That’s what AJ Hall, British lawyer/IP specialist/fanfic writer said on Twitter this morning.
As fans and fanfic writers, we’ve been discussing Caitlin Moran’s objectionable actions at the BBC’s Sherlock screening in requiring Martin Freeman and Benedict Cumberbatch to read a piece of John/Sherlock slash aloud with a slightly different perspective.
Ethically, what Moran did was wrong, and that’s been discussed by the awesome author of the fic in question, on tumblr, on blogs, and on Twitter. (This won’t be the first time she did something awful, btw.)
But legally, did she do anything wrong?
The answer is, under English law, probably.
In all of the English-speaking countries, a fanfic writer holds the copyright in her exact word choices fromthe moment of creation. That doesn’t mean she gets copyright in the characters that come from others’ works, or in the lines that she quotes from the canon or from other sources, or in short phrases or names, but in each sentence that she pens, she owns some rights; posting a story or image or article online does not put that work in the public domain; it simply means that the work “has been made available to the public”.
Even if the quoted work itself was copyright infringing (which is a very difficult issue given the creators’ tolerance of non-for-profit fanworks so giving rise to implied licence arguments, especially given the [& ]public domain status of John Watson & Sherlock Holmes) that doesn’t give owners of copyright in source text ownership rights over the derivative work. [See the arguments behind the removal of the conversion damages when 1956 copyright act was repealed.] That point was made clear back in 1988, when the Copyright Designs and Patents Act was passed, although earlier cases had already pointed in the same direction.
The ”Fair dealing” exception is here: http://www.legislation.gov.uk/ukpga/1988/48/section/30 . It limits fair dealing to criticism, review and news reporting.
I don’t believe that the dealing yesterday was fair; it might have been for the purposes of review (of the underlying fanfic) but I’d say arguably it wasn’t, it was to mock fan creators and /or as a joke. In any case, the dealing does not seem to have been fair in all the circumstances of the case for example no effort made to seek consent and there was the ambush element [etc] of both the actors and the author.
Infringement is caused by taking the ”whole or substantial part” of the underlying work without a lawful excuse, but “substantial part” is a qualitative not quantitative test - clearly the scene had been cherry-picked for shock value, which is exactly the circumstances where a limited volume copy can still be “substantial”.
In other words, had Caitlin Moran read a few sentences from this fanfic, or even a few fanfics, that might have been unethical or immoral but it might not have been infringement. However, reading a significant portion of the story could be seen as a “public performance” of the author’s work; as it was done without her permission, it would be infringement if it wasn’t covered by any of the elements of “fair dealing”.
A copyright-protected work can be quoted, publicly performed, etc. “for the purpose of criticism or review, of that or another work or of a performance of a work, does not infringe any copyright in the work.” Acknowledgement is required (and did not happen at the Sherlock event) except in limited circumstances. Fair Dealing might have applied in this live Q&A situation, except for the fact that the way Ms Moran handled it here may have infringed on the author’s copyright and/or moral rights.
Along those lines, if the BBC wanted to release this Q&A on a DVD at some point in the future, or put it on YouTube, could they do so without cutting most or all of the fanfic, or getting permission from the author?
While we think they can include a few sentences, we believe that using all of the reading without permission from the author, in the context in which it was used at the Q&A ,would infringe on her copyright and might also infringe her moral rights, which are an element of UK copyright law that does not have a parallel in the US.
As the UK Copyright Office says:
Moral rights give the authors of literary, dramatic, musical, artistic works and film directors the right:
to be identified as the author of the work or director of the film in certain circumstances, e.g. when copies are issued to the public.
to object to derogatory treatment of the work or film which amounts to a distortion or mutilation or is otherwise prejudicial to the honour or reputation of the author or director.
Ms Moran’s commentary during this portion of the Q&A could [easily] be deemed derogatory, and given what the author said in her posts yesterday, the use of her story in this context can be viewed as a distortion of the honour of the author.
The author did not wish her real name used, so the moral right relating to “being identified” as the author is less relevant than the second right, namely “the right to object to derogatory treatment.” It is clear from the author’s own post on Tumblr that she regards this moral right as having been infringed, and there seems good grounds for her to take this view.
She wrote this story, and others, to share with friends and within the fandom. Is it distorting her honour to take her “writing out of context without permission, belittling it and using it to embarrass actors who I deeply admire”?
As a matter of law, it may very well be.
[ETA: We wonder if this has occurred to the BBC and is part of the reasoning behind their request that people pull down video of the Q&A. We also wonder if video of this portion of the Q&A might be distributable pursuant to Fair Dealing in connection with reporting on the topic, or commentary or criticism thereof.]
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