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?
- 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?