Just dropping by to correct what seems to be some misunderstandings since I just took a final on Intellectual Property and have it fresh in my mind. Note that I'm specifically talking about U.S. law here. Each country has their own IP laws with different standards. But generally...
Plagiarism and copyright are two different things.
Plagiarism is taking the ideas of someone else and passing it as your own. This is wrong ethically and morally, but may not be wrong legally.
Copyright is a set of exclusive rights given to someone for creating an original work. Those include a bunch of things, but most relevant here are the exclusive rights to make copies of the work, distribute copies of the work, and make derivative works. Violating copyright is definitely wrong legally, but may not be wrong morally (in the U.S. Europe is different and includes clauses about moral rights to the work in copyright protection)
Because of that, whenever you make a copy of the work, whether in part or in whole, you infringe on the copyright. Whenever you reupload or pass a copy to someone else, you infringe on the copyright. Whenever you make something new based on someone else's work, you infringe on that copyright.
However, copyright only protects the
expression of an idea, and not the idea itself. That's a bit complicated to explain and would probably take a few pages, but essentially it's the difference between 'MC gets transported to another world' and 'Bob gets sent to Fancyland by Luritana, the goddess of love, with the gift of charm.'
Now, here's where it gets dicey. When it comes to fan work, there's no question that you are infringing on the copyright of the original work. Especially if you're using characters, plot, setting, etc. That's clearly infringing on the exclusive right to derivative works and maybe the exclusive right to make copies of the work, depending on how much you take. Because of that, if the copyright owner wanted, they could hit you with a lawsuit.
However, for fan works, you get to defend yourself with fair use. I won't get into the in's and outs here since a lot of people
don't understand it and use it wrong
so much by claiming it without knowing what it actually is that I don't want to add to the confusion. Talk to a lawyer if you want a thorough understanding of what actually counts and does not count. It varies.
The main point though is that any time you're copying or building on something that has a copyright, whether picture or writing, and taking it either in part or completely, you're gambling.
Some copyright holders are nice and will let you do it. Others are polite and will just ask you to stop. Then there are people who will DMCA. And there are people who will straight up sue you. A bit rare in this day and age on the last group, but they exist.
A lot of people making fan works do so without worry because a lot of authors allow it. After all, they're the author's fans, and it's kind of rude to burn your fans like that. Not to mention bad PR. But they can. Since they have the copyright, they're free to stop people from making fanworks and enforce it with the law if need be.
Regarding taking an artist's work of art and using it for your own, that's a slightly different situation. Even if the artist doesn't have a copyright on the underlying character, they might still have the copyright on that particular art piece since it's their expression of that character. It gets murky.
Generally though, if an artist makes something and you use it, even if you're tinkering with it a bit by adding text or changing the colors, you might still be on the hook. This is especially true in Europe since they have these weird moral rights for copyright that allows them to maintain the moral integrity of their work... or something.
Most artists are nice. And most don't understand copyright very well. Most also don't have the money to pay for lawyers or filing lawsuits. Because of that, there's lots of times where nothing happens. However, you have to keep in mind that something could happen. And because DMCA exists, they can also just resort to that to protect their copyright if they
really wanted, and you'd have to counterclaim it.
tl;dr:
- plagiarism is not always copyright infringement
- Copyright doesn't protect ideas, but specific expressions of ideas
- You're always infringing copyright in fanworks
- Fair use is a thing, but not as easy to get as people think
- Making fan works and using copyrighted stuff in general is gambling on whether or not you get sued.
Thank you for reading this essay.
Also, NOT legal advice. Definitely see lawyer in your area to confirm details if you're worried. Rules vary a lot depending on where you are, not to mention whether jurisdiction allows you to even get sued by the CR holder.
-Happyvainglory
