The Perils of Fan Comics

A recent discussion on The Webcomic Beacon (note to self: it is not spelled ‘bacon’, lovely as some might think that is) has had me thinking about the issue of fan comics (and fanfiction in general, by extension). Love them or hate them, there are many issues surrounding making a fan comic that those who are interested in making them should know; and it also has the added advantage of bringing to the forefront some issues that those who create wholly new fiction should be aware of, too.

It should go without saying that because I am in Britain, this will mainly focus on British law. However, the laws being discussed here are based on so many international treaties that I can’t even begin to shake a stick at them, so some of the fundamentals will be relevant to anyone not lucky enough to be living and working on our wonderful collection of rainy little islands.

What is a Fan Comic?

At its heart, a fan comic is a comic created by a fan of one or more intellectual properties (such as Star Trek, or Doctor Who). It can be a new story set in the main universe; a re-imagining of the story because the fan thinks the writer(s) took it in the wrong direction; or some combination of the two. The most important defining feature of a fan comic is that it uses someone else’s intellectual property, and this is where the problems start.

The Copyright Infringement Problem

An episode of the webcomic 'Venus Ascending'

Venus Ascending is an example of a fan comic created with the permission of the original copyright holder.

The first problem that comes to mind once the fact that rabid fanboys will stomp all over you if you seem like you’re not giving the original franchise the respect it deserves (by which I mean you’re not writing the story the way they think it should be written) is the issue of copyright. You’re using someone else’s characters, locations and universe, so unless you have permission, you’re breaking the law.

Section 1 of the Copyright, Designs and Patents Act 1988 states that copyright “is a property right” covering, amongst other things, literary and artistic works, including their “typographical arrangement” in publication.

In short, copyright is a form of property; where ownership isn’t so much material as it is intangible: owning a piece of paper with Captain Jawbone drawn on it does not mean one owns the Captain Jawbone character, for example. The drawing may be yours but unless they sign the rights over in a contract, the character himself still belongs to the original creator.

What does this mean for your fan comic? Basically, unless you’ve got the go-ahead from the property’s owner, it means you’re using someone else’s property without their permission. The law isn’t very favourable on this issue, so it’s worth remembering that if the rights owner comes knocking, you’re as likely to win a court battle over copyright infringement as you are to get away with it were they to drag you into court for ‘borrowing’ their car.

The fact is that copyright is the only real form of ownership of an intellectual property. Once a work is created, the only way the owner can make any revenue from it is by producing copies of it; and when a copyright infringer comes along, they either take away some of the potential uses of that property from the creator (remember that there are Star Trek comics out there already, for example) or they make copies of existing uses of the work, which potentially reduces the legitimate market for the original owner’s versions.

I’m not saying copyright equals theft here because I don’t want to get into that argument right now. Suffice to say that if you deprive someone of their right to use their property in any way they may wish, don’t get all huffy when they turn up and ask you to stop.

The Issue of Plagiarism

At its most fundamental level, plagiarism is where you pass off someone else’s work as your own. For the most part, this is not something a fan comic creator is going to have to worry about. Even though you’re using an off the shelf universe (and probably some pre-made characters, too), it will be unlikely that you’re using existing scripts. The issue comes up sometimes, however; because plagiarism can mix with copyright infringement.

The famous case brought against Random House over The Da Vinci Code went a long way toward clarifying the law on copyright infringement in general, and plagiarism in particular, by setting out two conditions that must be met if plagiarism is to be proved. These are:

  1. that material from the original source is found in the newer work; and
  2. that this material constitutes a substantial part of the original work.

I discussed what is mean by “a substantial part” in this blog post on the UK Law Review so I’m not going to go into loads of detail about it here. It will suffice to say that it covers the expression of ideas, and it is possible to plagiarise something without copying a single word or brushstroke from the original. In essence, if your comic contains warrior monks with magic powers and laser swords, George Lucas may come knocking and he might even have a case with him.

So where does this leave your fan comic? Well, you’re most likely to fall foul of the law on plagiarism if you fall into the second camp of fan comic creation; namely that you’re doing the comic in the first place because you believe the original writers got some elements of the story wrong and you want to put them right.

If you’re using an existing story as the basis for your own tale and are keeping to the original for some, or most, of the comic; you’re likely to fall foul of this part of the law. It’s therefore best to steer clear of this kind of storytelling, and instead leave your views on where the original went wrong for your blog.

Trademarks and Passing Off

Finally, there is the issue of “passing off”; a subset of trademark law. Trademarks are symbols businesses use to identify themselves or their products, so people know the product is a) genuine, and b) from Company X. Artists use trademarks too, only they’re usually in the form of a signature or some kind of ‘signature mark’.

Zoe Robinson's signature mark

Signature marks are a way of identifying an artist as the creator of a work without needing their name to be on it

Trademarks aren’t necessarily limited to symbols, however. Because the term covers “graphical representations” in general, they will also cover such things as the look of a Starfleet uniform (the Star Trek comm badges in particular), or a franchise’s logo. If you’re old enough to remember Masters of the Universe then you’ll probably remember that almost every character’s name either had the ‘trademark’ or ‘registered trademark’ symbols after it on their various packagings.

So what does this mean for your comic? Well, Halsbury’s Laws of England (which is pretty much the ‘go to guy’ of English legal studies) tells us that “a person is liable in tort” if they represent their goods and services as being those of another person during a “business transaction”, in “a manner calculated to deceive members of the public into thinking that the goods and services are those” of the other party, or an associated group.

At first instance, this probably does not look like something a webcomic creator would need to worry about. After all, it’s not like you’re actually going to pretend to be Paramount Studios when creating your Star Trek comic, are you? Well, unfortunately that’s not what the law usually takes into account when deciding whether you “calculated to deceive” the public.

The law is very strict on what it means by deception, and given that your webcomic will be “goods or services” (and the less said about trying to sell a book of your comic – in short just don’t do it or they’ll nail your arse to the Moon), the simple fact that you’re presenting new Star Trek (or whatever) stories means you’ll be opening yourself up to a potential lawsuit even if the court does eventually find in your favour. Do you want to spend a few weeks in court? I wouldn’t.

So where does this leave us? Essentially, it leaves any creator of a fan comic in a precarious situation. Some copyright owners are happy to have their fans spread the word by playing in their universes, and some aren’t. Paramount, for example, doesn’t like people playing with Star Trek and can be rather heavy-handed in its treatment of fan fiction. It’s therefore worth contacting the copyright holder and asking permission to produce a fan comic before starting.

The likelihood is that they will say no, so what’s the way forward when that happens? Well, it doesn’t mean you can’t still tell the story; albeit with a few changes. Unless you’re wanting to tell a story so closely tied to the original work that it will fall foul of the plagiarism legislation, the chances are the story will survive a little tinkering.

Take your story and put it in a new setting, one you’ve invented out of whole cloth. It’s not as hard as you might think, and it gives you far more creative freedom than building in someone else’s sandbox would (you’ll get less flack from the rabid fanboys, for a start).

Just as all modern superheroes can trace their origins back to Superman, there’s nothing wrong with your comic being inspired by the series you’re so fond of. So go and put together your own crew of plucky adventurers and set forth on a lawyer-proof adventure of your very own.

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