Whoosh! Issue 25 - October 1998


IAXS project #195
By A.T. Lee
Copyright © 1998 held by author
6421 words

Author's Note: This article is for educational purposes only. It is a brief overview of copyright issues that fan fiction writers in the United States of America may find useful. While all information in this article is believed to be correct at the time of writing, it does not purport to cover all aspects of copyright, and may not be construed as legal advice. If you require legal advice, you should consult with a legal practitioner licensed to practice in your jurisdiction. There may be not-for-profit legal services available to creative artists in your area. This article is provided as is without any express or implied warranty.

Further information on U.S. copyright laws may be obtained online from the United States Copyright Office. In addition, information on selected countries' copyright laws may be obtained from the following internet sites:

The European Union

All fan fictions in this article are used with the authors' expressed permission.

If you have any questions, corrections, or suggestions for improvement to this article, please forward them to one of the following addresses, in order of preference:


Alright, let's get on with the show, shall we? Hope you are ready for more legal mumbo jumbo!!

Part 1 - Copyright Basics

1.1)    What maniacal rules are in effect?
1.2)    Just what in Tartarus is a copyright?
1.3)    Are my fics/poems/skits/whatever covered?
1.4)    How can I copyright my work?
1.5)    Do I need to shout from the top of Mt. Olympus in order to provide proper notice?
1.6)    Do I have to register my work with the U.S. Copyright Office? (Oh, the bureaucrats, the horror!)
1.7)    How long does a copyright last?
1.8)    Umm... You see, I'm so very deep in this fanfic writer's closet... What do I do?
Part 2 - The Not-So-Basic Important Stuff
2.1)    What do The Powers That Be own?
2.2)    Wait a minute! Will I incur Themis' wrath now? Can I disclaim all my wrong-doings?
2.3)    Can I hide under the "Fair Use Doctrine" tunic?
2.4)    What kind of punishment would the Furies invoke?
Part 3 - More Important Stuff: What Can I Borrow?
3.1)    There's this nifty song I wanna quote... Is it in the "Public Domain"?
3.2)    Can I use something without permission?
Part 4 - Still More Important Stuff: What Do I Have?
4.1)    What's "Derivative Work"?
4.2)    Just what can a fanfic writer copyright?
4.3)    What makes my partner-in-crime my "Co-author"?
4.4)    I think a descendant of Salmoneus (or Joxer, or both) just stole my brilliant idea! What do I do?
Part 5 - Miscellaneous Stuff
5.1)    Xenaverse is a humongous place, what if I don't live in the U.S.?
5.2)    What are my rights outside the U.S.?
5.3)    I run my own web page, can I link...?

Copyright 101
A Brief Introduction To Copyright For Fan Fiction Writers

Where Pac-Man finally got work

The Library of Congress, where U.S. copyrights are registered, is online at http://www.loc.gov

Part 1 - Copyright Basics

1.1) What maniacal rules are in effect?

  1. The Copyright Act of 1909. Many of the provisions were changed or covered in the Copyright Act of 1976, however, the Copyright Act of 1909 still controls the duration of copyright for certain works published prior to January 1, 1978. (See, 1.7.)

  2. The Copyright Act of 1976. Effective date: January 1, 1978 through March 1, 1989. Much of this is still good law.

  3. The Berne Convention Amendments. Effective date: March 1, 1989 to the present. The Berne Convention Implementation Act amended the Copyright Act of 1976. One of the coolest things about this is that it eliminated the compulsory notice requirement for copies of work distributed to the public.

  4. The Universal Copyright Convention ("U.C.C."). This was created shortly after WWII and imposes fewer substantive standards on member nations than the Berne Convention. Since the U.S. adheres to the Berne Convention, I won't be discussing this.

  5. The GATT Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs). A mouthful, isn't it? Anyway, for our purposes, this aspect is the most important: it restores the copyright of eligible foreign work which had fallen into the U.S. public domain. So, be careful when you quote!! (See, 1.7 & 2.2.)

1.2) Just what in Tartarus is a copyright?

Copyright is a bundle of exclusive intellectual property rights granted to "Authors" for a limited time. A creator of any copyrightable work is an "Author".

In the U.S., copyright is governed by federal law, which derives from the "Copyright Clause" (U.S. Const. Art. 1, sec. 8, cl. 8) of the Constitution. State Common Law also applies, provided the case law doesn't conflict with federal interests, policy or the statute itself.

The bundle of exclusive rights is divisible, can be individually assigned, and includes the following:

Unless the transfer is by operation of law (e.g. passage by intestate succession), all transfers of copyright ownership must be in writing and signed by the transferor.

The transfer of nonexclusive rights doesn't have to be in writing. It is a license and may be oral. Also, once the work is handed over, it becomes an implied grant of license.

1.3) Are my fics/poems/skits/whatever covered?

There are two prerequisites for copyright protection:

1.3.1) Fixation; and
1.3.2) Originality.

In other words, "Original Work" and "Tangible Object" must merge through "Fixation" to produce copyrightable subject matter.

For example, your completed poem (Original Work) in your head is not protected, but if you put that poem on paper (Tangible Object) (act = Fixation), it becomes a protectable Work of Authorship.

Such "Works of Authorship" include literary, musical, dramatic, pictorial, graphic and sound recordings, among others. (Copy. Sec. 102a). So, yeah, your stories, poems, plays, . . . etc. are copyrightable.

1.3.1) Copyright does not protect intangible things. It does not protect any idea, procedure, process, concept, and principle, etc., regardless of how it is described, explained, or illustrated. (Copy. Sec. 102b). For example, Einstein wouldn't have been able to copyright his theory of relativity, even though it was a most brilliant idea, principle and discovery. (But it would be protectable under Patent Law.)

"Fixation" is achieved when a work "can be perceived, reproduced, or otherwise communicated either directly or with the aid of a machine of device". (Copy. Sec. 102a). Courts, when addressing this issue, look at the timing, the degree or the length of the period, and the stability of the work.


1.3.2) "Original Work" here means independent creativity, not originality. It includes anything that's not copied and anything that's independently created. For example, if another poet somehow came up with a poem exactly the same as Keats' "Ode on a Grecian Urn," both she and Keats would be able to copyright her/his work because the poems were both independent creations, thus Original Works.

Novelty is not required. The standard of originality is very low. Also, it's an objective legal standard, which means judges are not supposed to decide what is "original" enough to be considered protectable "art". Instead, the courts look at the following components to decide whether a work is original:

Further, rather than focusing on isolated moments, the judges will look at the total sequence of the work as a whole. The length of the allegedly copied work also matters. For example, stealing one line from a haiku would probably get someone in deeper centaur poop than stealing one bar of music from a three-hour long opera.


1.4) How can I copyright my work?

Copyright is automatically attached to a Work of Authorship (see, Sec. 1.3) as soon as it is created. There's nothing else you'll need to do.

1.5) Do I need to shout from the top of Mt. Olympus in order to provide proper notice?

Nope. Pursuant to the Berne Convention, the U.S. eliminated its long-standing notice requirement.

However, it's still a good idea to include a notice, because, with it, a defendant cannot raise the "innocent infringer" defense to mitigate damages.

There are two types of notices:

The prior is the most commonly accepted form; and the phrase "All Rights Reserved" is not required. The latter is the U.C.C. form.

1.6) Do I have to register my work with the U.S. Copyright Office? (Oh, the bureaucrats, the horror!)

Make sure you don't send 'em form 1040 by mistake!

Copyright registration forms, with instructions, are available online.

Oh, yeah, no kidding! U.S. Copyright law requires certain copyright claimants to register their work before they can file a suit for infringement. Registration is required for works of U.S. or non-Berne Convention countries origin. It's not requisite for those works of other Berne Convention countries origin.

One can register both published and unpublished work at any time during the copyright. For published work, there's also a deposit requirement with the Library of Congress. You will not lose your copyright for failure to deposit the copies, but it is punishable by fine!

Anyway, for procedures, fees and what nots, contact the U.S. Copyright Office.

1.7) How long does a copyright last?

Got your calculators ready? Some of this may seem complicated, but it's very important, especially when it comes to referencing other people's work. Ignorantia juris neminem excusat!

1.7.1) For works created on or after January 1, 1978: Single Author:

Joint work (see, Sec. 4.3):
Collective or derivative work (see, Sec. 4.1): 1.7.2) For works created but not published or not registered before January 1, 1978:

1.7.3) For works already protected by federal copyright on January 1, 1978: 28 year + 28 year non-automatic renewal. However, the 1992 Amendments act provided a 28 year initial term + 47 year additional automatic renewal for works created under the 1909 Act which are less than 28 years old, i.e. post 1964 works.

1.7.4) Foreign works brought back from public domain on January 1, 1996 pursuant to GATT:

1.8) Umm... You see, I'm so very deep in this fanfic writer's "closet"... What do I do?

Heh, you and me both! Here's the deal...

For anonymous or pseudonymous work, the copyright period is 75 years after publication or 100 years after creation, whichever comes first. This is the case even if the general public knows who the real Author actually is.

If the Author later reveals her identity to the Copyright Office, then she can recover life + 50 years. Under normal circumstances, it's probably better to reveal your identity, but that's not always the case.

Oh, if you're simply using a diminutive of your real name, that's not considered a pseudonym.

Part 2 - The Not-So-Basic Important Stuff

2.1) What do "The Powers That Be" own?

Under copyright law, fictitious characters may receive copyright protection, in themselves, apart from the original work in which they were created. To determine whether a character is protected, courts have used the following tests:

2.1.1) "story being told" (9th Cir.); and
2.1.2) "character delineation" (2nd Cir.).

2.1.1) Story being told. If people are watching a show or reading a story because of the characters, then the characters are protectable. Need I say more? Didn't think so.

2.1.2) Character delineation. If characters are stereotypes or stock characters, they are not protectable. Further, the less developed the characters, the less copyright protection they will have. For example, your regular tavern keeper or nameless soldier is not copyrightable.

However, stereotypes which are developed, and drawn in details, are protectable as well. For example, our likeable traveling salesman, and the bungling idiot/comic relief, even though they are stereotypes, they are nonetheless very delineated and recognizable characters.

Regarding Hercules and Xena, The Animated Movie: Visual artists should bear in mind that cartoon characters are protectable also because they are visual and easily recognized.

Moreover, in the case of our favorite warrior, you should know that her name and title are protected by trademark laws as well.

2.2) Wait a minute! Will I incur Themis' wrath now? Can I disclaim all my wrongdoings?

Well, you can't derive your work from someone else's work or copyright her work without her permission. Therefore, technically, all fan fictions, which are derivative works (see, Sec. 4.1), are copyright violations. While many copyright holders turn a blind eye to such works (like our TPTB), they don't have to be so nice about it. In the end, it's completely up to the owner of the copyright to decide whether or not to enforce her rights, and prosecute the infringers. Whether or not she will be successful would depend on the availability of the fair use defense to the infringer. (See, Sec. 2.3).

Meanwhile, it often gets my "legal underwear in a wad" when I see disclaimers that say "infringement not intended". Strictly speaking, for fan fictions, there is infringement and the intention to infringe exists. I'm not sure what kind of disclaimer could exculpate that. You should, however, make it clear that you used the characters without permission, that you made no attempt to copyright those same characters, and that you're not using them for profit.

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