Royalty fee for creating spin-offs?
March 23, 2007 5:15 AM   Subscribe

What are the legal issues and requirements regarding the use of someone else's creative property/material in spin-offs, and fan related projects?

This project is essentially for 3 reasons,

- For fun and enjoyment
- To give something to the fan community
- And to show how much the original creator of the universe has inspired me and many others

The designs and characters we use are our own, but they exist in the world someone else made. ie the same races/species.

How would I go about creating merchandise related to the spin-off that I am creating without violating anyone's rights, and also am likely to be able to do this without the risk of being charged; I'm presuming and daunting that I might have to pay a royalty fee.

Thank you for your time.
posted by Sevenupcan to Media & Arts (20 answers total) 1 user marked this as a favorite
 
As usual in situations like these, the best advice might be to talk to a lawyer.
posted by box at 5:24 AM on March 23, 2007


"Merchandise" sounds like your list of 3 reasons is incomplete. If you are out to make money based on copyrighted materials, you should *definitely* talk to a lawyer.
posted by DU at 5:29 AM on March 23, 2007


Ignoring the (many!) legal issues, you have an ethical duty to ask the creator for permission to use its creative property. If the creator doesn't want you to spin off stories from what it created, you have to respect that and move along.
posted by backupjesus at 5:51 AM on March 23, 2007


Best answer: Besides getting the owner of the original property to license your spin-off, which isn't going to happen, The only way you can do this is to make merchandise featuring your original characters only, with absolutely NO reference of any kind (down to uniforms and props) of the original universe. If nobody wants shirts with your Mary Sue in street clothes instead of a Gryffindor tie, so be it.

And I'd treat this fantastically carefully if I were you- the number one, regularly spoken, never-wavering rule in fandom is "we don't make money off of this stuff." Enjoy this very brief retrospective of tryin' to sell fanfic wank from the Fandom Wank Wiki.

Yes, this applies to merchandise. Yes, really. It does.
posted by headspace at 5:55 AM on March 23, 2007


I say that if the original property is old enough and popular enough that you should go ahead and do it. The original creator stole from the public to create the property(ie. Star Wars inspired by basically all mythology). At some point, it is part of the public mythology and should be contributed back to the public(you).
posted by CrazyJoel at 6:04 AM on March 23, 2007


This would be a derivative work, which unless it falls into fair use (which it sounds like it would not) does infringe on the original creator's copyrights. So you would need permission.

Note that this is not always impossible to get: the Lucas empire gave permission for MIT's Musical Theater Guild to put on the Star Wars: Musical Edition.
posted by raf at 6:06 AM on March 23, 2007


(IAAL, but I am not your lawyer. This os not legal advice.)
posted by raf at 6:07 AM on March 23, 2007


The original creator stole from the public to create the property(ie. Star Wars inspired by basically all mythology).

By this argument, Casablanca is up for grabs1 since the original creator stole from the public ("boy meets girl") to create it.

1Casablanca may or may not actually be up for grabs--my point remains.
posted by DU at 6:13 AM on March 23, 2007


Response by poster: Thank you for your advice and suggestions. I guess because I am only doing this as a interest I should probably keep it profit free, or maybe not bother at all if it is going to be this much trouble.

I did contact the original creator a while ago however the only and limited response I got was along the lines of "We are eager to see what our fans think of our work and are always interested in what our fans create. Feel free to send us your work."

Also selling merchandise does mean I will be making money, not enough to live off, but maybe pay a few bills. But initially the projected was created for fun, I just wanted to take it even further with badges and t-shirts.

I understand that this is huge legal territory and my intentions are in no way malicious.

After reading the wiki link that headspace referenced I was surprised to see (comercial) spin-offs and fanfic frowned upon. I can understand why in some cases this would be, especially if they used the same characters and even renaming them; but I would never dream of not giving credit to the original author. I know this doesn't really help when it comes down to business, but I'm just stating I would never dream of doing any detrimental to the company or original creator.

How do projects like Torchwood (spinn-off of Dr Who) and numerous super hero (say spiderman or superman) merchandise make it into the world of commercial/public domain?

Now that I have a clearer idea about my spin-off I will contact the company again and see what they say. The company is Oddwolrd Inhabitants by the way, and I fear that because they have left their Oddworld games for now and working on an movie unrelated to the Oddword series, called Citizen Siege; that they will be hesitant to reply.

Thanks again, much appreciated.
posted by Sevenupcan at 6:45 AM on March 23, 2007


This didn't sound so bad until you mentioned merchandise. If you are just riffing on the idea for fun and to laud the original they would probably leave you alone even if you step over the line into infringment. However, once you start making money on it they will take notice, and that act also reduces the chance that you use will be found to be fair use. Before you go investing money in this you should get a copyright lawyer to look at all the facts and give you an opinion. I am feeling that you are going to be disappointed in what he or she will have to say.
posted by caddis at 6:51 AM on March 23, 2007


I was surprised to see (comercial) spin-offs and fanfic frowned upon.

It is just a wiki, you know. Some guy said it was "frowned upon", and nobody has edited it yet. But, that just addresses the opinion of individuals reacting to that kind of work. In terms of intellectual property and the law, there are many issues that will make your project difficult.

How do projects like Torchwood (spinn-off of Dr Who) and numerous super hero (say spiderman or superman) merchandise make it into the world of commercial/public domain?

Big gobs of money, of course.
posted by Chuckles at 7:00 AM on March 23, 2007


Best answer: CrazyJoel's weak argument will not stand up in court. If you're using anyone's trademarked characters / quotes / images / music / etc for "merchandise" (that is, for sale), you are treading on dangerous territory. (Of course, any basic storyline has already been written, and the Star Wars intellectual property does not really include the basic plot outline, but rather the images, specific names and so on. Try as you might, you will find no characters named R2D2 or Darth Vader with their specific physical attributes in any mythology. That's what the copyright is protecting, not the "idea" of one man's incredible journey or whatever. You're welcome to steal that idea. CrazyJoel is correct in that if material is old enough you can use it, but for most things it would have to be 75 years or so old to have had its copyright lapse.)

Even if the originator didn't really care, they are essentially required to enforce their copyright in order not to lose it. That's why Coca-Cola sends nasty letters to journalists who use the word "coke" to describe a soft drink. Corporations can and do lose the right to their exclusive use of products, images (etc) because they do not scrupulously fight to protect them from entering the public domain.

Most "known" creative property is difficult to obtain a license for, unless you're a big fish. Business entities would rather handle the merchandizing themselves; it's too tough to watch over and police the little guys.

But in your case, you'll need even more luck, since you're talking about altering the 'universe' someone owns by *adding* characters and whatnot. That's extreme loss of creative control - they'll never go for it.

I like your three reasons, and if you were doing it solely for that, I'd say go ahead - the worst that will happen would be a letter to cease and desist. (And of course, some creators and copyright owners correctly perceive strictly FREE fan creations as being good advertising or pleasant flattery and slyly let it go by the wayside without much fuss.) But if money is changing hands, even at no profit, don't even try it. It will almost certainly end up costing you.

The only exception would be something very obscure, where you could work out a handshake deal if, for instance, the originator could be contacted and was a mellow person. But if it's a truly popular thing (like a TV series, motion picture, well-distributed comic or something like that), it'll never happen.
posted by Dee Xtrovert at 7:00 AM on March 23, 2007


I just read that it's Oddworld Inhabitants. I'm sure it would be a cool project, but that's fairly well-known, so I'd be astonished if it would happen. But your comment . . .

I did contact the original creator a while ago however the only and limited response I got was along the lines of "We are eager to see what our fans think of our work and are always interested in what our fans create. Feel free to send us your work."

. . . still probably means that they would not license any rights TO you. However, some smallish companies like that may like what they see and license something FROM you. They may also swipe your ideas, if they're not specific enough! Oddworld Inhabitants seem to be one guy's vision, so it's still unlikely they'd curry involvement. But you never know.
posted by Dee Xtrovert at 7:06 AM on March 23, 2007


Mercedes Lackey riffs on the original author's perspective in her FAQ:
A: Thought you could use another short missive from me on the subject. Copyright, fair use, and complications far beyond the ken of mortal man....

Ah, the Internet! What a wonderful tool it can be! And oh, the innumerable cans'o'worms it's opened up for those of us who make our living entertaining people.

Let's journey back in time to a point BI (Before Internet), when all that a wordsmith had to worry about was Stuff On Paper.

Mind you, even then, there were problems. People who literally printed thousands and hundreds of thousands of copies of pirated editions of books, without the author's permission, contracts, or payment, sometimes editing to suit themselves, sometimes printing entire bogus books under the author's name. That's still a problem in third-world countries where Internet access is severely restricted---for instance, at this veru moment, a bogus Harry Potter book is being sold in China! This sort of thing cost authors money---and sometimes, reputations. Charles Dickens, for instance, once reckoned that if it he'd been paid for all the pirated editions of his work that were sold in the US (yes, US publishers were some of the worst about this), he'd have been able to make a good living without having to resort to the long and grueling lecture tours through which he supported himself and his family (and which probably shortened his life). Tolkien's reputation as a fantacist was nearly undermined by an abbreviated pirate edition of Lord of the Rings, also in the US.

But in the days of BI, for the most part, fan "use" of an author's work was not a lot to fret over. Fact is, it's expensive and tedious to print out and distribute derivative fiction. A fanfic novel had to cost as much or more than a mass-market hardback, and it was printed on clumsy letter-size paper and bound (if at all) in report-covers. There was the mailing to deal with, or getting to conventions to sell it at your dealers' table. It was also a lot easier to make sure that things of---an "adult" nature, such as "slash" fiction---didn't get in the hands of 14-year-olds.

As for games, well---you could tailor whatever you wanted out of whatever worlds you cared to for paper RPGs for yourself or your friends, but printing modules meant you ran into the same problems as fanfiction. Computer games? Didn't exist, or at least, not in any form that adapted well to gaming.

So authors generally (with a few exceptions) generally gave fans the all clear to do what they wanted to. It wouldn't hurt their sales, their reputations, or cause any real legal ramifications.

The first fly in the ointment directly in our field happened to Marion Zimmer Bradley, after the wild success of MISTS OF AVALON, when a (former) fan threatened to sue her for her adaptation of an idea the fan had come up with for a Lew Alton Darkover novel. The situation rapidly involved lawyers and got expensive, and in the end, no one won (except the lawyers) since MZB elected to scuttle the novel altogether, and the fan got nothing but a bad metaphorical black eye. At that point, agents and authors began looking at the concept of fanfiction with a more critical eye. Some agents elected to try and eliminate it altogether; most cautioned authors against giving permission for it. This, by the way, is why I do not, and will not, read any fiction sent to me unsolicited, nor any "story ideas."

Ah but now, 2002 AI...oh, how different things are.

Authors of fanfic no longer have those pesky printing and distribution problems---just write and post, and make sure you list your stuff with the search engines! Coding games may not be a breeze, but it's a whole lot easier and within six months or less you can have a MUD, MUSH, or online RPG going, and as big an audience as size. bandwidth, and interest permit.

OK, it's not very likely that fanfiction is going to cut into an author's sales, but now the opportunity for a lawsuit is expanded far beyond what it ever was in MZB's case---how can a writer prove she DIDN'T happen across the story online???

And as for the new opportunities to ruin a reputation---upstream in the "Ask Misty" section, you may find a question I just fielded from a youngster, asking if it was true that I had written a book with a bestiality scene in it! There was enough detail in the question to make me think that SOMEONE out there had written "that book" and had posted it online! There are already a lot of things being attributed directly to my authorship being posted online that I had nothing to do with---

There is no control over fanfiction with adult themes being restricted to age-appropriate readers. If Motley Crue can be sued by the parents of a suicidal teenager over something that was alleged to be in their songs---not the lyrics, but supposedly "masked" or "secret" messages!---it doesn't take a leap of imagination to see that parents of a youngster who find "adult-themed" Valdemar fanfic on his or her computer could decide, not to sue the author (who might be anonymous) but sue me instead (especially if some idiot decided to put MY name on it instead of his/her own). Yes, the case would be dismissed, but it would still cost time (fewer books for you) and money (belt-tightening for me).

The same holds true, only more so, for online RPGs, MUSHs, MUDs....I haven't yet heard of a single one of these things where people didn't start using it for adult purposes---and the problem is that short of getting the site blacklisted on Parental Control software, there's no kind of policing going on---the game creators I've seen don't have the time or the inclination. I'm not sure how many of my readers are under 18 (sorry, folks, but that's the legal-definition cutoff, not mine), but there's a lot of them. And oh, brother, would a Valdemar-themed place be a prime cruising-ground for a pedophile! Who would be sued, if something went horribly wrong? Who would the lawyers look for, who has money? Better believe it would be us. More time, more money, flying out the door, never to return.

I know none of this occurs to any of you when you want to do something to let you live in my creation a little longer. I know the real fans would never, ever do anything to hurt us. But these are things that a creator has to think about these days when making decisions about what she or he has created, because there are greedy people out there, with no thoughts other than to profit, profit, profit, whatever it takes. As Larry has said, "Greed kills cool things." All we're trying to do is to protect ourselves and our work so it doesn't get killed by the greed of others.
posted by alms at 7:06 AM on March 23, 2007


Even if the originator didn't really care, they are essentially required to enforce their copyright in order not to lose it. That's why Coca-Cola sends nasty letters to journalists who use the word "coke" to describe a soft drink.

That's trademark, not copyright. Copyright is maintained even if not consistently defended. Trademarks may be lost if not defended (vis: trampoline, zipper, cellophane, etc.)

To the OP: your question asks, at its core, "will I get into trouble for selling something that I don't own?" The answer is "Pretty likely, yes."

The designs and characters we use are our own

Even if they're entirely new characters created as part of a derivative work, then they may not be, should you get sued.

You need to talk with them and negotiate a licensing arrangement. This will not be inexpensive. You will need a lawyer.
posted by solid-one-love at 8:23 AM on March 23, 2007


...I should probably keep it profit free...

Also selling merchandise does mean I will be making money, not enough to live off, but maybe pay a few bills.

The property's owner doesn't care if you lose money on the sales of the merchandise or only make enough to cover production costs. Profit or loss not the issue. The issue is the unauthorized use of his or her intellectual property (IP).

Here's an excerpt from a 2005 interview with Lorne Lanning, co-creator of Oddworld,
"To this day, we own every IP we've ever created, as well as all the publishing rights -- licensing, merchandising, game publishing, TV, and film. It wasn't easy but, because we did it from day one, it set a precedent and we were able to sustain those terms through the different deals we did."
Lanning is not unaware of what he's doing and what his rights are. Definitely contact them with a proposal.
posted by jamaro at 9:18 AM on March 23, 2007


Best answer: Even if the originator didn't really care, they are essentially required to enforce their copyright in order not to lose it.

As mentioned, this is for trademarks only. On top of that, it would be easy enough to draw up limited use licenses for fans.. Something like:
  1. You may use the trademark, under the stated restrictions.
  2. You are creating derivative works. No use of original material is authorized in any form. (since the license can be revoked any time, it doesn't really matter if this term is legally enforceable :P It is just included as guidance.)
  3. You may not advertise your product as official, and any mention of this authorization agreement must be for information purposes only.
  4. You give us perpetual license to create derivative works from works you created under this agreement. (by which I mean, not direct use of actual works, but plot lines, character designs, etc. It should be easy enough to write appropriate legalese)
  5. We reserve the right to revoke this agreement at any time, and at our sole discretion.
Then you only give out a few every year (or a few hundred, if it is something huge), to avoid dilution. If some bit of fan creation is really great you can make a mutually beneficial profit making agreement, or pull the plug, as you see fit.

There is a small problem, in the case of claiming perpetual license but revoking the agreement, because there must be Consideration. It seems like something that could be worked out to me..

Alas..
posted by Chuckles at 9:47 AM on March 23, 2007


Response by poster:
The property's owner doesn't care if you lose money on the sales of the merchandise or only make enough to cover production costs. Profit or loss not the issue. The issue is the unauthorized use of his or her intellectual property (IP).

This is understandable, I mean it's their creation, of course they should be made aware of what it is you intend to use of their intellectual property. But where do you draw the line? I read a question on a similar community where a parent was helping out with a play for her child's school that involved Disney characters and didn't charge any admission or make any profit. So they did the responsible thing and contacted Disney for their permission, for which they still had to pay $700-800.

But I will adhear to the cautions. Thank you for everyone's comments. Who knows maybe in the future there will be a service similar to CreativeCommons that helps fan authors create fanfiction without violating the original author of the work.
posted by Sevenupcan at 12:22 PM on March 23, 2007


This really depends on the fandom, though. Mercedes Lackey (like Anne Rice and Disney) is notorious for being unfriendly towards fandom and fanwork. J.K. Rowling doesn't mind; she visits fansites very often and supports them. My own fandom (for a music TV station) LOVED the fan attention, read the fanfics, got involved, even gave me a job!

Fandom Wank, while seeming silly, is actually a good place to gauge fandom reaction. I'm not entirely sure about your fandom, though I do see how anything involving money can be tricky.
posted by divabat at 4:47 PM on March 23, 2007


Response by poster: Thanks again for all your replies. Here's a really useful page I found regarding fan fiction. It's certainly not black and white, but certainly an area to take caution in.
posted by Sevenupcan at 9:14 AM on March 24, 2007


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