I'm honestly not going to quibble over the points of this
Ah, yeah, sorry. Once a lawyer sees something that she thinks isn't quite 100% accurate, it's an irresistable invitation for quibbling. *g*
No disagreement that fans, all of us in the Western world anyway, swim in murky waters when it comes to copyright. And you're right that so far there has not been a test case, or at least none in any jurisdiction of which I'm aware.
I think that in the UK it's not likely that a copyright holder would put its copyright to the test vis a vis fannish derivative works because in monetary terms is just isn't worth it. Part of this is because of the costs rules in the English & Welsh jurisdiction means that even if they win they're likely to be substantially out of pocket. Unless the fan in question is wealthy, which is not likely.
Also the damages they'd likely be awarded would be peanuts and then there'd be the loss of fannish goodwill. Not to mention the fact that under UK law they're not onto a dead cert anyway.
The damages argument, I suspect, would also apply in the US, although I can't say that for certain (you guys have some damages awards that are mind-bogglingly huge by British standards). But in the end it would also probably come down to money in the US as well.
However, all that being said I can quite understand why no fan would want to be the test case. I wouldn't want it to be me, for example.
But I wasn't making the point about the legalities of the situation with a view to someone going out and actually testing it. I wrote as I did because I see a lot of misinformation posted online. In the case of your excellent post I just thought I'd clear up the particular point re the holding of copyright in derivative works because I've seen comments to the effect that violation of copyright is theft and if you do it you've got no rights at all to any derivative work you produce.
Which feeds into the sense of fannish entitlement and 'I can do what the hell I like because you're nothing but a thief' etc. So I just wanted to clear up that this argument is, well, pretty crappy, really. Certainly, at the end of the day fans mostly have to rely on the morals and ethics of other fans but at least we should be able to prevent them trotting out that particular specious argument when they've engaged in some reprehensible behaviour themselves.
Re: Just to clarify
Ah, yeah, sorry. Once a lawyer sees something that she thinks isn't quite 100% accurate, it's an irresistable invitation for quibbling. *g*
No disagreement that fans, all of us in the Western world anyway, swim in murky waters when it comes to copyright. And you're right that so far there has not been a test case, or at least none in any jurisdiction of which I'm aware.
I think that in the UK it's not likely that a copyright holder would put its copyright to the test vis a vis fannish derivative works because in monetary terms is just isn't worth it. Part of this is because of the costs rules in the English & Welsh jurisdiction means that even if they win they're likely to be substantially out of pocket. Unless the fan in question is wealthy, which is not likely.
Also the damages they'd likely be awarded would be peanuts and then there'd be the loss of fannish goodwill. Not to mention the fact that under UK law they're not onto a dead cert anyway.
The damages argument, I suspect, would also apply in the US, although I can't say that for certain (you guys have some damages awards that are mind-bogglingly huge by British standards). But in the end it would also probably come down to money in the US as well.
However, all that being said I can quite understand why no fan would want to be the test case. I wouldn't want it to be me, for example.
But I wasn't making the point about the legalities of the situation with a view to someone going out and actually testing it. I wrote as I did because I see a lot of misinformation posted online. In the case of your excellent post I just thought I'd clear up the particular point re the holding of copyright in derivative works because I've seen comments to the effect that violation of copyright is theft and if you do it you've got no rights at all to any derivative work you produce.
Which feeds into the sense of fannish entitlement and 'I can do what the hell I like because you're nothing but a thief' etc. So I just wanted to clear up that this argument is, well, pretty crappy, really. Certainly, at the end of the day fans mostly have to rely on the morals and ethics of other fans but at least we should be able to prevent them trotting out that particular specious argument when they've engaged in some reprehensible behaviour themselves.