Can a mock-magazine with fictitious content count legally as fan fiction?

Question

I contribute to a small website, well, one that's got Photoshop of various things. - it's a small obscure site with only a few users.

Recently I've been learning InDesign and Quark Xpress for digital publishing, and made a few of my own publications - with real-life titles, even though the content is fictitious - my own versions of cars, and fictitious towns with dealers.

The content is fictitious (e.g. no such places as Esfolk - a parody of Norfolk/Suffolk, or Marlholme etc.).

There's even fictitious car dealers, and the effort put into making the adverts look realistic is done for verisimilitude purposes - apart from phone numbers (for obvious reasons, i.e. privacy) which are made longer and have numbers added in between, e.g. 01234 123456 becomes 012345413210 123456.

The magazines' inside design differs from the original, using different fonts, colours etc. - enough to avoid claims that it's 'ripping-off' the original design. The facts themselves (car prices of new vehicles etc.) are just data, and can't be copyrighted, if I'm correct, since this data is in the public domain.

I am wondering is this considered fan fiction? - I think it's a derivative work (bear in mind I am from the UK, so British law applies). As I understand it, Photoshop works of vehicles are derivative works under British law.

Currently my works are not on the site as I'm trying to ensure this fanfiction is legally compliant - it's my first real 'go' as it were, at fanfiction.

Relating to this question here would my content be considered 'sufficiently different' and as satire, as this is affectionate parody, not a "let's poke fun at this work"-type parody.

The point of creating these works is twofold; to show my design skills to fellow enthusiasts, and a tribute work to car magazines that car enthusiasts like - basically, a sort of fan site, if you like.

Basically, what I'm asking, is how to do things right with fan-fiction, especially since this isn't the usual type of question about fan-fiction works based on TV shows etc. as I'm very new to this area.

Answer 1

One of the difficulties you face is that of passing off. Ironically the better the job you do of (affectionately) parodying the visual style of the products you celebrate, the greater the risk that a reasonable person might be mislead into believing that your work is actually from the famous brand and hence infringes on their trademarks.

Answer 2

Fan Fiction

As a comment mentions, "fan fiction" is not a legal concept, and has no particular protections or rights. Most fan-fiction is in fact a copyright infringement. Some authors and publishers choose not to take legal action against creators and distributors of fan fiction, perhaps on the theory that it serves to advertise the original works, and helps build good will. Others attempt to prevent the publication and distribution of fan fiction, and may bring suits in some cases. Many have found it impractical to respond to every piece of fan fiction. That does not make such works legal, or ensure that any given author will not take legal action against a given work of fan fiction.

A few authors have explicitly permitted works of fan-fiction, either specific instances or in general. That is not the majority position.

In any case, the kind of faux magazines described in the question are not fan fiction as that term is usually used. Nor do they seem to be parodies as that term is used in copyright law. They may or may not be unlawful.

IP Rights

There are two main kinds of IP that might be involved here: trade marks and copyrights.

Trade Marks

Under the UK Trade Marks Act of 1994 (section 10 (1))

a person infringes a registered trade mark if he uses in the course of trade a sign which is identical with the trade mark in relation to goods or services which are identical with those for which it is registered.

Paragraphs (2) and (3) of section 10 of the Act also contain the qualifying phrase "in the course of trade". Those are the paragraphs describing infringing actions under the Act.

It would appear that no use of a mark that is not used in connection with good or services that are being sold, rented or leased, offered for sale, rental, or lease, or used in connection with advertising such goods or services is a "use in trade". The uses of trademarks or imitations or parodies of trademarks described in the question do not seem to be used in trade. Therefore, use as described in the question would not seem to infringe any actual trade marks under UK law. Much the same would be true under US law, and, to the best of my understanding, under the laws of most other countries.

Copyright

Under The Berne Convention, and under both UK and US copyright law, a work that is based on another work is a derivative work This include translations, imitations, parodies, and sequels.

Under US law there is a limited exception for parodies which comment on the original, but not for parodies which use the form of the original to comment on other issues, or for general humor; those are considered satire, and do not fall within the exception, which is an aspect of fair use. In any case that does not apply in UK law.

Whether a work is so closely based on another that it constitutes a derivative work is a judgement call. Simply being an instance of the same general plot such as "boy meets girl" or "the man who learned better" is not enough. A detailed chapter-by-chapter or paragraph-by-paragraph similarity would generally make the newer work a derivative work.

If the connection between source and later work is not easy to notice, it is less likely to be treated as a derivative work.

If a work is derivative, and the source work is still under copyright protection, permission is required. Otherwise it is a copyright infringement to create or distribute the derivative work.

Place names, words and phrases, and facts

Place names, real or invented, are not protected by copyright. Their use is not infringement.

Individual words and short phrases, such as book or song titles, are not protected by copyright. Their use is not infringement.

Facts are never protected by copyright. However, the selection and arrangement of facts may be protected, if there is some creativity or originality in the design. An obvious or natural arrangement, such as alphabetical, numerical, or chronological order, will not gain copyright protection.

The specific words used to express a fact may be subject to copyright protection, but not if they are the only way, or the only natural way, to express the fact.

Answer 3

As long as the work is sufficiently differentiated from the original sources, it should qualify as original work in which case you would own the full copyright over it. Even still, original trademarks and registered trade names if used, such as British Leyland (BL) Austin, Jaguar etc. would still be the copyright of the original owners. If used, you must attribute copyright to them.

Answer 4

I have this footer on my file I created:

All characters and other entities appearing in this work are fictitious. Any resemblance to real persons, dead or alive, or other real-life entities, past or present, is purely coincidental.

However, the place-names, I assume, are not copyrightable, e.g. Ashton-super-Mare etc. and telephone codes with additional numbers in?

All the advertisers are fictitious as well.

Answer 5

Under US law, a direct parody is considered "fair use". What isn't fair use is parodying something for some other purpose.

Of course, it's my understanding that English is spoken in other countries besides the US, and the laws there may be different.