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gubernatis_kevin
Community Member

Paid Fan Fiction

I've seen at least three job postings this week talking about the development of a Web based novel reader app, that features a wide range of genres, many of which I'd enjoy getting paid to write in, but one that gave me pause: Fan Fiction. 

 

The posting seems to be strongly encouraging of the generation of fan fiction content by potential freelancers and the distribution of it via this app. This concerns me, because fan fiction in general is a legally hazy area when the writers AREN'T trying to profit from it, and when they are, it's just straight up pragiarism and illegal.

 

My own personal frustrations as a writer with fan fiction not withstanding, I'm feeling like this is something that ought to be flagged, and I made the attempt to do so, but there was some kind of glitch and the site would not allow me to write in an explanation for some reason. That's when I noticed that the poster was from China, and I'd come to understand that copywrite law there is almost non-existant when compared to the U.S. I also know that Upwork itself is a Chinese held company, or at least I believe that it is.

 

My main question is simple: Should I even bother going through the process of flagging these when I see them, or should I just ignore them? Is this something that Upwork even cares about?  All answers are appreciated.

 

Thank you and have a wonderful day.

ACCEPTED SOLUTION

re: "...it's just straight up plagiarism and illegal."

 

Fan fiction is not plagiarism.

 

Fan fiction is not "straight up illegal."

 

There are indeed copyright issues associated with fan fiction.

Fan fiction may or may not be a violation of copyright.

 

But it is only "plagiarism" if somebody is directly copying someone else's original work. By definition, that is not what fan fiction is. Fan fiction is classified as "derivative work."

View solution in original post

21 REPLIES 21
egaruth
Moderator
Moderator

Hi Kevin,

 

Thank you for reaching out to us and sharing your concern. Could you please click on my name and send me a PM with more information about the job posts you are referring to? Please add the link to the job post so that we can look into this further and assist you accordingly. 

 

Thank you,

~ Nikola
Upwork

Hey Nikola,

 

I appreciate you reaching out as well. I'm sorry to say though that, after spending about 20 minutes searching for the post in question, I can't find it now. I even keyword searched "fan fiction" and couldn't find anything. 

 

I suppose it could have been taken down, or rather they could have, as I saw about three that were clearly from the same job poster. 

 

All of that said, it's a simple matter. Either it's something that I should flag, in which case I will, or it's something I shouldn't, in which case I will ignore it. I'm not necessarily trying to jam anyone up. The mention OF fan fiction in the posting was far from the entire post, so it may simply be an oversight.

 

Thanks again for your time.

Hi Kevin,

 

Thank you for following up. I would like to clarify that you should flag these jobs if you feel that they violate Upwork Terms of Service. You can let us know if a Terms of Service violation has happened by using the Flag as Inappropriate option throughout the platform. You can learn more about user reporting here. You can always add information that would help our team in reviewing the job post.

 

Thank you,

~ Nikola
Upwork
petra_r
Community Member


Kevin G wrote:

I also know that Upwork itself is a Chinese held company


It certainly is no such thing.

Upwork is US based and has been from day one.

 


2a05aa63
Community Member

Fanfiction is not illegal. It only contributes more to the franchise popularity. Unless they massproduce it and try to sell it (which is something you aren't responsible for). Same goes for artists that draw copyrighted characters.

It's a gray area. If you don't want to work in it - ignore it and move on. There are far worse kind of job posts out there.

I respect your perspective on that, but I definitely disagree. I mean, you kind of clearly outline how it CAN be illegal, even after saying that it isn't, and I AM responsible for it if I take a job that PAYS me to write the fiction. 

 

It IS a gray area, I will agree with that, only in so far as indicating what is being done with the work itself. Honestly, it's easily prosecutable in most cases, but most IP holders don't act on it, because it either, as you've stated, contributes to the franchise popularity, or is simply not worth the hassle, or expense. 

 

I'll also admit freely that I may have an emotional stake in this, because the idea of people using my characters for such work is bothersome. A lot of other writers couldn't care less, some others, care a LOT more. 

 

Regardless, you're very, very right - their are WAY worse job postings out there.

 

Thanks for your perspective and time.

prestonhunter
Community Member

Kevin:

Here is what I think:

 

If you don't like fan fiction jobs, then ignore them.

 

Upwork does not ban fan fiction jobs.

 

It is inappropriate for freelancers to flag job postings that do not violate Upwork TOS and which do not fall into one of the preset flagging categories.

 

It is inappropriate for freelancers to flag job postings simply because the job posting is not personally acceptable to an individual freelancer.

 

Fan fiction is not necessarily illegal. Much fan fiction is explicitly allowed under copyright law. I can write or commission new Zorro, Robin Hood or Dracula stories as much as I want, and it is completely legal. I can even hire writers to write stories in which Dracula teams up with Robin Hood and Zorro, and this is totally legal no matter how objectionable you think this is.

 

In addition to the fact that there are no limits to derivative works based on public domain characters, many copyright holders explicitly allow fan fiction and have written policies outlining how people may use their intellectual property in fan fiction. Also, there are legal uses of characters and concepts that do not require authorization, including but not limited to fair use, parody, satire, critical scholarship, etc. Many copyright owners allow fan fiction with written permit, and many explicitly allow fan fiction without written permission as long as it follows certain guidelines.

 

If you see job postings for fan fiction, then you should not flag the job postings. If you think that the job posting violates copyright restrictions, then you are welcome to work with copyright attorneys and investigate the matter on your own, and possibly report the job posting to the copyright owners, but you should not involve Upwork in that. Upwork is not the "fan fiction police."

re: "...it's just straight up plagiarism and illegal."

 

Fan fiction is not plagiarism.

 

Fan fiction is not "straight up illegal."

 

There are indeed copyright issues associated with fan fiction.

Fan fiction may or may not be a violation of copyright.

 

But it is only "plagiarism" if somebody is directly copying someone else's original work. By definition, that is not what fan fiction is. Fan fiction is classified as "derivative work."

Hey Preston,

 

I knew that I'd likely be hearing from you on this one.

 

I was unaware that Upwork didn't have a problem with Fan Fiction, because it IS, a legally gray area that I would expect most companies would wish to avoid.

 

I am well aware that it is innappropriate for me to flag a post because I find it offensive, or morally questionable, which I already kind of stated in my post...which is the reason for the post in the first place, sort of.

 

So, Regarding the legallity of Fan Fiction. First, it is NOT simply, "Derivative Work."

 

Fan Fiction, as it is contemporarily understood, is described as follows:

 

"Fan fiction or fanfiction (also abbreviated to fan fic, fanfic, fic or ff) is fictional writing written in an amateur capacity as fans, unauthorized by, but based on an existing work of fiction. The author uses copyrighted characters, settings, or other intellectual properties from the original creator(s) as a basis for their writing. Fan fiction ranges from a couple of sentences to an entire novel, and fans can both keep the creator's characters and settings and/or add their own. It is a form of fan labor. Fan fiction can be based on any fictional (and sometimes non-fictional) subject. Common bases for fan fiction include novels, movies, musical groups, cartoons, anime, manga, and video games."

 

Note the terms, "Existing Work", "Copyrighted", and "Unauthorized"

 

With respect to Zorro, Dracula, and Robin Hood...First off, all of those characters are based, themselves, heavily on historic figures, and could be construed as being simply representative of those figures. Second, they are ALL characters that exist within the public domain, which is to say, they do not fall under U.S. or any other copyright. Anyone can use those characters, themes, settings and anything else associated with their stories freely and completely as they wish, because they are in the public domain. So, writing stories about these characters, WOULDN'T be considered Fan Fiction at all.

 

But you knew that already, as you mentioned that there are no limitations on derivative works based on PUBLIC DOMAIN characters...so why did you even mention those characters in the first place? 

 

Yes, many copyright holders absolutely allow for the use of their IP to any and all who wish to, but still, MANY others, myself included, ABSOLUTELY do not. Which is a very non gray, clear cut situation. If an creator allows for the use of their characters, or work by fans, then there is no issue, if a creator, or IP holder does not, then there probably is an issue.

 

Parody, and Satire are also very slippery slopes when it comes to Copyright law, and have absolutely been prosecuted in a court of law. Critical scholarship is, of course, another of the few instances of copyright being a non-issue, but it also inherently is a non-issuee since no one is going to be selling, distributing, or profiting from something created from critical scholarship, are they? No. So WHY bring that up?

 

I am WELL aware that Upwork is not "The Fan Fiction Police", and it's incredibly rude, and flippant of you to suggest that I would be trying to urge them to punish anyone for something, just because "I" have a problem with it. I am not doing that, nor would I.

 

You may not LIKE that it's a legally complicated area, but it absolutely is, and most companies usually tend to AVOID legally complciated areas, don't they? Of course they do, because who wants the hassle? I'm not trying to get Upwork to DO anything, I'm asking if this is something Upwork even cares about, and base on your response, I understand that you feel that that I should not flag the job posting in question, but I've just been asked by a rep to link it, which I have been unable to do, as it seems that the job post has been taken down.

 

So...maybe even though YOU don't feel that it's an issue...Upwork might? 

 

 

 

 

 

 

Kevin:
Thank you for taking the time to describe your thoughts on this subject.

Clearly this is a topic that you feel passionately about and have put some thought into.

 

If you are wondering about what I think Upwork thinks about this, or if you are wondering about the source of my perspective on this... I am not thinking about this topic as being distinct from other similar matters.

 

Voltaire said "il meglio è nemico del bene", which we commonly quote today using the English phrase "The perfect is the enemy of the good."

 

I feel like your perspective represents someone asking Upwork to be perfect, while I am asking Upwork to be good.

 

I don't believe Upwork can be good if we require it to be perfect.

 

I often think of Upwork as a site that clients use to commission developers to create websites and mobile apps... and yes it can be used for other things as well. If I picture Upwork as a person, he is working hard to make sure that freelancers can log time using the time tracker, and clients can view work diaries and make payments to freelancers... and once in a while somebody comes along and asks him about obscure stuff that contributes very little to Upwork's earnings and has nothing to do with web development or mobile apps (like water rights in Tanzania or HIPAA medical privacy concerns or exporting baby formula out of Germany or fan fiction)... and he thinks to himself: "Can't we all just get along?"

 

I don't say any of this to diminish your concern for this topic. I say this to explain my perspective in general, and what I imagine Upwork's perspective is.


Preston H wrote:

I say this to explain my perspective in general, and what I imagine Upwork's perspective is.


If the OP sees a job post for fan fiction and he knows for a fact that the original work isn't in the public domain, then I think that it ought to be flagged. It's in Upwork's terms of service that job posts shouldn't "violate the intellectual property rights, such as and including copyrights, of another person, entity, service, product, or website", so there's no need for you to "imagine" their perspective.

 

https://www.upwork.com/legal#examplesof 

 

And if you want to base any further posts on facts rather than your own personal opinion, I suggest Googling "is fan fiction illegal":

 

"Fanfiction is defined by the use of characters and expression from an original creative work and the creation of derivative works, all of which is illegal under current copyright law (McCardle, 2003)."

 

re: "If the OP sees a job post for fan fiction and he knows for a fact that the original work isn't in the public domain, then I think that it ought to be flagged."

 

Speaking as an Upwork user, and not a representative of Upwork:

He should not flag job postings based purely on his thought that they are fan fiction and involve characters that aren't in the public domain.

 

Before flagging fan fiction postings, he needs to first make sure that these job postings are not legal, allowable projects. That includes checking that the particular intellectual property owner does not allow fan fiction using its characters. Many do.

 

He also needs to to make sure that the nature of the project itself doesn't constitute an allowable use, such as fair use, satire, parody, scholarly criticism, etc. 

 

Fan fiction using public domain fictional character such as the Wizard of Oz, Alice in Wonderland, the Count of Monte Cristo is legal and fan fiction using non-public domain characters is also legal AND allowed by Upwork TOS under many circumstances.

 

There is no violation of intellectual property rights when a job poster has permission to use a copyright holder's intellectual property.

 

re: "And if you want to base any further posts on facts rather than your own personal opinion, I suggest Googling 'is fan fiction illegal'"

 

You yourself should do so, so that you can acquire the relevant information on this topic.

 

"The legality of fanfiction isn't very controversial. As a matter of copyright and trademark law, the sort of noncommercial, transformative works that fans make tend to fit quite well into the definitions of non-infringing fair use," says Betsy Rosenblatt, a law professor teaching intellectual property law at U.C. Davis School of Law... "non-commercial, transformative fan fiction does not infringe intellectual property laws." It's also what the courts say. No U.S. court has ever held that a noncommercial, transformative fanwork infringed copyright... There oftentimes happen to be rules online, especially when it comes to larger properties. With the rise in fanworks of all sorts, many content owners have been proactive in providing guidelines. "Hasbro and Star Trek have guidelines on the internet that set forth what fans can do... While those guidelines are often more restrictive than what would be permitted under U.S. Fair Use laws, they're a good anxiety-reducer for fans who want to be able to crowdfund a project."

 

Maybe this is why Upwork ToS makes no mention of fan fiction:

https://www.upwork.com/legal

 

https://faculty.utulsa.edu/faculty/betsy-rosenblatt/

 

We often talk about how Upwork supports Amazon.com's ToS (such as in disallowing paid product reviews). Amazon.com's Kindle Worlds (2013 - 2018) was a publisher service "devoted to providing a commercial venue for fan fiction." Fan fiction authors earned "35% of net sales for works of 10,000 words or more and 20% for short fiction ranging from 5000 to 10,000 words." (https://en.wikipedia.org/wiki/Kindle_Worlds , https://www.amazon.com/gp/feature.html?ie=UTF8&docId=1001197421)

 

For people interested in reading more about this topic, and not just its legal aspects, there are a lot of books available, including Jamison's "Fic: Why Fan Fiction is Taking Over the World":

https://www.amazon.com/Fic-Fanfiction-Taking-Over-World-ebook/dp/B00GF2SOR8

 

Screen Shot 2021-07-18 at 6.53.53 AM.png


Preston H wrote:

re: "If the OP sees a job post for fan fiction and he knows for a fact that the original work isn't in the public domain, then I think that it ought to be flagged."

 

Speaking as an Upwork user, and not a representative of Upwork:

He should not flag job postings based purely on his thought that they are fan fiction and involve characters that aren't in the public domain.

 

Before flagging fan fiction postings, he needs to first make sure that these job postings are not legal, allowable projects. That includes checking that the particular intellectual property owner does not allow fan fiction using its characters. Many do.

 

He also needs to to make sure that the nature of the project itself doesn't constitute an allowable use, such as fair use, satire, parody, scholarly criticism, etc. 

 

Fan fiction using public domain fictional character such as the Wizard of Oz, Alice in Wonderland, the Count of Monte Cristo is legal and fan fiction using non-public domain characters is also legal AND allowed by Upwork TOS under many circumstances.

 

There is no violation of intellectual property rights when a job poster has permission to use a copyright holder's intellectual property.

 

re: "And if you want to base any further posts on facts rather than your own personal opinion, I suggest Googling 'is fan fiction illegal'"

 

You yourself should do so, so that you can acquire the relevant information on this topic.


Preston, c'mon... We all get that you would prefer nobody flag anything that's not the job post equivalent of a felony and that clients never request refunds and that everybody hire ten people and pick the best one and nobody bother CS. The fact is, UW is more than just a place to hire app developers and there are lots of FLs and clients using it in lots of different ways according to various best practices that pertain to their professional disciplines and project needs.

 

I use the flag function to call UW's attention to any job post I believe to be in violation of the ToS, any post I suspect to be in violation, and any post I consider to fall in a gray area that UW needs to address. It's not my job to ascertain beyond the shadow of a doubt that a post is in violation, that's UW's responsibility. It's my civic duty to assist by calling attention to ones they should check.

 

Re. the fan fiction jobs, it seems to me the original material being in the public domain is not the only issue. Isn't a defining characteristic of fan fiction that the creator not profit from it but simply create it as an homage to the original work? Why would someone hire someone else to create fan fiction unless they plan to sell it? And if they do, and if hte original work is not in the public domain, then it's not fan fiction but plagiarism. As OP said to start with, it seems to present a gray area in the context of UW and a case can be made it warrants UW's attention.

 

 

re: "Isn't a defining characteristic of fan fiction that the creator not profit from it but simply create it as an homage to the original work?"

 

There's a lot more to it than that.

 

But, yes, I think that IS one of the defining characteristics of fan fiction.

 

re: "Why would someone hire someone else to create fan fiction unless they plan to sell it?"

 

There are many reasons, including personal enjoyment.

 

Most of the work I commission on Upwork is NOT something I hire freelancers to do in order to sell it. This includes the Upwork projects I have PERSONALLY posted on Upwork which involve the use of copyrighted characters, which jobs were legal AND allowed by Upwork. As a client, I probably have more firsthand experience in this area than any of the other people posting in this thread.

 

Furthermore, as a freelancer who has completed over 300 jobs on Upwork, I can report that a significant proportion of these projects were NOT about selling anything. There are many reasons that Upwork clients use the platform to hire freelancers to do the kind of work that I do (database design/database-based programming). And there are many reasons why clients hire people to write fan fiction.

 

Do some clients hire freelancers to help them with fan fiction and the client's intention is to profit off of that work? I'm sure that is true. And that may be perfectly legal, and allowed under Upwork ToS. (But that doesn't mean that ALL for-profit fan fiction is legal.)

 

I believe that you mean well, but you are applying some common misunderstandings about the legality of fan fiction.

 

I don't want to see somebody flagging job posts in a certain category when in all likelihood the overwhelming majority of them are completely legal under U.S. law and allowable under Upwork ToS.

You haven't done enough research, Preston. Yes, fan fiction is okay IF the person has the author's permission or IF it could be considered a "transformative work" or IF it meets some of the other limited circumstances that you've mentioned, but you're not in any position to say that all or even most Upwork projects fall into these categories. It does NOT have to be sold for profit in order to be copyright infringement. Upwork has a real problem with copyright infringement on its website in general, and ignoring the problem is no solution, in my opinion. Just because it isn't a problem for you personally, doesn't mean that you get to shut down all discussion on the matter.

 

It seems to me (also only my opinion) that if it's a gray area and Upwork isn't in a position to make a legal decision about each individual case, it would be better to err on the side of caution. Take Upwork's policy against "adult content" of any kind. This can run the gamut of everything from ghostwriting erotic fiction or retouching arty/tasteful nude photos, to kiddie porn - if the job post contains words like "nude" or "sex" or whatever, it can get flagged and taken down. It doesn't even have to be illegal - it's just Upwork's policy and that's that. They don't have to make judgments about each individual case. I don't see why a similar policy couldn't also apply when job posts contain words or phrases like "remove the watermarks from these photos", "replicate this website content exactly", "trace this logo" or yes, "write fan fiction". It's possible that not all of these jobs are copyright infringement, but you can bet your sweet life that the vast majority of them are, and Upwork doesn't do nearly enough to tackle this issue.


Christine A wrote:

 Just because it isn't a problem for you personally, doesn't mean that you get to shut down all discussion on the matter.


Or to declare that Upwork won't take down any Fan Fiction jobs, or to determine under which circumstances another freelancer may or may not flag something.

re: "Just because it isn't a problem for you personally, doesn't mean that you get to shut down all discussion on the matter."

 

I completely agree.

 

re: "Or to declare that Upwork won't take down any Fan Fiction jobs, or to determine under which circumstances another freelancer may or may not flag something."

 

You are correct. I don't make those decisions.

 

I have advocated for my position: That the original poster should not flag fan fiction job postings. I believe that the vast majority of them are legal and allowable under Upwork ToS.

 

Other people posting in this thread have expressed their belief that most fan fiction job postings are either not legal and/or not allowable under Upwork ToS. And they have expressed their opinion that it is acceptable to flag such job postings.

 

As already noted, I am simply an Upwork user, and not an official Upwork representative.

re: "I've seen at least three job postings this week talking about the development of a Web based novel reader app, that features a wide range of genres, many of which I'd enjoy getting paid to write in, but one that gave me pause: Fan Fiction."

 

Kind of like Amazon.com's Kindle Worlds (Amazon.com's platform for commercially-sold fan fiction).

 

When Amazon.com shut down Kindle Worlds in August 2018, they told that platorm's users:

 

"For five years, Kindle Worlds has been thriving, engaging writers and readers who enjoy writing in one another’s worlds, and we’re proud of the work we’ve done together. While we are closing Kindle Worlds, Amazon is constantly innovating on behalf of our authors and readers, and we look forward to continuing to do so."

 

Upwork, also, can continue to be a place utilized effectively by the fan fiction community.

Re: "You are correct. I don't make those decisions."

 

No, you don't, but you still told ME that it was innappropriate for me to flag the job post. Instead of telling me the truth, which is that the ToS specifically condemns copyright infringement and then expressing your own views on it, you tried to bully me into sharing your opinion by insisting upon it with an air of authority. At the end of the day, these forums are about being of service to the community, and you really haven't been from my perspective, which doesn't make you much of a Community Guru in my own opinion.

Hi All,

 

Thank you all for being a part of this discussion. However, we would like to ask you to be respectful toward other community members even if your opinions differ. Please, be mindful of the Community Guidelines and avoid making personal attacks.

 

Thank you!

~ Nikola
Upwork

Nikola,

 

Thanks for pointing that out, and again, thanks for your time. I'm not going to be posting anything else on this thread at all, as I've gleaned what I needed assistance with from you. So there shouldn't be any further issues. If I have any further queries like this, I'm going to simply contact Upwork directly. 

 

Kevin

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