Post this at GIH. Someone will know. I just don't remember who it is.

Isnt it strange to complain about intellectual property that has been lifted from lifted intellectual property? Ironic.

I don't see it that way.

First, if you're referring to copyright, I share the view of the Organization for Transformative Works, and most academic and legal thought on the subject of fanworks, that such works fall within the United States' doctrine of "fair use." From the OTW:

Copyright is intended to protect the creator's right to profit from her work for a period of time to encourage creative endeavor and the widespread sharing of knowledge. But this does not preclude the right of others to respond to the original work, either with critical commentary, parody, or, we believe, transformative works.

In the United States, copyright is limited by the fair use doctrine. The legal case of Campbell v. Acuff-Rose held that transformative uses receive special consideration in fair use analysis. For those interested in reading in-depth legal analysis, more information can be found on the Fanlore Legal Analysis page.

I assert that I have a legal right to respond to original works with a transformative work of my own. I further assert that such response is itself a form of commentary and critique, a view upheld in a recent court case examining the rights of fan vidders.

Even authors with essentially limitless funding such as JK Rowling have not chosen to pursue legal remedies against fanfiction (assuming she would want to -- I don't know, I am not in that fandom and have not read her books) -- for the very reason that such claims are almost certain to fail in court, and their attorneys advise them not to let a precedent be set that might weaken their copyright claims on their works in other ways.

Those who do assert claims against fanfiction do so on the basis of "I don't like it, so don't do it," (eg, Anne Rice), or on the basis not of copyright but of trademark (eg, Archie comics).

The characters and settings of Queer as Folk have not been trademarked, so that's a non-issue here.

I really suggest you take a look at the Fanlore Legal Analysis page linked above to get a better grounding in the issue of fanworks and copyright.

However, even if none of that were true, I have to point out that many fandoms explicitly permit the creation of fanworks, while even more implicitly do so.

In the Queer as Folk fandom, the creators of the show have many times publicly acknowledged they are aware of fanfiction about QAF, even mentioning it in the "extras" for one of their DVD sets, and yet have never done anything at all to discourage it, let alone sued to enforce their copyright, in over 11 years since the series launched. It would be legally very problematic for them to try to do so now.

Last, I did not assert a copyright claim in asking for the identity of the owner of the site. I am at this time making a fandom etiquette claim, ie, that it's rude to archive someone's work without her or his permission. Fandom culture is based on what's been dubbed a "gift economy," wherein fanwork creators give their works to the fandom and in return receive comments, kudos, hits, or, to put it in other terms, appreciation.

It is a violation of that relationship to reproduce someone's work without their permission.

There are times when someone has vanished from the fandom and fans attempt to preserve their fanworks by archiving them or sharing them via email or download sites, and there are arguments to be made about the fairness of that on either side.

But that is not the case here. I'm still in fandom, I'm easily reached, all my works are archived in my journals and on the OTW's Archive of Our Own archive, and there is no justification to take my story and reproduce it on your site (if you are the site owner, as I'm assuming from your anonymous posting status, but if I'm incorrect, I apologize).

Xie



Edited 2011-10-25 02:38 pm (UTC)

And also: isn't it just general good manners to ask first?

QAF seems pretty bad about reposting authors' work. I've found my fics (or entire geocities site content) on websites and LJ comms available for download and I have never been asked for any sort of permission - nor would I have granted it. It's a shame, really.