As a kind of deeper issue, the problem is that, in general, people don’t understand the law.
The law as a whole is big and arcane and there is a reason people go to graduate school and get a doctorate to practice it. So, when you come across statements from non-professionals like, “Ideas are not copyrightable,” that’s true as far as the statement itself goes.
Copyright governs expression of ideas, not the ideas themselves. But where do you draw the line between Idea (not copyrightable) and Authorship (one of the things Copyright is meant to determine)?
A Joint Work, according to 17 U.S. Code § 101 Definitions is, “a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.” That relies on the mutual intent to create a working relationship. BUT, and it’s a big but, the courts haven’t really stuck to that. The courts may and have during copyright infringement cases granted joint work ex post - coauthorship after the fact. They didn’t intend to be coauthors but they were. How much expression does there need to be? How much work does an author have to do in order to become an author, even if no one but them had any intention to treat them as an author?
And that’s the real damn problem. It’s the porn definition. The court knows it when it sees it. The legal framework for determining coauthorship has nothing to do with how many words someone writes, how many hours they put in, or what exactly they contribute.
The criteria are that the expression must be:
Intent (see the ex post problem above)
Substantial enough (whatever that means) to constitute authorship OR at least not legally de minimis (again whatever that means, remember no word count or hour count or anything. I know big when I see it.)
Original or Innovative (a very high or very low bar depending on who you ask - again, this is someone’s judgement call when it comes to coauthorship, we’re not talking about innovating on an existing text, it’s how much someone innovated on the text before it was published)
Fixed in a tangible medium (I’ll come back to this one)
Common (as in shared) design
Effort by the coauthors to fulfill that common design (I’ll come back to this one, too)
It’s the last three that cause real issues for the subject at hand.
Fixed in a tangible medium is relatively easy. It just means it has to be written down or drawn. Which means an ask works just as well as an interoffice memo. It is avoidable when there are more extreme differences between input and output. There was a case of coauthorship, Meltzer vs Zoeller, being rejected when the sketches provided by a man to a contractor were not deemed sufficiently comparable to the actual blueprints produced. Not in what they depicted but in quality. The thing is, fanfic, really isn’t that much different from original fic, which really isn’t that much different from professional fic. Text is text, so that kind of difference isn’t there. It’s not really a defense for fiction. Once it’s the same essential thing: text, it’s fixed in a tangible medium.
Common design, yeah, well you’re doing the exact same thing: trying to grow a storyline and characters in a certain direction. Basically, if this goes to court, this is there.
Now, we’re down to one person’s word vs another’s. Was there effort? If someone is bringing suit, they think there was enough effort. They can point to all the interactions they had with the author, even the ones that the author never wrote back. How much effort does there have to be? Again, no hourly quota. This is weak sauce as a defense.
Unfortunately, these last three, are the ones that the courts have built the concept of joint authorship out of since Maurel v. Smith in 1915. And if there is any evidence at all, two out of the three are not in the professional’s favor.
Will the court rule in favor of the professional artist who did all the work and probably didn’t even think about the fan-suggestion? Yes, probably. Probably. On balance the court has not sided with people making the coauthor argument. And many more fans rely on saying it was their idea, which has no standing, so it gets tossed out but that’s still a big waste of time.
But imagine you’re the professional.
Every single suggestion you get like this is a risk that you’re going to have to face this legal hassle because the bar for grounds for the case to go ahead is going to be passed because of the situation - it’s fixed in a tangible medium for all to see.
The more famous you are and your product is, the more fan interactions you have. More fan interactions means more suggestions. In other words, the bigger you are, the more dice you have to roll about this legal issue coming up.
It doesn’t matter how often you win. Because you have to pay legal fees for every case. And most of the people who are going to cause this problem don’t have the money to reimburse your legal fees, no matter what the court commands. They’ll go bankrupt and start over. You’ll still have bills. Growing piles of them as you try to stay above water.
So, in that case, as an honest assessment of the situation, do you want to just let the dice roll and hope for the best? Or do you just put up your hands and say: no, I’m not playing. The risk is too high for me, even if it works out, and too low for everyone else, even if it goes completely against them.
The logical incentive is to do what seananmcguire does and ask not to play the game. Running the numbers is always bad for the professional. Because the numbers never favor them.
It’s a toss up who it is worse for. An independent professional is going to run out of funds much quicker because they’re 100% responsible for their own funding. A professional who works for a big company might rely on them for funding the legal case. But corporations are heartless about running the numbers. If you’ve never been in a room with money people you have no idea how cold it is. It’s never, “hey, I’m worried, let’s fire a couple thousand people to protect our profit margin, to be safe,” it’s the calm reassurance that, “The bonds will be repaid.” And when those people see a profit margin error with an artist who attracted unnecessary legal trouble - on the chopping block the professional artist goes. And they go on the block as fast as an exec calculates they can get away with it. Which means they’re out of a job. And the money people at the next job will make very careful considerations about hiring them at all.
And that’s just the technical issue. Just the legal and monetary repercussions. And only from one direction. If the fan gets a clever lawyer the case will be based on something completely different. And I just used text because once you add images in addition, there are more laws that apply. For the comics industry I wouldn’t be surprised if Trade Secret applied in addition to Trademark and Tradedress. …At least I think there are Tradedress issues with how the comic books themselves are designed. I don’t know. Maybe not. Besides the point anyway.
There is, as already mentioned, the social problem. And who wants to deal with that when it’s a storm just saying, hey, this is legally difficult and I don’t want to engage. Just a pain.
I feel like what somebody should really do is make an easy access legal faq for fans. I suspect it gets done all the time. But, you know, just a nice link of: Please click here to get an explanation. Maybe if I have another day like today of obsessive internetting and refusing to eat I’ll start on that.
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