I accessed your post from metablog and thought I'd chime in to say that the position in the UK re fanfiction is pretty similar to the US, although we're in the fortunate position that it's more likely than fanfiction doesn't breach copyright in the UK compared to the US.
I haven't got time to go into detail right now, but can point out a couple of good supporting precedents: In 1859 the adaptation of the play was held to result in the creation of a new work Hatton v Kean and more recently in 1982 it was held that the re-arrangement of a copyrighted piece of music resulted in the creation of a new work Redwood Music v Chappell. It wouldn't take too much effort to argue that fanfiction creates new works, although whether the argument would succeed is a different matter. However, the very fact that there is a potential defence acts as a deterring factor in any action for breach of copyright, as you know.
I agree with you re the enforcement issue. I've sent out numerous letters before action (UK equivalent of C&D letters) in my time, often where the client has no intention of taking things further. However, I do think that we as lawyers don't realise quite how much the non-lawyer/non-experienced litigant fears such a letter. When I've tried to make the point on mailing lists that a lawyer's letter really isn't the end of the world sometimes list members have reacted with almost hysterical denial. It hasn't happened to you, so what do you know etc.
Another factor which is in favour of the UK slasher is the costs rule - loser pays winners costs. But as most fans don't have huge wads of cash, anyone contemplating bringing an action for breach of copyright will need to consider that even if they win not only are damages likely to be nominal but they'll have to pay their own costs because the fanwriter can't afford to recompense them. And should they lose, they'll have to pay the fan's costs and their own. Not exactly an attractive proposition from a business POV.
As for whether a lawyer would be willing to take on a fan's case, when Warner Bros went after a 15 year old British girl who maintained a Harry Potter site (it didn't have any fanfic on it so far as I'm aware), the lawyers who were acting for her wrote to the Law Society Gazette, a publication which is sent to every practising solicitor, appealing for assistance with the case when funds were running low. They were determined to do all that they could to assist the girl and her family in keeping costs as low as possible. Incidentally, in the end Warner Bros settled the action so far as I'm aware. Could the fact that they suffered adverse publicity be something to do with that, I wonder?
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Date: 2002-11-05 03:34 pm (UTC)I haven't got time to go into detail right now, but can point out a couple of good supporting precedents:
In 1859 the adaptation of the play was held to result in the creation of a new work Hatton v Kean and more recently in 1982 it was held that the re-arrangement of a copyrighted piece of music resulted in the creation of a new work Redwood Music v Chappell. It wouldn't take too much effort to argue that fanfiction creates new works, although whether the argument would succeed is a different matter. However, the very fact that there is a potential defence acts as a deterring factor in any action for breach of copyright, as you know.
I agree with you re the enforcement issue. I've sent out numerous letters before action (UK equivalent of C&D letters) in my time, often where the client has no intention of taking things further. However, I do think that we as lawyers don't realise quite how much the non-lawyer/non-experienced litigant fears such a letter. When I've tried to make the point on mailing lists that a lawyer's letter really isn't the end of the world sometimes list members have reacted with almost hysterical denial. It hasn't happened to you, so what do you know etc.
Another factor which is in favour of the UK slasher is the costs rule - loser pays winners costs. But as most fans don't have huge wads of cash, anyone contemplating bringing an action for breach of copyright will need to consider that even if they win not only are damages likely to be nominal but they'll have to pay their own costs because the fanwriter can't afford to recompense them. And should they lose, they'll have to pay the fan's costs and their own. Not exactly an attractive proposition from a business POV.
As for whether a lawyer would be willing to take on a fan's case, when Warner Bros went after a 15 year old British girl who maintained a Harry Potter site (it didn't have any fanfic on it so far as I'm aware), the lawyers who were acting for her wrote to the Law Society Gazette, a publication which is sent to every practising solicitor, appealing for assistance with the case when funds were running low. They were determined to do all that they could to assist the girl and her family in keeping costs as low as possible. Incidentally, in the end Warner Bros settled the action so far as I'm aware. Could the fact that they suffered adverse publicity be something to do with that, I wonder?