A lot of people have a lot of opinions about the place of fanfiction and copyright in the wake of Amazon’s announcement that they will publish and sell fanfiction for specific franchises. One author/fanauthor I follow sifted through the whole mess and had some questions lingering before she would hypothetically allow her original worlds to be available in this Amazon project:
Will I lose my copyright in the world/characters I’ve created if I allow others to use them or if I look the other way if someone else uses them in something that’s commercial? ? Further, what copyright do the fanfic writers retain on their work using my world/characters? How would that pan out?
One very common copyright myth that goes around is that your copyright will expire if you don’t vigorously protect it. Author Orson Scott Card has famously said ”if I do NOT act vigorously to protect my copyright, I will lose that copyright.”
Not only is this wrong, but it displays a fundamental misunderstanding of what copyright is, and how copyright functions under the Intellectual Property umbrella. Patents are about unique, non-obvious inventions. Trademarks are about branding. Copyright is about authorship.
Let’s take a look at all the music downloading cases— we all know the stories: you download one song off The Pirate Bay, your IP gets flagged, and the next thing you know you’re getting served with papers suing you for $150,000 per song you ever downloaded.
But let’s break down how these suits work: torrents are peer to peer networks, which means there’s an entire group of people downloading and uploading the same song/tv episode/movie simultaneously out of a decentralized web. Hypothetical You, who is now a defendant, is the only one of the swarm being sued. The record label is going after only one person.
However, the record label’s choice to bring one suit at a time doesn’t damage their ability to later go after anyone else in the swarm. If in two years they decide to pull your neighbor’s IP address out of the hat, they still have a valid case against your neighbor.
Not only that, but ignoring a thousand other people downloading the file doesn’t mean they’ve given up the copyright. Even if they never sued anyone for infringement for the download, they’d still own the copyright, and can still go after anyone who downloaded it.
The same holds true for fanfiction: our use of these worlds in no way diminishes or devalues the copyright the author holds in the original work.
Trademarks and copyrights aren’t the same thing. Copyright exists automatically in anything you create, but trademarks only exist for something you’re marketing, selling, promoting or using as a brand. And if you don’t protect your trademark against infringers, you run the risk of losing it, because if the awesome phrase you’re using as your trademark becomes associated with things not created by you & yours, then it no longer identifies only your stuff/goods/services/brand.
(This doesn’t mean you can - or should - go after anyone who uses the same phrase or design in any context, because other people who use your trademark in limited ways, such as to describe your thing or compare their stuff to yours, or in a narrative context, or in a transformative work, can do so. You don’t have to try to stop them, and the lack of trying won’t impact your trademark rights.)