In the thread Whither fanon? Nom de Plume writes:


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:


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.


Regards,

Peter Brink

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Peter Brink
Rollspelshörnan

You're posing the question in a legal sense, but let me answer in a pragmatic one. Unless you engage in a Harn-related commercial venture, you have nothing to fear from either NRC or CGI besides perhaps their displeasure. It is not worth their time or money to object, and furthermore you're probably doing them more good than harm.

Fanon creators are ultimately subject only to their own conscience and the judgment and pressure of their peers. Personally, I am too much of a Raskolnikov to do something I deem immoral, let alone illegal, simply because there's no real threat of punishment.

It's sad that this forum has focused so much on the largely irrelevant question of copyright and its effect on fanon. Please, lets get back to discussing the NRC v. CGI question.

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Keith Mann
I really must get around to changing my .sig

Keith Mann wrote:


The legal question helps answer the pragmatic question IMHO, and the moral as well as the ethical one as well.



Why would it be immoral to claim a copyright to your own creation? I do agree that asserting a copyright claim on other's creations, as in fact both NRC and CGI might be doing with their copyright notice requests, is immoral.

The question that needs an answer is: where does NRC's and/or CGI's "sphere of control" (copyright wise) end. When does a fanon author need permission to publish and when does he not?



The contractual obligations of NRC vs. CGI (and vice versa) is not really that much of an issue for fanon creators. The two parties might agree to treat such parts of the Harn product line that are not copyrightable as if they were copyrightable, however that would have no effect on third parties. The agreement between CGI and NRC is separate from the issues related to fanon creation and publication. The fanon creator need only pay attention to copyright law.

What has been agreed upon between two parties in a contract is not something that (normally) can affect a third party. For example, just because A and B agrees that property C should be assigned a nominal value of X, doesn't mean that the bank Y is bound by that agreement, Y is free to do his own evaluation.

Just because CGI and NRC have made an agreement regarding the copyright issues related to the Harn product line, doesn't mean that fanon creator X is bound by that agreement, or even affected by any consequences that agreement may have. X is obliged to do his own evaluation of the situation.

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Peter Brink
Rollspelshörnan

Publish a novel about American magical kids who attend a secret high school for wizards in Texas, and you're fine. Toss in references to Muggles and an exchange student from Hogwarts and see how far you get.

This may well be the correct interpretation, however, from discusion's I've had with attorneys on the matter there is no case law on this specific point in the U.S. or at least what little there is is fuzzy.

If I create and publish a fandom article on a manor outside of Dyrisa in Kanday, and I integrate the facts and knowledge of the Harn Canon material into that manor house, things such as facts relating to Ezar's war, Andisan's scholarly personality and enlightened govornment style, and further entwine facts about the Copper Hook and Checkered Shield have I created a derivative work? I don't know.

If I create and publish a fandom article on a section of Coruscant in the Star Wars universe, and I integrate the facts and knowledge of the movies and books into that section and reference Emperor Palpatine/Darth Sidius his personality etc. Have I created a derivative work? I don't know, but I guarantee you the amply paid lawyers at Lucasarts think so and if I were to publish such I'm sure I'd get a nastygram from them. We have the rights we can enforce.



Fair use is relevant because the issue above is murky. Black's law defines Fair Use as:

A privilege in others than the owner of a copyright to use the copyrighted material in a reasonable manner without the owner's consent, not withstanding the monopoly granted to the owner. To determine whether fair use has been made of copyrighted material, the nature and objects of the selections made, the quantity and value of material used and the extent to which the use may diminish the value of the original work must be considered. ...

Fair use involves a balancing process by which a complex of variables determine whether other interests should override the rights of creators. The Copyright Act explicitly identifies four interests: (1) the purpose and character of the use, including its commercial nature; (2) the nature of the copyrighted work; (3) the proportion that was "taken"; and (4) the economic impact of the "taking".


My point is that if the Lucasarts lawyers are correct and fanon is a derivative work then the Fair use doctrine does apply and Fanon material is clearly fair use and we don't really need CGI or NRC's permission to create Fanon. Given the four balancing criteria:

(1) Fanon is free and therefore non-commercial. The purpose and character of fanon is the sharing and to some degree the promotion of HarnWorld material. As long as attribution and Tradenames are acknowledged, I think this one has to fall to fanon.

(2) The nature of the copyrighted work. An FRPG world is by definition designed to be filled out by GM's. I thnk this also falls to fanon.

(3) The portion "taken". Fanon generally takes only a small portion. Just enough to be consistent with the existing setting and tie things together. Again I think this falls to Fanon.

(4) Commercial impact. I think we've already made clear that fanon has kept HarnWorld alive for the benefit of the commercial publishers (whoever they legally may be).

Of course (1) brings us back to the sticky point of attribution. How does one attribute the material one is including by reference to the appropriate parties (NRC/CGI) when they can't agree on who should be attributed.

Also the issue of trade marks are also factors that should be addressed. These are owned by CGI and have not recieved much discussion. My understanding is as long as you acknowledge the trademark and clearly state that you are making no challenge to the standing of the trademark and are not using it commercially there is no need for permission.

Cautionary note: I am not offering legal advice and one should never take legal advice from a fictional digital pirate and criminal mastermind...

Nom de Plume...

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A war-ferret on both your houses...

You couldn't be more wrong, Paul. Harry Potter is one of the most vigorously defended pieces of intellectual property in the world. Google a bit if you don't believe me. No publisher would touch your hypothetical novel, regardless of their right to do so, because the cost of defending against the inevitable litigation would far outstrip the potential profits. Similarly, if you had in 1980 shown J.K. Rowling a printed short story you wrote about a boy named Harry Potter who discovers he's a wizard, you'd be 100% in the right legally and 100% screwed practically.

My point: copyright is meaningless without the will and the means to defend it. Neither CGI nor NRC have the means and probably lack the will. All this talk of copyright is so many wasted bits.

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Keith Mann
I really must get around to changing my .sig

Unfortunately, this part of the forum got started because of this issue, and the NRC v. CGI question is clearly impacting the creation and publication of fanon.

As a consuming public we don't give a fig about the NRC v. CGI question. We wish they'd settle it for themselves through mediation or arbitration. A court case would take forever and probably kill the whole thing and the "court of public opinion" option is nonsense. The dispute is a contractual argument over a license to copyrighted material, and copyright questions got asked, certain issues were put forth regarding copyright attributions and their impact on fanon. Further, those of us who have declared neutrality were told that to do so and to publish or consume fanon or the other parties materials were thereby abdicating our neutral stance on the matter and were in addition likely criminals for infringing on copyrights...

We're not the ones who stuck fanon into the CGI/NRC dispute/quagmire. We're simply trying to extract it back out and make it clear that CGI and NRC need to resolve this by themselves. We can be supportive in their efforts, help them find a good mediator/arbitrator, etc., but we are not going to solve their problems for them.

Nom de Plume ...

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A war-ferret on both your houses...

While I agree about Harry Potter, I disagree on this point. These bits are not wasted. The message should be clear. CGI/NRC figure this out on your own. We'll help if we can, but leave fanon out of it. If you persist in this nonsense, then fine, we'll ignore you're claims to copyright and ownership, many of which are legally dubious and given your clear inability to defend them and do what we want.

I have half a mind to start a U.K. or Carribean based game company and publish Azeryan Commercially who would stop me?


Nom de Plume
Plunderer of IP

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A war-ferret on both your houses...

Nom de Plume wrote:


The answers to these questions will depend upon a) where you live and b) where you publish your fanon.

If you live in the U.S., you are out of luck. Regardless of where you publish your fanon you are, as far as U.S. law goes, within U.S. jurisdiction. As far as European IP law goes, the territorial principle is the norm. This principle basically says that the existence of and the scope of copyright protection is dependant upon the laws of the legal system in the jurisdiction where the work is published.

In Europe, the little case law that exists, seem to indicate that the level of detail of the facts "borrowed" from a work, plays a crucial role. A work that "borrows" a detailed literary setting, including all the main characters, from another work, would probably be considered a derivative work in Europe. Harn is not a detailed literary setting, the same goes for most FRPG settings.



If you integrated a literary character that behaved just as it did in the original novel, then I would say that you had a derivative work, but now you just have a set of facts and ideas. I would suggest that you are not transforming a work, you are just reusing facts when you create a new work.



Fair use is a U.S. only legal construct, in Europe we have exemptions from copyright protection, in the U.K. they have something they call "fair dealing". The international parameter makes this issue even more tricky...



In the U.S. there seems to be a concept of fair use of a trademark. In Europe there's an EU directive that regulates the issue. You are permitted to use another company's trademark, as long as the use is loyal and follows good business practice you would be all right. There is also a decent amount of case law on the subject (from the ECJ), so it is not that a murky issue over here.

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Peter Brink
Rollspelshörnan

I am very familiar with that property.

Are you familiar with "Sky High"? It's a movie about American kids with amazing powers who attend a secret high school and must confront an enemy of their parents. It was released by a studio even more aggressive about legal rights than WB: Disney.

It is certainly possible to publish a novel along the lines I described, though it would otherwise have to be quite different. Rowling and her publishers cannot copyright ideas. Nobody can. Or West Side Story and Romeo Must Die could never have been made.

I could give you a log line that describes the plot to LotR (a quest, a magic Mcguffin, a Dark Lord) or the Narnia novels (children step from the real world to a fantasy one to save it from a great evil) at the same level of detail I did above, and they'd also fit a dozen other novels published after that made a ton of money at no legal risk to the publisher.

Keith Mann wrote:


Well, not really. Getting a good feeling for just how good or bad position CGI and NCR has, is fundamental for the understanding of what fanon creators can and cannot do. It may also help those that toys with the notion of using Open Content licenses.

When the claims of NCR and CGI are dubious and when they get even murkier when you add the international perspective, then all parties might gain security from using an Open Content license. The license could be used to lay down the rules of conduct for all concerned parties, creating security and stability when there are few good and reliable answers to tricky questions.

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Peter Brink
Rollspelshörnan

It all comes down as to how you define "Harn". Certainly the setting, as published is copyrightable everywhere that has copyright laws. Certainly you cannot claim that it's okay to quote extensive passages from the Rethem article on the basis that Harn shares basic characteristics with other games.

But what about the "idea" of Harn? At what point does a piece of fanon become derivative? My rule of thumb is that copyright protects an expression of creativity, not the idea of it. If you're copying (or recasting) actual expressions into your own work, then you're creating a derivative work. But if you're just using the "idea" of Harn, you're fine. Saying "this adventure is set in Harn" does not constitute derivation. Using the "expression" of Harn in your adventure, by using the name of a city, its layout and streets, the names of the shopkeepers as listed in CoH, etc., does count as derivation.

Where it gets fuzzy for me is that there's a threshold under which you're fine. Merely using the word "Coranan" is unsufficient. But also use the words "Tharda", "Red Domes", "Pamesani" and "Mejenes", and suddenly you're skating out over ice that's very thin.

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Cyril laugh at puny human!

Brandybuck wrote:


Ah, sorry. I was referring to the concept of Harn, or to put in another way: the set of ideas that forms the backbone of the description (expression) of Harn.



Names are not works. You can only create derivative works from works of authorship. Using names are quite OK. A set of names could be copyrightable; the scope of that protection is probably very narrow, however.



I think you need to use much more than that, just how much more is (unfortunately) dependent upon the jurisdiction you live in. IMHO you could use a larger set of names in Europe than in the U.S.

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Peter Brink
Rollspelshörnan

I might point out that, while the question of legal copyrights might be "meaningless" to most Hârniacs, it is quite meaningful to the livelihood of others. While I might question their choice of venues in which to discuss it, I am quite willing listen to their arguments. But that's just me. :agrue:

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Ralph Reinert

Rule 1) The universe is more complicated than you can imagine
Rule 2) Rule 1 is an oversimplification.