Originally posted by AislingGrey
And Elver, since I'm pretty sure you haven't been around here as long as some of us, I'll just give you a brief summary of my credentials: I worked in the music business, in a copyright and licensing capacity, for about a dozen years. Even though I'm now a web designer, I do still keep up with current US Copyright law and legislation, so I'm pretty much the authority here. While I'm not a lawyer, I have more years of experience working with US and international copyright laws than many entertainment attorneys currently practicing in the field, so I'm fairly confident of the opinions I make in this regard.
And Elver, since I'm pretty sure you haven't been around here as long as some of us, I'll just give you a brief summary of my credentials: I worked in the music business, in a copyright and licensing capacity, for about a dozen years. Even though I'm now a web designer, I do still keep up with current US Copyright law and legislation, so I'm pretty much the authority here. While I'm not a lawyer, I have more years of experience working with US and international copyright laws than many entertainment attorneys currently practicing in the field, so I'm fairly confident of the opinions I make in this regard.

Okay, on to the post:
First of all, both fan fiction and the re-creating of ships are both types of copyright and trademark infringement. An infringement (based on US and many other countries' laws) is not determined by whether or not any profit has been made, or any money has been collected. The presence or absence of money having changed hands will only affect the terms of the court settlement or fee. Obviously, if an infringer has profited hugely, they'll be charged a much larger fee than a "Joe Schmoe" infringer who just happens to have some trademarked logos on his personal website.
First of all, both fan fiction and the re-creating of ships are both types of copyright and trademark infringement. An infringement (based on US and many other countries' laws) is not determined by whether or not any profit has been made, or any money has been collected. The presence or absence of money having changed hands will only affect the terms of the court settlement or fee. Obviously, if an infringer has profited hugely, they'll be charged a much larger fee than a "Joe Schmoe" infringer who just happens to have some trademarked logos on his personal website.
I think it would fall under fair use. In the sense that if you want to write about Babylon 5, (a review, say) then you will need to use the trademarked term "Babylon 5" and most likely you'll be wanting to use the logo of Babylon 5 as well. Perhaps a few screencaptures too. That would be fair use, methinks.
The question is, where does the border between fair use and not so fair use go? If you use copyrighted/trademarked things in your fanfic and add a disclaimer saying that these things belong to WB and their use isn't endorsed, then what? Does it still fall under fair use? It's basically right there with writing a novel and using something like the following in it:
Dave opened the bottle of Coca-Cola he had found in the ruins of New York. He took a large gulp, frowned and tossed it on the desert sand. "Disgusting stuff," he said, took the wheel and drove off to his hiding place in the mountains.
Now, could the Coca Cola Company sue you for this?
And, just as with the money issue, whether or not you label the infringement with a disclaimer about ownership doesn't affect whether or not it is an infringement. It's no better, or more legal, to infringe on a copyright if you post the name of the copyright owner.
This is not true. You _cannot_ write a fan fiction story about the erotic adventures of Sinclair and G'Kar. Besides the fact that I will hunt you down and hurt you <g>, it is an infringement of copyright. Whether or not you post a disclaimer about who owns the characters.
The reason fan fiction seems to exist in a separate, un-prosecutable realm than other infringements, has been discussed here before. Mainly, it's because with fan fiction, there is very little possibility that the property will be tangibly damaged by it. That is, no one who reads fan fiction on a website, or downloads it from a website, or buys a stapled copy of it at a convention, is likely to mistake the fan fiction for a legitimate, licensed Babylon 5 product.
Shr'eshhhhhh, this is an interesting question. Certainly, the author of such a fan fiction (one they believe has been infringed upon) could bring suit against another party, and the decision would depend on the judge and their interpretation of the law, and their judgement of the particular case. But...oh, let me make this into an example so it'll be easier to understand:
Let's say that someone authored a fan fiction about Susan and Talia having all kinds of sex (there's _tons_ of fan fiction on this subject out there), amidst a plot about them traveling to the rim of the galaxy and saving known space from a horrible space duck, by the use of amazing telepathic powers. Now let's say that some enterprising young filmmaker comes out with a film about two women, lovers, both telepathic, who travel to the rim of the galaxy and save known space from a horrible space duck by the use of amazing telepathic powers. But the lead characters are not Susan and Talia.
Okay, so we have the author of the Susan/Talia fanfic taking the filmmaker to court, based on the _original_ component of their story.
Now....by bringing this up for public scrutiny, they've opened themselves right up to a lawsuit which probably would never have happened if they'd only written a fanfic that was on a website somewhere. But let's say that the judge in this case decides on the part of the fanfic author, and the filmmaker is required to pay the fanfic author a million dollars in damages. Don't you think that the WB will come right up and say that the million dollars rightly belongs to _them_, as the original story would never have been written without the impetus that a fan had to write about Susan and Talia?
Let's say that someone authored a fan fiction about Susan and Talia having all kinds of sex (there's _tons_ of fan fiction on this subject out there), amidst a plot about them traveling to the rim of the galaxy and saving known space from a horrible space duck, by the use of amazing telepathic powers. Now let's say that some enterprising young filmmaker comes out with a film about two women, lovers, both telepathic, who travel to the rim of the galaxy and save known space from a horrible space duck by the use of amazing telepathic powers. But the lead characters are not Susan and Talia.
Okay, so we have the author of the Susan/Talia fanfic taking the filmmaker to court, based on the _original_ component of their story.
Now....by bringing this up for public scrutiny, they've opened themselves right up to a lawsuit which probably would never have happened if they'd only written a fanfic that was on a website somewhere. But let's say that the judge in this case decides on the part of the fanfic author, and the filmmaker is required to pay the fanfic author a million dollars in damages. Don't you think that the WB will come right up and say that the million dollars rightly belongs to _them_, as the original story would never have been written without the impetus that a fan had to write about Susan and Talia?
Suppose you take a piece of code that has been released under the GPL. (GPL says that if you give someone the compiled executable, then you must also give away the code and that code must also be released under the GPL to that person.) Say, you take a simple todo list manager. You add a few simple features to it, then a calendar, then turn it into a full personal schedule management system. You then rewrite the parts of it that came with the original code. (The simple todo list part.) After that, you own full copyright to that code and are free to do with it as you please -- you own the code. The fact that you originally based it off a piece of GPLed code has nothing to do with it.
True, but it's usually "fair use" that people get confused about with regard to whether or not a profit has been made. "Public domain" is something else entirely, and also has its share of misunderstandings.
Something that is in the public domain is, simply, something that is not protected by copyright law in a particular territory. So that can mean something that was once protected, but whose protection has now expired; or it can mean something that was never eligible for protection under any copyright law. Examples of that are short phrases and names (those are eligible for trademark protection instead), the information that is in a calendar, on a clock, on a multiplication table, etc. That's freely available information, and while someone might copyright their _presentation_ of it (see any Hallmark calendar, or calendar by a famous artist), the actual information about the days and dates is not copyrightable.
As for "fair use," that's the thing that people sometimes think their particular use is covered under. "Fair use" is an exception to US copyright law, and whether or not something falls under its aegis has little or nothing to do with whether or not any money has changed hands. Fair use was mainly set up to accomodate direct teaching and critique/review situations. If you're reviewing a book, you have to be able to quote from it. If you're teaching about a symphony, you have to be able to use excerpts from the score in your teaching materials.
Um... I think that's about the gist of what I meant to say. Is anyone still awake? Anyone? Anyone? Bueller?

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