fair use due to it being a transformative use.

While I could agree in principle that:

Nothing in this case supports your claims regarding fan fiction and "transformative use".

it would be equally correct to say that nothing in any case cited so far contradicts my claims about fan fiction and "transformative use". Also, note that they're not particular 'my claims' - there are many people out there making the same claims, many of whom have been making them for years.

As I have repeatedly said, the legal status of fanfiction is unclear. It's possibly not legal, but there are (in my opinion, and in the opinions of the majority of sources I've been able to find, including organizations specifically interested in law and intellectual property) more reasons to believe that it's legal than that it's not legal. However, a court could rule either way, so - if you're writing it - take appropriate caution.

Nevertheless, the lack of even a single ruling against fanfiction in the United States is somewhat telling. Any particular author could be the first one to face such a judgment, but the odds are not at all high.

I said it was an error and not Amazon already. Not sure why you needed to repeat that. That doesn't diminish the value of the cited case to the issue of whether pure-text can fall under the 'transformative work' doctrine - clearly it can.

I completely disagree about your second point. People speculate about the law all the time, and if that speculation is based on knowledge of the law, it absolutely has 'basis in the law'. I suspect that what you actually meant is that it's speculation that doesn't define what the law is or is not (and I can agree with that), but that's completely not what you said.

The citations I've shared, and many others, absolutely have a basis in the law. Speculation with no basis in the law would be 'I think fanfiction is legal because I like it and no court would slap me down for something so silly.' Speculation with a basis in the law looks like 'I think fanfiction is legal because it meets at least two of the standards for fair use and because relatively similar cases have been decided in ways that would make fanfiction legal if a hypothetical case were decided on the same basis'.

Every novel court verdict starts with a situation in which no one knows what the law 'is'. That doesn't mean that lawyers go into court based on 'pure speculation with exactly zero basis in the law'.

Or, flipping it around, the same argument applies in reverse, and one can say that everyone (author, publisher, fan, whatever) who says that fanfiction is not legal is engaging in 'pure speculation with exactly zero basis in the law'. If that's your standard, I'm fine with it - I've said repeatedly that we cannot know how a court would rule.

Note: I am not claiming that fan fiction is definitely not fair use. I am claiming no one knows the answer.

To be an author of fan fiction and to act as if the answer to the fan fiction fair use question is certain is extremely foolish.

We agree on those points. One should know what one is getting into.

On another note, I don't think claims about fan fiction and fair use have anything to do with why no one has brought a case against fan fiction to court.

We disagree on this point. There are some authors who have deep pockets, could easily fund a case, couldn't care less how much they recover in a judgment, and would absolutely love a precedent against fanfiction, yet they've never sued either. My guess is that it's because they know they have solid chance of losing (not that losing is in any way a foregone conclusion - just that losing would be a major self-inflicted blow).

To the best of my knowledge, Disney's many cease-and-desists (how many is highly unclear) have related to the use of their artwork without licensing. I can't find a case where they went after fan-art (though I'd certainly believe it), nor a case where they went after fanfiction.

It's trivially easy to find Disney fanfiction and fan-art on a number of stable, relatively high-profile websites, so either they don't have any interest in stifling it or they're not all that prolific.

In the case of unlicensed use of artwork (without transformation, for commercial purposes, without parody, etc) - which are the only cases I could quickly find - of course people have caved. There's not much of a defense for doing that.

Decades ago (before they expanded beyond G rated fairy tales), I read about Disney going after fan-art and fanfiction, generally cases where their children centric properties were being used for erotic art or stories.

Yet he had no valid legal case as the great majority of the stories he was up in arms about were already in the public domain and he had no legal control over them. He does have legal control of most of the images for his fairy tale story characters but not their names or the stories themselves.

That's an interesting point. It's also relevant to the question of how much fear any individual fanfiction author should face, since the odds of them winding up in court are vanishingly small, based on the evidence to date.

Again, that doesn't matter if you're the unlucky one, and it's by no means a guarantee, but it is one important consideration.

That's an interesting point. It's also relevant to the question of how much fear any individual fanfiction author should face, since the odds of them winding up in court are vanishingly small, based on the evidence to date.

Depends on what it is that's being looked at. Yes, fanfic is mostly a copyright violation and that is dealt with under the relevant copyright laws. However, in some cases you also run into trademark violations due to the authors or those controlling the copyright also registering things as trademarks, and that's a very different set of laws, especially in the US. Where it may be harder to push a fanfic copyright violation in court and not worth the trouble of the copyright owner to take to court, should they also have registered the violated item as a trademark then they can not afford not to take it to court as under US law failure to defend means the lost of the trademark.

The crossover with trademarks is more likely to occur where something has become a franchise instead of just a printed story.

Later, his publisher, Ace books, commissioned two sequels, Fuzzy Bones (1981) and Golden Dreams (1982).

They would very likely be works approved by the heir who had control of his copyrights and thus not qualify as fanfic.

In the US, there is a substantial possibility that the publisher had control/ownership of the copyrights in question.

While the publisher would have control of the copyright for the actual published books, that does not give them automatic control of the characters. However, the type of contract they had with the author may give them such control, or he may have given it to them in his will.

Actually, if the publisher outright owns the copyright (which from what I've read, is something publishers in the US used to demand from less well known/popular authors), yes it would.

As I said, it would depend on the contract and what rights were assigned as the basic publishing contracts do not give the publisher the copyright control of the characters or the world in the stories, but some special clauses may be included and agreed to that do give such control.

A classic example is the story that was specially Sherlock Holmes story written for Doyle's visit to the USA that was first published in the USA gave them control of that story as per the US copyright laws it did not give them any rights to the characters or the other stories which all came under the UK copyright laws due to them being first published there. Neither the UK nor the US publishers had copyright control of the characters after Doyle died as their publishing contracts didn't allow for that, but he had terms in his will that gave copyright control to certain people.

Actually, if the publisher outright owns the copyright (which from what I've read, is something publishers in the US used to demand from less well known/popular authors), yes it would.

This was once very common in almost all forms of media. That is how Walt Disney lost the control of his first "star", Oswald.

And it even reached into the modern era, as EA was (in)famous for putting such into their contracts. That is how Interplay lost the rights to their 1988 nuclear apocalypse game "Wasteland". Which 9 years later they completely reworked and visited again as "Fallout".