Wednesday, November 14, 2018

Am I Allowed to Do This? On Zines and Anthologies

I recently got in copies of The Hybrid, the Twelfth Doctor and Clara zine created by my friend/collaborator/kouhai Ginger to which I contributed a story. The proceeds go completely to charity. I've been in several other collections like this.

I'm also learning a bit more at zine culture as it stands now. For those who know the word but feel a little confused, modern zines aren't quite like the mimeographed goodness fans sent around before the Internet was a household tool. These are mini-books, predominantly (if not entirely) art, based on a fandom or a subset of a fandom (or sometimes a theme combined with a fandom). Many are done for profit, some are done for charity.

And just as with a lot of fan-created books I see going around, I see some interesting hopping back and forth over legality lines. I'm not a lawyer by any stretch, but I work in an industry where I've both sent and received C&Ds.

The "creation" side of fandom is a hugely important one nowadays, but the line between propagating fanworks and stepping on creator toes can be a blurry one. So where is that line? I can't define it for you absolutely, nor will I claim to, but I can at least help a little.

Bear in mind I'm not talking about distributing fanfiction, fanart, or other derivative works freely online—that's something else entirely, and I always encourage respectful fan creations provided they aren't in some way defaming or harming the original product. This refers to cases in which money changes hands, especially when there is a physical product.

Note: Copyright holders have final say.

Before anything else, I should clarify that everything that follows falls flat in the face of a cease and desist, and nothing is more important than what a creator says. Even if you create a completely respectful fanwork, with any funds raised going to the creator's charity of choice, if the creator and/or copyright holder(s) ask you to stop, you stop.

And that's not a tall ask. When you are taking money for a creation derivative of someone else's property, you are—for lack of a better term—in their lane. Creating fan works is a wonderful and positive thing, but what happens to them once they are created is the key.

Therefore, anything I say here always falls in the face of a Cease and Desist, or the rules of any particular venue or service.

So with that said... here are a few ways to figure out if you should be doing that anthology or zine:

1. Has the creator expressly asked that fan works not be sold?

Many creators, especially indie creators, will put out a specific request to their fan base that derivative works not be sold. The Welcome to Night Vale team, for example, loves fan art, but does not want prints of Cecil and co. sold at events.

Not every creator will do this. Those with large fan bases and small pockets tend to be more vocal about it, for obvious reasons. But larger companies—for example, the creators of the Love Live! franchise—will take the time to get very specific about what they will and won't allow when it comes to fan and doujin goods.

This is more common in Japan, where massive events like Comiket are devoted solely to the selling of doujin goods with a heavy percentage of them being based on existing IPs. In those cases, you're more likely to see a yes/no checklist: for example, you may sell prints but not books, keychains but not fan games, etc. They may also have specific guidelines concerning charity publications.

So, before anything else, the best thing to do is check if the rights-holder has flat-out said "no" to a certain kind of thing. And speaking as we were of smaller creators...

2. Is your fan creation likely to dent the income of the creator?

One of the major reasons sales of fan goods go unchecked by (some) larger companies is there's no great financial threat. If the fan creators aren't actively re-routing business away from the rights holders, many will choose to look the other way, provided the fan creations aren't actually duplicating something actually being offered.

Speaking again of smaller-time creators, it's generally not the "done thing" to make money off fan works based on their properties, even if they didn't say you can't. (Obviously if they've said knock yourself out, then knock yourself out.) Things like Undertale and Doki Doki Literature Club are highly popular with a major fan base, but Toby Fox and Dan Salvato are (with the greatest respect) likely still at a stage where if enough people offered fan goods of their properties for sale, their own income might take a hit.

The only problem with this particular mentality, and one I realize and still admittedly struggle with, is it creates a line where it becomes "okay" to not go hands-off. For example: where do games like Bendy and the Ink Machine and Five Nights at Freddy's fall? Both are indie hits, but both have achieved mainstream success and have official manufactured merchandise. (At the same time, The Meatly has offered outlets for fan creations to become canonical game content, thus offsetting that concern a little.) The idea of there being an invisible line beyond which fans can go to town selling their versions of your work is not an appealing one... more a thing to weigh than a thing to calculate.

3. Does your work go directly against the desires and image of the creator?

Back on the topic of Love Live!, there's another sort of fan work that the IP holders really do not want: explicit sexual content. And that's understandable because these are schoolgirls and that's illegal. That's not something that any creator with any sense wants to be associated with, even if the work is clearly fan-created.

This is not to say that anything out-of-character or not in line with canon is somehow horrible. This would be along the lines of depicting explicit violence, gore, or sex in conjunction with an all-ages property. (Unless the IP holders say it's okay. I mean, Junji Ito did some crazy Pok√©mon shit so you know anything's possible.)

This is actually a fairly hard-line easy one: if it's not part of the content of the original creation and it would be illegal in real life, probably don't do it.

Note too, though, that companies with any degree of brand management may not want their IP depicted in certain ways, even if the content isn't explicit. This is actually one of the main reasons people get C&D letters: they are creating something for the brand without that brand's guidance, which means literally anything could go out there. And even if most people are smart enough to know the difference between fan and official content, sometimes fan work is just that on point, and other times people really just don't know. A copyright notice from an IP holder may well be them wanting to retain that control just in case.

4. Where will the money be going?

This single point is often the line between a company looking the other way and that same company coming down on you with a sternly-worded letter. Specifically, charity zines and anthologies with a limited print run are more likely to get a hand-wave than a for-profit publication available for constant sale.

Obviously, this doesn't mean a creator is obligated to let you do a charity publication, even if it's going to their favorite charity, even if you stick to every letter of the unwritten law. It is simply a thing that some choose to allow or overlook based on the transient nature of the publication and the fact that the money is going to a good cause.

If you make a zine or anthology for profit, with the money going to you and your writers, and the content is not your own—you are in for a largely bad time. (Additionally, once you split up the profits, everyone will only make a pittance anyway, so it's sticking your neck out for very little gain.)

5. Are the rights holders litigious as heck?

Okay, so you're doing a limited-run anthology. All proceeds are going to the creator's favorite charity, which they are publicly known for representing. The anthology is professionally put together, and every story in it is well-written and respectful to the source. All of that means nothing if you are knowingly using content from a rights holder that makes it rain C&Ds.

I know I said earlier that all of this falls in the face of what the creator wants, but this is an additional issue. It's one thing to work within a fandom that is by and large friendly to fan creations, and another entirely to try to sell fan work from someone that everyone knows is going to come and get you. Save yourself the pain. Don't do it.

Got it? Good. A Few tips.

Right. So. You're ready to roll with a zine for charity, the creator and rights holders are notably chill with charity fan works, and your content isn't sketchy. That's great. A few more little notes to throw into the mix as you work.

Don't use official logos. And be very, very careful of derivative logos/typefaces. One of the main things you need to do in good faith is make sure that what you're putting out cannot be mistaken for official output by the casual observer. It's possible to evoke the property you're working from without actually using or mimicking their branding.

Put "fan" or "charity" somewhere on the cover. Along with the above, put it in words. It sounds like I'm asking you to idiot-proof this, and that's because I am. It doesn't have to be in giant letters, but it should be there and accessible—anything so that it's in print that this didn't come down from the source.

Either sell at cost or donate to charity. No, for real. Just do yourself that favor. You'll thank me.

Limit sales to a certain number or time frame. Transience, as I said above, is part of what makes many rights-holders not mind zines and anthologies. Limit sales to a certain number of copies, or hold pre-sales for a set amount of time. In other words, make it so there's a point where money stops coming in for the publication.

If you are asked to pull your zine, do so. The whole point of this post isn't to teach you how to outsmart a rights holder or creator for profit; it's to help you go about the creation of fan content respectfully. And the most respectful thing a fan can do is accept when a creator feels they have overstepped a line. No matter how strong your fandom, how good your work, or what have you, no creator is obligated to let you distribute fan works of their creation.

Now go out and make. 

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