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Copyright Infringement: Three Myths and Facts

So I saw a comment on a Furaffinity journal this morning that yet again made a bunch of inaccurate claims about what does and doesn't count as copyright infringement. It's a lot of the same (wrong) claims I see all the time, so I thought I'd take advantage of Cohost's long form to make a post about copyright myths and facts. One disclaimer: I am not a lawyer. What I'm saying here is the result of several years of meticulous research on my part, but I am not qualified to give legal advice.

Myth 1: It's not copyright infringement unless I'm profiting off of it. Fact: Copyright infringement claims are about your liability to the original owner of the intellectual property you're using. It is possible for you to make no money off of what you created from someone else's IP and still be liable for infringement. The reverse is also true: in some cases, you can make money off of someone else's IP and not be liable. While profit may influence your liability, it's not the sole factor that determines whether you're guilty of infringement or not (in fact, there is no single factor that does).

Myth 2: Most companies don't waste time going after people who make fan art.

Fact: Companies routinely "go after" creators of fan work. You just don't hear about it much because fan art is almost always copyright infringement, so the overwhelming majority of those cases usually end without ever going to court. Usually, it's as simple as the copyright owner (Disney or Nintendo, for instance) submitting a DMCA notice to the website hosting the fan work (DeviantArt or FurAffinity, for example), and the host site removes the fan art in question. On the occasion that a creator decides to fight it, they get a lawyer, who immediately tells them "Sorry, you don't have a case." Some higher-profile cases do make it to court (the Harry Potter Lexicon case, for instance), but even then, they usually lose. Nintendo forced a well-made Legend of Zelda fan movie offline. Paramount kneecapped a fan-made Star Trek project. If you think you're safe because you're working in a franchise that has a lot of existing fan art, you're not.

Myth 3: Aha! But if I call it parody or research and claim "Fair Use," they can't touch it!

Fact: The Fair Use Doctrine is not a magic bullet against copyright infringement liability. First of all, Fair Use is not a denial of infringement. If you bring Fair Use as your defense in a copyright case, you are essentially saying "Yes, I am infringing on the owner's copyright, but I should be allowed to in this case." Criticism, parody, education, research, and so forth are part of the nature of the work, but the nature of the work is only one of MANY factors considered in a Fair Use case. In other words, "it's a parody/criticism/etc." is the bare minimum point of entry to even claim Fair Use, not a guarantee that you'll win a Fair Use case.

In Summary: Almost all fan art is technically copyright infringement. It is allowed to exist purely at the sufferance of the companies who own the franchises. Some companies are more tolerant than others (some even have creation resources for fan works!), but that is purely up to them. Companies have little to gain by prosecuting their own fans, but that doesn't mean that they can't or won't. We can have a whole talk about the nature of copyright law and needed reforms and whatnot, but that's a separate discussion. This is more just addressing how things currently stand without attempting to cast any "good" or "bad" judgment on that status quo one way or the other.

(Crossposted from Cohost)

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