Fan-fiction based on work of a deceased person, without permission from descendants

[TurboProp]

I live in California and I'm working on a fan-fiction book based on "Temporary Duty", a book by Ric Locke, who lived in Texas. Ric died in 2012 from lung cancer, shortly after publishing his book online. All my attempts to reach his descendants have been unsuccessful. I already have a site and a wiki dedicated to Ric's work, but I'd like to write something myself because the universe Ric has created in his book is amazing.

My question is, can I publish my fan-fiction without consent of the legal heir? I'm not planning to sell my work, just publish it online for free on my blog site.

Thanks in advance,
George

 

[Zigner]

Hi George -

I'm sure that one of our better versed advisors will respond shortly. I'm replying to ask you to remove the link to your web site, as it is against the TOS for this site. Thank you.

 

[TurboProp]

Thank you Zigner, the link has been removed

 

[quincy]

I live in California and I'm working on a fan-fiction book based on "Temporary Duty", a book by Ric Locke, who lived in Texas. Ric died in 2012 from lung cancer, shortly after publishing his book online. All my attempts to reach his descendants have been unsuccessful. I already have a site and a wiki dedicated to Ric's work, but I'd like to write something myself because the universe Ric has created in his book is amazing.

My question is, can I publish my fan-fiction without consent of the legal heir? I'm not planning to sell my work, just publish it online for free on my blog site.

Thanks in advance,
George

As a general rule, you must have the express permission of a copyright holder before using their rights-protected material for your own work, this even if it is difficult to find the copyright holder. To move ahead without this permission could be copyright infringement and could get you sued.

I have not read Ric Locke's book so I do not know how well the characters in "Temporary Duty," or how well the "universe" in which they live, have been defined by the author. The more creative and original and distinctive the characters in fictional works are, and the more unusual the settings are where these characters placed, the more likely these elements in a fictional work are to be protected by copyrights separate from the copyrights that are already present in the text of a book.

Whether you intend to sell your book or give your book away has no bearing on whether your work infringes on the copyrights of the other book. Copyrights protect against copying not just against commercial uses of copyrighted material.

I recommend you do not "honor" the memory of Ric Locke with a book based on his book until you have cleared all rights with the copyright holders.

 

[FlyingRon]

Copyright persists for a long time after the author dies. The question is whether your work would be considered a derivative work of his or infringe on his trademarks. You may wish to read the Wikipedia article on this: https://en.wikipedia.org/wiki/Legal_issues_with_fan_fiction or this piece here: http://reporter.rit.edu/views/fanfiction-legal-battle-creativity.

While a parody or review may be considered fair use, other transformative works likely will not. You can't just call something a parody and consider it so as well.

 

[quincy]

Copyright persists for a long time after the author dies. The question is whether your work would be considered a derivative work of his or infringe on his trademarks. You may wish to read the Wikipedia article on this: https://en.wikipedia.org/wiki/Legal_issues_with_fan_fiction or this piece here: http://reporter.rit.edu/views/fanfiction-legal-battle-creativity.

While a parody or review may be considered fair use, other transformative works likely will not. You can't just call something a parody and consider it so as well.

The copyrights continue to last for 70 years after the death of the author.

Following is a link to Nichols v. Universal Pictures Corp, 45 F.2d 119 (2d Cir 1930), heard before Justice Learned Hand. Hand speaks to what is protectable in a fictional work.

https://cyber.harvard.edu/people/tfisher/IP/1930 Nichols.pdf

 

[TurboProp]

Thank you for your answers, everyone! After reading all the documents carefully, I'm of the opinion that my fan-fiction might be considered a fair use. After all, there will be no monetary gain and I will certainly promote Ric's original work. While I will be using some of the original characters, most of them will be brand new. So will be the plot.

I have another question I would be glad to get an answer to. What about translations? I'm fluent in two other languages and would like to translate Ric's work. Again without any monetary gain. I'm reasonably sure your answer would be "No way", but it wouldn't hurt to confirm

Just for the record, this is the copyright page from the book (links removed):
This is a work of fiction. All the characters and events herein portrayed are fictional, and any resemblance to real people or events is purely coincidental. Copyright © 2010, 2011 by Warrick M. Locke. All rights reserved. Cover image copyright © 2011 by Stoaty Weasel, Used by permission.

 

[Zigner]

Thank you for your answers, everyone! After reading all the documents carefully, I'm of the opinion that my fan-fiction might be considered a fair use. After all, there will be no monetary gain and I will certainly promote Ric's original work.

Those aren't elements of "fair use" - I really suggest that you seek the advice of an attorney.

 

[quincy]

Thank you for your answers, everyone! After reading all the documents carefully, I'm of the opinion that my fan-fiction might be considered a fair use. After all, there will be no monetary gain and I will certainly promote Ric's original work. While I will be using some of the original characters, most of them will be brand new. So will be the plot.

I have another question I would be glad to get an answer to. What about translations? I'm fluent in two other languages and would like to translate Ric's work. Again without any monetary gain. I'm reasonably sure your answer would be "No way", but it wouldn't hurt to confirm

Translations of copyrighted works are considered derivatives of the originals. Creating derivatives is one of the rights belonging exclusively to the copyright holder. You would need permission from the copyright holder to translate Locke's work.

I would not rely on fair use to create your new book, by the way. Fair use is an affirmative defense to infringement - an "I infringed on the work but it is an excusable infringement" defense. Fair use is not permission to use a copyrighted work. And the fact that there will be no monetary gain is not the only factor looked at with fair use. It is one of many.

I strongly recommend you seek out the copyright holder for Locke's work (perhaps it is his brother?) and obtain permission. It is bound to save you legal headaches in the future.


Edit to add two links to information on fair use, one from the US Copyright Office and one from Stanford:

http://www.copyright.gov/fair-use/more-info.html

http://fairuse.stanford.edu/overview/fair-use/four-factors/