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Paid Fan Fiction

gubernatis_kevin
Active Member
Kevin G Member Since: Apr 15, 2020
1 of 22

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.

egaruth
Moderator
Nikola S Moderator Member Since: Jul 2, 2020
2 of 22

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

Untitled
gubernatis_kevin
Active Member
Kevin G Member Since: Apr 15, 2020
3 of 22

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.

egaruth
Moderator
Nikola S Moderator Member Since: Jul 2, 2020
4 of 22

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

Untitled
petra_r
Community Guru
Petra R Member Since: Aug 3, 2011
5 of 22

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 Guru
Viacheslav K Member Since: Sep 9, 2015
6 of 22

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.

gubernatis_kevin
Active Member
Kevin G Member Since: Apr 15, 2020
7 of 22

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 Guru
Preston H Member Since: Nov 24, 2014
8 of 22

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."

prestonhunter
Community Guru
Preston H Member Since: Nov 24, 2014
BEST ANSWER
9 of 22

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

gubernatis_kevin
Active Member
Kevin G Member Since: Apr 15, 2020
10 of 22

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? 

 

 

 

 

 

 

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