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this post was submitted on 25 Nov 2024
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Are you misreading "preparing" as literally any writing?Even that Wikipedia article goes into fair use. Let's plays are potential infringement because people make money from them. There's stuff like that one Switch emulator that got taken down a while back because it had a direct effect on Nintendo's ability to sell hardware. But there's also stuff like PokeMMO which has been allowed to persist because they don't actually distribute any Nintendo code and Nintendo isn't selling those games anymore.
What effect on the market can there be for a fan remaster of a 20 year old game that isn't for sale anymore? Hard to argue that doesn't fall under fair use.
"Prepare derivative works" means not just any writing, but literally anything creative. If you paint a picture of a character from a book, using specific details described in that book such as their appearance and name, you are creating a derivative work.
https://law.stackexchange.com/questions/78442/what-is-considered-a-derivative-work
Fair use carves out an exception for parody, criticism, discussion, and education. "Entertainment" or "because I like the series and these characters" are not one of those reasons. Fan fiction might qualify as parody though.
This is not how "the effect of the use upon the potential market for or the value of the copyrighted work" part of fair use works.
A company can create a work, sit on it for literally 100 years doing nothing with it and making not a single cent from it, then sue you for making a nonprofit fan work of it. Steamboat Willie is 95 years old and until just this year you could have been sued for drawing him. Note that, in the eyes of the law, Steamboat Willie is effectively a different character than Mickey Mouse.
Again, I cannot stress enough how it doesn't matter at all whether you are personally profiting from something or whether you are affecting a market. The word "potential" in that quote above is doing a lot of work:
A father in the UK wanted to put spiderman on the grave stone of his 4 year old son who loved the character. Disney said "no". Disney does not make tombstones. You are not eating into their profits by putting spiderman on a tombstone. And yet in the eyes of the law Disney has every right to stop you since they might decide to start up a tombstone business next week.
Nothing I have written here is legal advice.
EDIT: I am not a fan of any of this. I think you should be able to write nonprofit fanfiction without worrying that some corporation might sue you. I am on your side on this. But this is the reality we live in.
It really comes down to the purpose (relevant law):
As well as the following characteristics:
Painting a picture could very well fall under 3 (renders from descriptions in a book probably aren't "substantial") and 4 (a painting of a description is unlikely to diminish the original work). That said, if paintings already exist and yours looks substantially similar to those, it could violate the copyright of those paintings.
Fan fiction, however, directly competes w/ the original work and borrows more directly from existing works, so it would come down to how much it borrows. Writing something in the world of a book may be fine, whereas including specific characters from that world may not. It all comes down to the intended purpose and the characteristics listed above, as well as how well you can argue your case.
I don't think that's true. I'm guessing what happened is that Disney threatened a lawsuit and the father didn't want to fight it, even if he had a strong case. That said, I don't know UK law and how it relates to US patents, so maybe Disney has a stronger case there than they would in the US.
But yes, I agree with the general point here: be very careful with copyrighted works, especially if a big, litigious company owns it (e.g. Disney).
It's also only actually parody if you are using the material to make a commentary on the original work.
Someone like Weird Al gets explicit permission for all his works. (Though the extent that that's respect for the artists vs legal necessity may be debatable because he does tend to comment on the work he's imitating.)