Copyright

Yeah. But it's still unauthorized derivative work.

That's absolutely true, but I still think that depending on the fanfiction it might fall under the fair use laws. The reason that I say might is, because I think that some fanfiction may not meet the definition of transformative. As long as no money is being gained from it. This point is very very important. In no way shape or form should you ever profit from another person's work by writing fanfiction. I think, for example, what the author of Fifty Shades of Grey did was wrong. Fifty Shades of Grey started out life as a Twilight fanfiction story. Then supposedly the author stripped all the references out and changed the setting then published the story and went on to make a lot of money off of it. I haven't read it since I find the premise of the story is not interesting at all to me, but it makes a good example for where I think the line should be drawn.

Keladry wrote: That's absolutely true, but I still think that depending on the fanfiction it might fall under the fair use laws. The reason that I say might is, because I think that some fanfiction may not meet the definition of transformative. As long as no money is being gained from it.

1. Derivative works are not fair use.
2. Copyright infringement is copyright infringement whether or not money changes hands.

You are correct that US Copyright law protects derivatives works. The question is not whether or not the fanfiction is a derivative work, but whether fanfiction is protected as fair use under US law. Which is a legal question that has not yet been tested in court. Even commentaries are derivatives from the original work, but are protected as fair use legally. One of the standards for fair use is how transformative a work is. That is does the work add new expression, meaning and messages to the original work. This is considered along with 4 other factors:
1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes
2) the nature of the copyrighted work
3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work.
4) the effect of the use upon the potential market for or value of the copyrighted work

The addition of how transformative a work is was established in the supreme court case Campbell v. Acuff-Rose which concerned the parody of a song. Although, as far as I am aware there has been no legal test case for fanfiction falling under the fair use there was a recent case in 2013 that dealt with appropriation art, Cariou vs. Prince. In his exhibit he displayed a collage piece that was made up of 35 images out of the book Yas Rasta which Cariou had previously had published which were photographs he had taken. Prince then later went on to make 30 other pieces that all featured altered versions of Cariou's photographs. Cariou sued him for copyright infringement. Prince defended the works as legal fair use of the photographs using the argument that Prince's use of the photographs was transformative. The court of appeals for the second circuit ruled that 25 of Prince's works were fair use on the basis that they were transformative. The court in their ruling stated that the law does not require that a work comment on the original or it's author to be transformative and that a secondary work can constitute fair use even it's purpose does not fall under the following purposes criticism, comment, news reporting, teaching, scholarship, or research. This principal has not been tested in court for fanfiction yet as far as I know.

The question of whether or not "money changed hands" goes towards both the 1st qualification the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes and the fourth qualification for fair use that is the effect of the use upon the potential market for or value of the copyrighted work .

Sources:

1. Organization for Transformative works (OTW) http://transformativeworks.org/faq#t456n21

2. Copyright Laws and Fan Fiction - Is it illegal to use other people’s work to create fan fiction? http://wbu.academia.edu/LKelly

3. Francis, J. (2014). On Appropriation: Cariou v. Prince and Measuring Contextual Transformation in Fair Use. Berkeley Technology Law Journal, 29.

Fair Use does apply to derivative works.

Pierre N. Leval on Copyright & Fair Use.

http://docs.law.gwu.edu/facweb/claw/levalfrustd.htm

Pierre Leval, 'Toward a Fair Use Standard' wrote: The use must be productive and must employ the quoted matter in a different manner or for a different purpose from the original. ...[If] the secondary use adds value to the original...

The nature of this paragraph heavily implies that the "transformative nature of the work" is applied only in the context of critical analysis, parody, or satire of the original work, and not as a lifting of setting and characters, which are blatant breaches of copyright.

Fan fiction is not critical analysis. Fan fiction is rarely parody or satire. It frequently flouts both copyright and trademark law, and does not generally add to the critical discussion of the work, the themes, the author, or any other literary point of the original.

'Copyright Laws & Fan Fiction'; Lori D. Kelly wrote: U.S. Copyright law is quite explicit that the making of what fan fiction authors call "derivative works" -- works based or derived from another copyrighted work -- is the exclusive province of the owner of the original work. This is true even though the making of these new works is a highly creative process. If you write a story using settings or characters from somebody else's work, you need that author's permission.

Your sources seem to agree with me on this one, guys. Sorry.

I did not use "Pierre Leval, 'Toward a Fair Use Standard" as my source. Yes, I referred to Lori Kelly's analysis for some of the legal history, but you have ignored the recent court case that I cited which speaks to what qualifies as transformative.Specifically, Johnathan Francis in his analysis of Cariou vs. Pierce wrote:
The court clarified that, in contrast to the district court’s belief,
“[t]he law imposes no requirement that a work comment on the original or its author in order to be
considered transformative, and a secondary work may constitute a fair use
even if it serves some purpose other than those (criticism, comment, news
reporting, teaching, scholarship, and research) identified in the preamble to the statute.
” Although many of the seminal “fair use works” did appropriate copyrighted work for the direct purpose of commenting on the culture those images represented,a work can still be transformative in the absence of such expressed purpose: it simply “must alter the original with ‘new expression, meaning, or message.’ ”
(1)
This court case provides legal precedent that a derivative work that adds new expression, meaning, or message is transformative. That is there is legal precedent that only critical analysis, parody, or satire of the original work qualify as transformative. The definition of what constitutes transformative is still evolving legally. I will reiterate NO ruling has ever been made about fair use and non-commercial fan fiction. And given what both sides stand to lose it may never be. Finally, I would love to know how you got the idea that there are few fan fiction works that are parodies considering that many fan fiction sites have an entire category devoted to them. In fact, arguably one of the largest repositories on the internet www.fanfiction.net for fan fiction, has as one of the options for genre,parody. I have read many of them.

1) Francis, Jonathan. "On Appropriation: Cariou v. Prince and Measuring Contextual Transformation in Fair Use." Berkeley Technology Law Journal 29 (2014).

my mom says i was eight or nine when i wrote my first fanfic - it was a ninja turtle story where Craing (the evil brain from dimension X) created a casino slot machine that would pump out foot soldiers as fast as Shredder could pull the handle

i drew pictures for every new scene and it was done on paper that i had folded and stapled to be just a "real" book

i loved the ninja turtles

i wasnt stealing food or money from anyone, i was expressing my excitement for a world that inspired me

i couldnt NOT come up with some of the ideas i had

its like that for a lot of people and imo this is a good thing

it is a healthy human experience to be creative and expressive and if my imagination is fired up by your imagination and then maybe even someone elses imagination is fired up by mine, no one will never collect enough lawyers or moguls to convince me there is something wrong with that

Keladry wrote: I did not use "Pierre Leval, 'Toward a Fair Use Standard" as my source. Yes, I referred to Lori Kelly's analysis for some of the legal history,

6h cited the other source I quoted. I was responding to you both.

but you have ignored the recent court case that I cited which speaks to what qualifies as transformative.

And you have ignored the fact that the routinely-upheld spirit of the "fair use" clause is for discussion of pre-existing works for the purposes of critique, education, or satire, and that derivative works have been routinely found to require license from the copyright holder, even if "transformative" in nature, if they don't fit the critique/educate/satirize criteria. The reason for that is because any amount of unlicensed, copyrighted material in a work that does not fall under the fair use clause is still illicit use of that copyrighted material. And, therefore, illegal.

I am not talking about the "spirit of the fair use". I am talking about the actual application of the fair use law. Which is still evolving. The interpretation of laws changes over time. This is about legality not right or wrong. The court case that I cited provides legal precedent, for derivative works that are not parody or satire or commentary to fall under the protection of fair use. Does this mean that I think you should make derivative works like fan fiction when the author has explicitly stated that they do not give permission. No, it does not. In my opinion, you should not do that, but that is not a legal argument. However, I am now going to leave this discussion. Have a great day!