In the thread Whither fanon?
Nom de Plume writes:
Whether or not much of fanon is a derivative work is arguable. Most of the fanon material is either adventures or settings rendered in the style of publication that are consistent with the published works of CGI and Kelestia.com. While they are set in HarnWorld, consistent with the history of the published material, and may reference harnic names, places, and things, they are largely original works. Thus the copyrights may actually reside with the actual authors rather than with NRC and CGI. Most authors have historically acknowledged NRC as the creator of Harn and CGI as a publisher of the material and holder of several trade marks.
This is a point worth stressing. A derivative work transforms the whole of another work (or parts of it) into a new work. If the "original" is in fact not a work, then there is (obviously) no derivative work, only a new original work. The key issue then becomes what constitutes a work. The problem is that this question is not
answered the same across the world.
In the U.S. any original (subjectively speaking) product of someone's creativity (and the creativity requirement is quite modest) is a work of authorship. In Europe (excluding the U.K. and Ireland) the originality requirement is commonly held to be stricter. One fairly useful definition of the European originality requirement is: "if an expression is so original, that the probability that two persons, independently of each other, could create the same or similar expression is minimal, then the expression is subject to copyright protection". This "double-creation" criteria rules out copyright protection for most functional texts, such as source code procedures and functions; news messages; recipes; descriptions of methods, rules of games and algorithms; and user manuals.
Facts, ideas, thoughts, the style or manner of writing, painting, etc are also universally held to be non copyrightable. While there are no qualitative or quantitative requirements for a work to be copyrightable, it's commonly held that words (regardless of whether they are real or made up) are not copyrightable. While concepts might be copyrightable in the U.S., concepts have a very weak protection under European copyright law; there has been an on-going discussion over the last thirty years on the subject of copyright protection of television show formats. It's now held that such formats are only copyrightable if they are very detailed.
The Harn setting is most likley copyrightable in the U.S. and it might be copyrightable in Europe as well, but given that there are a huge number of FRPG settings that share the basic characteristics of Harn (i.e. a setting with strong medieval influences, many different religions, magic, monsters, and mysterious ancients) the scope of the copyright protection of the concept "Harn" is probably quite narrow. If another company creates and markets a low-fantasy, nitty-gritty, setting in the same vein as Harn and it would be precived by either NRC or CGI as to simmilar, then it would probably be easier to attack it on market law grounds rather than based on copyright infringement.
It must also be pointed out that a work inspired by another work is not
a derivative work. As a side note, you need no permission to create a derivative work in Europe (as you do in the U.S.), you do need permission to publish it.
Most fanons are based on facts drawn from the works published by CGI and NRC, these facts are no more copyrightable than "real" facts. The names of manors and cities, the population figures, etc. are no works on their own and therefore works that are based on those facts or names cannot be derivative works.
If we draw the conclusion that most fanon works are in fact no derivatives of works of NCR and/or CGI at all, then this entire debate needs to shift focus. The creators of fanon are not doing anything wrong, they could (and should) continue producing the great works they have produced over the years. They don’t need include any one else but themselves in their copyright notices. The may of course acknowledge NRC and CGI as sources of inspiration.
Nom de Plume then continues:
Whether or not much of fanon is fair use is also arguable. HarnWorld by design was created so that the end user could create his or her own adventures in the setting by filling in the details and sharing it with other players. As there were no rule sets originally published with the game, there are no prohibitions regarding how one is to go about creating said adventures and sharing them with ones fellows.
Fair use is only relevant when you use someone else's expressions. If you create your own original expressions, inspired by someone else, then it's not fair use, you are creating new expressions. The rules of fair use are different across the globe; it's debatable whether Europe or the U.S. has the more liberal set of rules, personally I think the European model is the better one.