A closer look at two of these groupings of excluded works will also prove helpful when later considering "contracting around" the issue. However, rather than organizing this discussion around the groupings themselves, it makes more sense to organize it around the particular problems raised... which, not entirely coincidentally, also organizes the discussion around the various interests/roles that are in play.
The first set of problems comes from conflicts with other, preexisting interests. The employment interest — and the corollary common-law duty of loyalty to an employer — is an obvious example of this. Less obvious (and, therefore, more insidious) is the potential conflict with different types of intellectual property rights, particularly trademark and unfair competition rights related to a media property. An example might make this clearer; it's one I've quoted before in this blawg:
Text copyright 2007 by J.K. Rowling Illustrations by Mary GrandPre copyright 2007 by Warner Bros. HARRY POTTER & all related characters and elements are TM of and copyright WBEI Harry Potter Publishing Rights copyright J.K. Rowling All rights reserved.
Harry Potter and the Deathly Hallows ii (unnum.) (2007) (emphasis added). Similarly, consider
Copyright © 2006 CBS Studios Inc. All Rights Reserved. STAR TREK and related marks are trademarks of CBS Studios Inc.
David R. George, III, Crucible: McCoy: Provenance of Shadows ii (unnum.) (2006) (emphasis added).
These two books point out some of the simpler potential conflicts. (Yes, they can — and do — get much more complex, both legally and factually.) In each instance, the copyright notice alleges, or tries (incorrectly) to deny, a division in ownership of expressive and allusive materials. The expressive materials comprise the text in question; as noted above, these are not properly WFH, whether or not the contracts say they are. The allusive materials include, but are not limited to, the various marks. This becomes clearer in the Star Trek example with a few not-so-outlandish hypotheticals.
- A fan-written novel that takes substantial dialog one existing episode/film/novel, and copies a substantial part of the plotline, would constitute both copyright and trademark infringement. There is no question that it would not be legally proper to publish such a work without an explicit license from all of the interest-holders. The copyright infringement arises from both the direct copying and the preparation of a derivative work.8 The trademark infringement arises from the allusions to marks without license to do so, and in a nonexemplary fashion. It's one thing to have a character exclaim, "Your libido rivals Captain Kirk's!" It's another thing entirely to copy one of Captain Kirk's romantic conquests, even slightly reworded.
- A fan-written novel that takes no dialog (except, perhaps, dialog constituting scenes á faire or that represents one of the restricted ways of expressing a fact — even a "fact" internal to a work of fiction) or plotline from any single existing work, but instead draws from the entire environment to tell a new story. Under some copyright theories, this would constitute a copyright infringement (e.g., the Tarzan/Sam Spade line of cases); under others, it might not, particularly if arguably parodic (e.g., The Wind Done Gone/Gone With the Wind controversy). That, however, does not get the author off the hook, as the allusive uses of marks — particularly if done persistently — constitutes some form of trademark infringement. This points out a problem in using traditional trademark analysis: If an alluding work is "high quality," it is both harder and easier to win the claim.
- A fan-written novel that parodies the existing environment, particularly through use of anachronism. One good example is this "winning" entry from the Bulwer-Lytton contest a few years back (unfortunately, the site is in hibernation, so I can't give you a direct link or the correct attribution at the moment):
Kirk's mind raced as he quickly assessed his situation: the shields were down, the warp drive and impulse engines were dead, life support was failing fast, and the Enterprise was plummeting out of control toward the surface of Epsilon VI and, as Scotty and Spock searched frantically through the manuals trying to find a way to save them all, Kirk vowed, as he stared at the solid blue image filling the main view screen, that never again would he allow a Microsoft operating system to control his ship.
(Note, though, that this parody probably fails the legal definition of "parody," because arguably its "target" is not Star Trek, but Microsoft. This merely points out that lawyers shouldn't write about literature without understanding literary theory first...) In this instance, the trademark use probably is examplary, so it would not constitute trademark infringement. Whether it might be some other form of unfair competition, though, is not clear.
- For the moment, I am neglecting any potential fair use defense. That is another subject entirely, although the very concept of fair use has some interesting implications for the very concept of the WFH. Unfortunately, those implications belong — for the present — in law journal articles that are harder to take out of context (although not completely impossible). Just assume that anything in these examples is beyond the bound of fair use, both under the traditional four factors and under the fifth, nonstatutory, factor (administrative convenience).