Can a plagiarist sue one who plagiarized them?

Question

I sometimes write rather vicious satirical pieces that heavily reference (arguably - but possibly beyond the point of plagiarism; definitely the same setting, the same characters, strong references to events) the works upon which the satire is written.

Expectably, authors, or their fans, aren't entirely happy about that, and try to shut me down one way or another.

Yes, the safe haven of Fair Use for Satire applies. Yes, I'd win a lawsuit if it ever came to that, but I definitely try to first argue, to a point where the other party won't start a lawsuit, or where DMCA or moderator action could get my publication removed; prove to them that their actions would be unlawful. But getting just this through some thick skulls is difficult. So, let us for a moment forget the Fair Use clause, and have a look at one other vector of defense:

Thing is, these pieces I write about are usually fanfiction. Based upon a setting, characters, and events that belong to a popular franchise, with trademarked characters, popular following and a big corporate entity with an army of lawyers ready to C&D anyone who tries to commercialize on their success.

In effect, anyone waving their copyrights to their fanfic in front of my face gets slapped with "Could you show me your copy of license from [Bigcorp ltd.] that grants you the right to pursue the copyright on my use of their characters and setting?"

It works very efficiently actually; I never had anyone follow up on their threats after that. Still, I'd like to know - does it work like that, or am I merely throwing a bluff in their face?

Summing up:

• Entity A possesses some franchise.
• Entity B creates a derivative work of franchise A, which is possibly infringing upon its trademarks/copyrights (although A doesn't pursue that, leaving the infringement alone.)
• Now, entity C creates a derivative work based on work of B to a degree that could be considered infringing, had B's work been fully original. (never mind infringing upon A; they remain 'inert').

Now, can B legally demand C to remove their content, due to the potential infringement, or does B's own infringement void any further claims to derived content?

Answer 1

I'm also not a lawyer, and neither am I in the U.S. but I'll try a swing at this...

The author of a derivative work (fanfic) certainly can register their copyright with the U.S. Copyright Office. The author is expected to only claim copyright on their original contributions; any other claim would be void. Only the separable, original parts can be copyrighted.

See the Copyright Office Compendium section 313.6[B] (Unlawful Use of Preexisting Material in a Derivative Work, a Compilation, or a Collective Work):

The Office may register a derivative work, a compilation, or a collective work that contains preexisting copyrightable material, provided that the author’s contribution to that work can be separated from the preexisting material.

That means (at least for the U.S.) what you're telling your victims isn't correct. They can register at least parts of their stories which give them right to sue you if you infringe, and you can't bring BigCorp into the fight at all. You could threaten to tittle-tattle, but BigCorp may look at the situation and sue you first, since yours is a more aggravated infringement of the original work. Even your Fair Use defence could crumble if your work falls short of parody, which it sounds like it might.

According to the Wikipedia page...

[parody] "is the use of some elements of a prior author's composition to create a new one that, at least in part, comments on that author's works". That commentary function provides some justification for use of the older work. See Campbell v. Acuff-Rose Music, Inc.

Based on your later description it doesn't sound like you are offering much commentary, just taking the parts you like and replacing the parts you don't. Your opponent's lawyer could argue that's just plagiarism and vandalism, not parody.

Furthermore, it sounds like your 'parody' is aimed at the Fanfic authors, but you may be infringing the copyright of BigCorp in order to do it. If that's the case, you have no Fair Use defence at all should Big Corp chose to sue you.

Answer 2

I am not a lawyer. This is based on my understanding of U.S. copyright laws.

Any part of B's story which is unique to B is, I believe, the property of B. So if B is writing an X-Files fanfic about Mulder, Scully, and an original character who is a female agent for the Canadian Security Intelligence Service, and C writes a parody-bordering-on-plagiarism about Mulder, Scully, and Jack St. Georgina, then B probably has legs to go after C if the story, "Wyverns of the Heart," significantly lifts text from B's work.

If C's story is merely parody, then it falls under the same Fair Use rules as any other parody.

I believe that since the original character is an invention of B, B actually does have the copyright to that character, and B does have the copyright to the original story, plot, and text. So there might be grounds for a plagiarism claim.

Since B's work is "transformative" of A's copyrighted work, I think B would be hard-pressed to find a lawyer willing to take the case on. But the possibility exists.

You are probably right in that you can't be sued. However, I do wonder why you're expending so much energy trolling these people.

Answer 3

The reason your method works is that most people who make legally questionable threats are trying to scare you with their own fears. When you shine a light on something that scares them, they back off. This does not make your counter threat any more valid than theirs. It also does not work on people who are knowledgeable or not afraid of suit, except when the only way to counter your threat are with facts that also counter theirs.

Answer 4

Adding to the answer by @laurenipsum: Her answer applies also to an original that is out of copyright. For example, anybody can make any story they want using the original characters and setting from Les Miserables, since that is out of copyright. The writers of Les Miz can't sue you for that (well, not successfully). But, if you use characters original to Les Miz, that's a different story. (See what I did there?) The new characters in Les Miz belong to the writers of Les Miz, even though Les Miz is a total knock-off of Victor Hugo's book.