Legality of fanfic auctions
May 8, 2010 11:28 AM   Subscribe

Can anyone point me to legal articles or cases relevant to fanfic auctions where the proceeds go to a third party? To what extent are such auctions considered 'selling'?

In the case of people auctioning off fanfic in exchange for donations to a third party (either a charity or other entity), is it no longer considered 'selling' (and thus not comparable to selling it on ebay and taking the proceeds for yourself)? Or is it still considered a form of selling? Also, does whether it is or is not considered a form of selling depend on whether it is done for charitable purposes, or to benefit a for-profit group?
posted by anonymous to Law & Government (6 answers total)
Fanfic is illegal anyway. It violates copyright. It's just that a lot of holders of intellectual propertly (Like CBS and Paramount when it comes to Star Trek) turn a blind eye to people simply posting their Slash fic and Enterprise/TARDIS crossovers because it doesn't make money.

So what I'm saying is that the law (and IANAL) doesn't make any difference between posting and selling. Selling doesn't make the infringement illegal, it's making it public in the first place.

Bottom line: it's up to the owners of the IP if they want you to stop. First they'll have to notice it, then they'll have to send a cease and desist. The whole charity angle is irrelevant...except that it may stay the hand of an IP owner on the fence (not that it would deter most lawyers).
posted by inturnaround at 12:55 PM on May 8, 2010

The selling would create infinitely more problems for you than posting it on a fanfic site for free, but yes, technically its very existence violates copyright.
posted by peanut_mcgillicuty at 1:25 PM on May 8, 2010

Is this about the recent FPP regarding Diana Galbaldon's (author of Outlander series) take on fanfic? In the blog post, Ms. Galbaldon describes a situation in which an individual is planning to auction off an as-yet unwritten piece of fanfic combining an Outlander character and a Twilight (I think) character with the proceeds to go to a friend's cancer treatment.

As stated above, fanfic is illegal, but generally authors put up with it. Ms. Galbaldon doesn't sound like she is willing to put up with it.
posted by arnicae at 1:28 PM on May 8, 2010

Fanfiction is not actually illegal, and does not violate copyright. It falls under "fair use" -- but that only extends to works that are non-commercial and transformative. Almost any fanfic can be argued to be transformative, but non-commercial means no one is making money off it. Even if the money is going to a charity, that's still making money, and once that happens, the laws are on the side of the original creator(s) or whomever holds the copyright(s) or trademark(s).

You can check out the Organization for Transformative Works for more info; here is the "legal" section of their FAQ. They have at least one or two lawyers on their board who'd probably be willing to give you some advice or point you in the right direction if you are bound and determined to auction off your fanfic.

(I will say that despite its dubious legality, auctioning off fanfic for charity actually happens quite a lot, and most people seem to encourage it or turn a blind eye. I'm thinking specifically here of the LiveJournal community Help_Haiti, and the huge amount of money the LJ comm ONTD_AI has raised for various charities by auctioning fanworks.)
posted by shamash at 2:34 PM on May 8, 2010

Fanfic is illegal anyway. It violates copyright.

No, it's not, and no, it doesn't -- I second shamash's answer.
posted by Asparagirl at 7:12 PM on May 8, 2010

As stated above, fanfic is illegal, but generally authors put up with it. Ms. Galbaldon doesn't sound like she is willing to put up with it.

Actually, her bullshit problem was that she *didn't believe the money was actually going to a cancer patient,* even though many of us know Stacie and know what she's going through. Once enough people explained the situation to Ms. Galbaldon, she backed off (her second blog post on the subject expounds on this). Mostly, she thought fans were lying about helping a cancer patient so they could rake in the big bucks, like $50 or so each.

(Don't get me started.)
posted by tzikeh at 9:43 PM on May 8, 2010

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