Creative Commons vs Fair Use

[RhettSarlin]

Ok, hopefully this is an interesting one for you all...

I am a member of a creative writing website, The SCP Foundation(http://scp-wiki.wikidot.com). Works submitted by authors to our website are released under the Creative Commons Attribution-ShareAlike 3.0 License(http://creativecommons.org/licenses/by-sa/3.0/). This was actually a mistake initially on our part, as we would have preferred the "Non-commercial" version, but it's a bit late to fix that part now.

The question I have stems from the origins of all of this. The original article, SCP-173(http://scp-wiki.wikidot.com/scp-173), was submitted anonymously to www.4chan.org/x/ in 2007. Other people liked the idea, and copied the format, also posting their entries anonymously. Eventually enough people came together who liked the idea that they made a separate website to collect all the entries together, about 160 entries all told at the time. These were not released under any license in particular from what I understand, just people posting stuff on the internet willy nilly.

These articles were all moved to the new website in August of 2008 by a few specific members, who actually had not written the majority of the entries. Ever since then, thousands of new entries have been posted, all of them within the same "universe". Lately we have been having people who wanted to make merchandise based in the SCP universe, and from what we can tell under Creative Commons they would legally be able to do that as long as they follow proper attribution and licensing procedures.

My questions:

Would all articles be considered derivatives of that original article, SCP-173?

4chan's policy is "All trademarks and copyrights on this page are owned by their respective parties. Images uploaded are the responsibility of the Poster. Comments are owned by the Poster." Since the author of SCP-173 was anonymous, what would be necessary for someone to be able to prove they were the original author of it, and what rights do they retain?

Since SCP-173 was not posted to our current site by its original author, did anyone have the right to release it under Creative Commons?

If all articles were derivatives of SCP-173, were ANY articles legal to release under Creative Commons?

If merchandisers do not properly follow Creative Commons attribution/licensing requirements, do any of our authors have the right to take legal action against them for using their works, or would they just be out of luck due to our own questionable legal status?

We have been debating back and forth on all of this on our own forums and chatrooms for a while, and the universal consensus is "we need to talk to a lawyer". I know that this forum is not to take the place of a lawyer, but I did hope that people here might be able to give some clarity on these issues before we were to consult with one.

Thanks!

- RhettSarlin

[Browne]

Ok, hopefully this is an interesting one for you all...

If merchandisers do not properly follow Creative Commons attribution/licensing requirements, do any of our authors have the right to take legal action against them for using their works, or would they just be out of luck due to our own questionable legal status?

- RhettSarlin

I'll take that question.

Yes on the latter. They would be out of luck because they opted to post it anonymously. They had the choice of putting their name on the work and they chose not to. When they made that choice, they forfeited all legal rights to that article. True the original site was what it was, but the internet itself is what it is. A place where one can copy and paste whatever they want and put it wherever they want.

I'm no lawyer, but there's a site I frequent and I contribute content to it knowing full well that when I hit the "post" button, the site that I'm posting it on owns that content. What they do with it after it's posted I have no say in. It can be proven beyond a shadow of a doubt that I am the author, (if you're lucky) but I also have no legal rights to it anymore. Kind of the same thing with your situation. Even though what I've contributed will likely not show up on 3 different websites because people are doing whatever they want to do, the site in question with me is a lot more structured then that and they've known me for the better part of a decade now.

It all comes down to, really, the Terms and Conditions of a site. And from what you've stated, I'm not really seeing anything that is set in stone. Contribute content on sites like that, but don't be surprised if what you write takes a hike into someone else's legal jurisdiction.

[flyingron]

Everything Browne says above is 100% WRONG. Just because something shows up on the internet, even anonymously, doesn't waive copyright.
I've found and have taken action about works of mine that were lifted off websites a number of times. In one case, the current website claimed that another site gave him permission. I had to point out to him that was all well and good, but the other guy had no right to do that as well.

4chan is just a repository. You can't make any assumptions about what you find there. In fact, you'd be wise to assume that anything you DO find is stolen copyright material.

Frankly, I can't even see anything that begins to smell like fair use and absent an explicit placement in the public domain, or license under something like creative commons, you'll have to assume that the copyrights are reserved.

[RhettSarlin]

Actually, Browne, in this case things posted on OUR website are NOT anonymous. Each user has their individual username, which they could prove was them. It was 4chan, the place that the original article and a good number of the other first ones were posted, that was anonymous. On top of that, our website specifically gives copyright to the original author, our only stipulation is that things that people post to it must be released under the Creative Commons license. However, our website could only cover everyone under Creative Commons IF it is legal for them to license it under that, I believe. Thank you for your reply though!