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I sometimes write rather vicious satirical pieces that heavily reference (arguably - but possibly beyond the point of plagiarism; definitely the same setting, the same characters, strong references to events) the works upon which the satire is written.

Expectably, authors, or their fans, aren't entirely happy about that, and try to shut me down one way or another.

Yes, the safe haven of Fair Use for Satire applies. Yes, I'd win a lawsuit if it ever came to that, but I definitely try to first argue, to a point where the other party won't start a lawsuit, or where DMCA or moderator action could get my publication removed; prove to them that their actions would be unlawful. But getting just this through some thick skulls is difficult. So, let us for a moment forget the Fair Use clause, and have a look at one other vector of defense:

Thing is, these of pieces I write about are usually fanfiction. Based upon a setting, characters and events that belong to a popular franchize, with trademarked characters, popular following and a big corporate entity with an army of lawyers ready to C&D anyone who tries to commercialize on their success.

In effect, anyone waving their copyrights to their fanfic in front of my face gets slapped with "Could you show me your copy of license from [Bigcorp ltd.] that grants you the right to pursue the copyright on my use of their characters and setting?"

It works very efficiently actually; I never had anyone follow up on their threats after that. Still, I'd like to know - does it work like that, or am I merely throwing a bluff in their face?

Summing up:

  • Entity A possesses some franchize.
  • Entity B creates a derivative work of franchize A, which is possibly infringing upon its trademarks/copyrights (although A doesn't pursue that, leaving the infringement alone.)
  • Now, entity C creates a derivative work based on work of B to a degree that could be considered infringing, had B's work been fully original. (never mind infringing upon A; they remain 'inert').

Now, can B legally demand C to remove their content, due to the potential infringement, or does B's own infringement void any further claims to derived content?

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One thing to keep in mind is that people can sue for anything they want, even if they will lose. Failure to respond to the suit generally results in default judgement for the plaintiff. So, a truely angry copyright owner could cause you annoyance and possibly financial loss simply by suing. In the US you can't sue for infringement until registration is filed. For more details see this –  Jeremy Miller Jun 20 '14 at 2:57
I think you mean 'parody' rather than 'satire'. Simply put, parody is mocking a fictional work (and is protected under Fair Use in the USA); satire is the mocking of real people or institutions (which isn't protected by Fair Use). –  evilsoup Jun 30 '14 at 8:17
@evilsoup: I believe you should recheck the difference between satire and parody. Fictional/real definitely isn't a part of the distinction. Also, Fair Use protection is uncertain/unlikely in case of using copyrighted works in satire on a subject not originally covered by these works (e.g. using copyrighted music in a clip directed at some politician). A satire on these specific works and their themes is a variant of parody, and protected. "Use (c)X to taunt Y" vs "taunt (c)Y". –  SF. Jun 30 '14 at 9:20

1 Answer 1

I am not a lawyer. This is based on my understanding of U.S. copyright laws.

Any part of B's story which is unique to B is, I believe, the property of B. So if B is writing an X-Files fanfic about Mulder, Scully, and an original character who is a female agent for the Canadian Security Intelligence Service, and C writes a parody-bordering-on-plagiarism about Mulder, Scully, and Jack St. Georgina, then B probably has legs to go after C if the story, "Wyverns of the Heart," significantly lifts text from B's work.

If C's story is merely parody, then it falls under the same Fair Use rules as any other parody.

I believe that since the original character is an invention of B, B actually does have the copyright to that character, and B does have the copyright to the original story, plot, and text. So there might be grounds for a plagiarism claim.

Since B's work is "transformative" of A's copyrighted work, I think B would be hard-pressed to find a lawyer willing to take the case on. But the possibility exists.

You are probably right in that you can't be sued. However, I do wonder why you're expending so much energy trolling these people.

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The reason is usually fridge horror. I'm a total sucker for happy, sunny, cheerful stories with good, satisfying happy-ending. I'm a little too observant though, and at times a popularly liked story really brushes me a very wrong way, due to author's error, negligence, omission, taking a cheap shortcut, not foreseeing some consequences. This is my way of posting criticism on these, I simply take the point where the story left off and turn the horror up to eleven. Way more efficient than posting some 'what-if' comment. –  SF. Jun 19 '14 at 18:45

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