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Published:
2022-02-23 23:45:20 UTC
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OTW Legal is tracking and participating in three current developments in U.S. law that could affect fans: (1) Fan-unfriendly proposals to change trademark law; (2) Attacks on LGBTQ+ expression online; and (3) Proposals to mandate technological copyright filtering on the Internet. We will keep advocating for fans in these areas, and in some cases, there are things you can do if you’re in the U.S.! If you want to know more, read on.

(1) Fan-Unfriendly Proposals to Change Trademark Law

The U.S. House of Representatives has passed a bill with the misleading name of “SHOP SAFE” that would place barriers and restrictions on online marketplaces, including the sorts of marketplaces that fans rely on, like eBay, Etsy, Kickstarter, Patreon, Redbubble, TeePublic, and many others. Although this bill is presented as being about “consumer protection,” that’s not really what it accomplishes – instead, it would reverse long-standing principles of trademark law, would give enormous power to trademark owners to take down fan material from e-commerce sites, and would even force e-commerce sites to try to filter out fan material before it even gets posted. It would harm markets for memorabilia, resale, fanart, and more. Although the OTW is focused on noncommercial fanworks, and this law wouldn’t affect the AO3 (which does not do any commerce at all), it would be terrible for fans on other sites.

Although SHOP SAFE has passed in the House, it is still pending in the Senate. The OTW is actively participating in direct efforts to explain to Senators why this bill would do more harm than good. If you’re in the U.S., you can help by contacting your Senators to do the same! One way to contact your senators is using the EFF’s e-mail tool.

Here are some resources to learn more about SHOP SAFE:

(2) Attacks on LGBTQ+ expression online

We have heard from a lot of members about the (again, terribly mis-named) EARN IT Act, which has been introduced by the Senate Judiciary Committee. This bill, like SHOP SAFE, claims to do one thing, but actually does something very different. On its face, EARN-IT appears to be about curbing the availability of visually-depicted Child Sexual Abuse Material (“CSAM”) online – and if it were actually a tool for doing that, we would support it. AO3 bans the posting or embedding of CSAM (photos of actual children), and bans users for posting such material.

So why does the OTW care? Because EARN-IT is an attack on section 230, which is the law that makes online platforms able to host user-posted material, and it does so in a way that allows U.S. states – many of which can be influenced by powerful anti-LGBTQ+ lobbying groups – to define what constitutes a visual depiction of CSAM. It is also a massive attack on Internet user privacy, that could result in users’ private material being searched. This sort of legal change could have dramatic impacts on fans, fanart, and freedom of expression for LGBTQ+ youth.

EARN-IT would not affect the AO3 directly. EARN-IT is specifically and explicitly limited to visual depictions, and AO3 does not host any visual depictions at all — the only user-posted material that AO3 hosts is text-only. Any and all images visible on AO3 are hosted elsewhere and embedded by users in works. EARN-IT would therefore affect those platforms where the images are actually hosted, not AO3, where the images merely appear as the result of embedding links (the technological difference matters for this bill).

However, the implications of the legislation for fan communities mean that the OTW is monitoring the situation closely, and will take direct action based on how things develop. If you want to get involved yourself, the best way to do so is through our allies at the EFF, which is also monitoring closely and organizing user action. For more information and action items, visit the EFF's EARN-IT action page.

(3) Proposals to mandate technological copyright filtering on the Internet

The U.S. Copyright Office is convening roundtables to explore the imposition of “Standard Technical Measures,” which could require online platforms — like the AO3 — to engage in filtering. Filtering could require platforms to attempt to prevent the uploading of copyrighted material, or monitor or search their networks for copyrighted material — things that do not account well for the sorts of fair uses that fans and AO3 rely on. OTW has long stood against copyright filtering, which is not only harmful to free expression, but also technologically impossible. We have submitted many comments over the years opposing proposals like those contemplated by the Copyright Office, and on February 22, 2022, Legal Committee Member Rebecca Tushnet participated on the OTW’s behalf in this most recent round. We will continue to fight this fight, and will keep you informed as things develop!

The EFF links above also include pointers to email forms that fans in the U.S. can use to contact their representatives to urge them to take a stance against SHOP SAFE and EARN IT.

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Published:
2022-01-23 16:56:07 UTC
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OTW logo with the words 'Spotlight on Legal Issues'

Right now, Hong Kong is in the process of reviewing and proposing changes to its copyright law, and has put out a public call for consultation. OTW Legal will be submitting a comment in response to this request, recommending that Hong Kong's copyright law be made more flexible to allow more freedom for fans to create and share fanworks.

Here's where you come in! As we've done in many countries, including Canada, Australia, the U.S., South Africa, and New Zealand, we'd like our Hong Kong submission to include first-hand accounts from Hongkongers about the benefits of laws that promote the creation and sharing of transformative works.

If you're in or from Hong Kong and have expressed yourself, gained skills, been part of creative communities, or otherwise experienced the benefits of being able to create transformative works, we'd love to hear your stories. They can be long or short--just give us some specifics about why making and enjoying fanworks matters to you, so we can include those stories in our submission. If you can send your stories in English, that will be even more helpful, since the submission will be in English.

The deadline is approaching quickly! Please send your stories to us by January 30 using our contact form or e-mailing us at legal [at] transformativeworks.org. (Feel free to use a pseudonym if you don't want us to share your personally identifying information.)


The Organization for Transformative Works is the non-profit parent organization of multiple projects including Archive of Our Own, Fanlore, Open Doors, Transformative Works and Cultures, and OTW Legal Advocacy. We are a fan run, entirely donor-supported organization staffed by volunteers. Find out more about us on our website.

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Published:
2021-08-06 16:30:34 UTC
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Spotlight on Legal Issues

We've been getting a lot of inquiries about tumblr's recent announcement that it would be beta testing a feature it is calling "Post+," which allows users to monetize posts by locking them to subscribers.

How does this interact with AO3 policies?

Don't worry, nothing's changing. As always, AO3 is dedicated to noncommercial fanworks, and has a policy against using the AO3 for commercial solicitation. So, linking to your blog or other social media from AO3 is fine. But linking to your Patreon, Ko-fi, Amazon sales page, or other commercial/fundraising site isn't. Letting people know how to learn more about you is fine, but soliciting financial support isn't. So how does this rule apply to tumblr? We know a lot of people link to their tumblr accounts from their AO3 profiles or works, and that's fine! But linking specifically to subscriber-locked material on tumblr isn't, and using AO3 to ask people to subscribe to a monetized tumblr account isn't. And of course, AO3's rules don't govern what you do on other websites.

What about fan activities on tumblr and elsewhere?

We've also gotten questions and seen a lot of concern floating around about how tumblr's Post+ program affects fans on tumblr and on the Internet more generally. The good news is...probably not much. We want to be clear that we have no relationship with tumblr, so we have no control over them or what they do. But here's our take on things, as experienced lawyers.

Making and sharing fanworks has long been a predominantly noncommercial activity, and the OTW celebrates the community that has grown around that noncommercial approach. Also, the OTW's position is that noncommercial, transformative fanworks are fair use under U.S. copyright law, which means that they do not infringe copyright. Importantly, as a matter of U.S. law, commerciality is one of a number of factors that courts consider in determining whether a use is fair use--it's not the whole question. In other words, it is possible for noncommercial things to infringe copyright, and it is possible for commercial things not to. (In fact, all of the major U.S. cases holding that transformative works constitute fair use have been about commercial works.) Generally speaking, the more a work transforms the meaning, message, or purpose of the underlying work, the less a court would care that the work is commercial; and vice versa--the less transformative a work is, the more commerciality would matter.

But all of this talk of courts is very remote. As a practical matter, the Digital Millennium Copyright Act allows copyright holders (publishers, entertainment companies) to seek to have things taken down from the Internet if they think those things aren't fair use, and we know that in general, copyright holders are more likely to seek takedowns for commercial things than for noncommercial things. That doesn't mean those commercial things are necessarily infringing, but it does mean they're more likely to be taken down.

The law does not give Internet platforms (like tumblr) much discretion in determining whether to take things down when they receive a valid request--basically, if a takedown request is valid and the work isn't an obvious fair use, the platform has to take it down, as a matter of law. As a practical matter, then, it's reasonable to expect that monetized tumblr posts are more likely to be the subject of takedown notices than non-monetized ones. But it doesn't mean they're automatically infringing or non-infringing. Fair use is always a case-by-case analysis.

To think about this differently, Internet platforms (including tumblr and YouTube and all the other ones) act as a form of insulation from lawsuits. That insulation happens in the context of DMCA takedown notices--rather than suing an individual poster, the copyright owner just asks the platform to take it down. It's always up to users to decide what to post, and--in the very (very, very!) unlikely event that a copyright holder would decide to sue rather than just relying on the takedown process--users always bear the risk of being sued. If work gets taken down under the DMCA, users always have the opportunity to "counternotify" and ask for it to be put back up, with the understanding that having it put back up might make a lawsuit more likely. In other words, although platforms don't "defend" their users, they do add layer of protection, in a way. Nothing about tumblr's Post+ program changes any of that.

We hope this is helpful information. The OTW and AO3 are dedicated to maintaining space for noncommercial fanworks and fan culture, and we'll continue to do that.


The Organization for Transformative Works is the non-profit parent organization of multiple projects including Archive of Our Own, Fanlore, Open Doors, Transformative Works and Cultures, and OTW Legal Advocacy. We are a fan run, entirely donor-supported organization staffed by volunteers. Find out more about us on our website.

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Published:
2021-04-30 17:03:22 UTC
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Spotlight on Legal Issues

Of special interest to German fans, as well as other fans in the EU.

Germany is working on implementing Article 17, which makes significant changes in European copyright law. This has created an exciting opportunity to clarify that fan fiction is legal under German copyright law.

The German government has sent a draft bill to the two houses of Parliament. The final vote is planned for the beginning of May. The government proposal makes clear that nonprofit websites like the Archive of Our Own should not be required to get licenses from copyright owners, as commercial websites like Facebook and YouTube will have to do. The draft bill also proposes to explicitly legalize fan fiction, fan art, and many other transformative works, as part of the EU exception for “caricature, parody and pastiche”.

There is one problem, and one risk. The problem is that the proposal includes language that is not required by Article 17 and that could be confusing and unduly restrictive of the ability to engage in caricature, parody and pastiche. This language restricts caricature, parody and pastiche “to the extent required by the specific purpose,” which would invite second-guessing of an artist’s purpose by courts and copyright claimants. Fan fiction, like caricature, parody and pastiche in general, has its own artistic existence and courts should not ask whether a work of fan fiction takes “too much” of the characters.

The risk is that some lobbyists are asking for a remuneration requirement for caricature, parody and pastiche—including fan fiction and fan art—even if they are not posted on commercial websites. The consequences of a payment requirement would be perverse: it would favor commercial platforms over nonprofits such as the Archive of Our Own and Wikipedia. This is because users could freely upload fan fiction, fan art, memes etc. to YouTube or Facebook, because the commercial platform would already be paying a collecting society through the implementation of Article 17, but the same users would have to pay a collecting society if they wanted to upload the same fan fiction, fan art or memes to their personal website or to a nonprofit website such as Archive of Our Own. In practice, the law would strengthen the big commercial platforms by creating an incentive for internet users to close down their private websites, leave nonprofit platforms such as AO3, and move their activities to a Facebook group instead.

We suggest that German fans should (1) ask Members of the German Parliament (Mitglied des Bundestags) to remove the restriction on the caricature, parody & pastiche exception “to the extent required by the specific purpose” and (2) explain how important it is that this exception should not be subject to remuneration. One easy way to do that is to use the portal abgeordnetenwatch.de, whose page on the Committee on Legal Affairs and Consumer Protection shows those members of parliament who will be in charge of this proposal.

We believe that the law should not add an additional condition, not part of Article 17, to the exception for parody, caricature and pastiche, saying that uses should only be allowed “to the extent required by the specific purpose”. This wording only serves to muddy the waters, because it is very difficult for a user to determine the extent of the use of a work that is “required” for the purpose of fan fiction, fan art, and other transformative uses. Likewise, we believe that the law should protect individual fans and noncommercial websites, and fight against the dominance of Facebook and YouTube, by rejecting a compensation requirement for the exception for parody, caricature and pastiche.

Update 5 May 2021: Based on fan response to this post about Germany's impending copyright reforms, we have created a Change.org petition for fans to use, which may provide an easier way to reach the legislator than submitting individual comments in the form of a question to the website (as suggested in the original post). 


The Organization for Transformative Works is the non-profit parent organization of multiple projects including Archive of Our Own, Fanlore, Open Doors, Transformative Works and Cultures, and OTW Legal Advocacy. We are a fan run, entirely donor-supported organization staffed by volunteers. Find out more about us on our website.

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Published:
2020-12-22 18:22:02 UTC
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OTW logo with the words 'Spotlight on Legal Issues'

Since we began in 2007, the Organization for Transformative Works' core mission has included working to promote fan-friendly copyright law. For years, we've submitted testimony and comments to governments, filed briefs in court, and helped mobilize fans to have their voices heard by lawmakers around the world. Recently, one of our big legal advocacy projects has been testifying and submitting comments to the U.S. Senate about the way U.S. Copyright works online under the Digital Millennium Copyright Act (DMCA).

Today, U.S. Senator Thom Tillis has released proposed legislation that would be bad for the AO3 and bad for fans. OTW Legal will fight for fans against this proposal, and you can help.

Sen. Tillis's proposal is awful. Among other things, it would dismantle safe harbors in the DMCA that protect the AO3 and other fan sites. It would put fanworks at greater risk of being taken down, and make it harder for new fan sites to get started. But here's the good news: it's just one Senator's wish list. Although Sen. Tillis's office has released a proposal, it's not even a bill yet--and if we remember our Schoolhouse Rock, becoming a bill is only the first step on a long, winding road that can involve lots of changes and may go nowhere. And before it starts on any road, the OTW (and you!) will have opportunities to have our voices heard and make a difference in what (if anything) might go in a bill.

OTW's legal advocacy team is on the case. We've been submitting responses and objections to Congress and the Senate, meeting with Sen. Tillis and other lawmakers, and doing everything else we can to continue to support free expression and fair use, promote copyright safe harbors that make it possible for the AO3 to exist, and protect fans from having their works unfairly taken down or commercially exploited by others.

We're optimistic that this wish list will not become law! But we have a lot of work ahead of us, and if you live in the United States, you can help. As things go forward, we'll know more about what specific actions will make a difference, but for now the biggest thing you can do is stand up and be counted. If you are interested in staying informed or getting involved, let us and our allies at the Re:Create Coalition know!.

OTW Legal is here to help! To find out more about the OTW's Legal Advocacy work or how to contact us, visit our Legal Advocacy page.


The Organization for Transformative Works is the non-profit parent organization of multiple projects including Archive of Our Own, Fanlore, Open Doors, Transformative Works and Cultures, and OTW Legal Advocacy. We are a fan run, entirely donor-supported organization staffed by volunteers. Find out more about us on our website.

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Published:
2020-05-16 21:47:58 UTC
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Recently, you may have received an email informing you that Disney has updated its terms of use. Or you may have seen discussion about Disney's terms of use and statements on Twitter around the #maythe4th hashtag. So what's going on? Our Legal team can't give you advice, but here's what they have to say about what Disney's terms mean for fans and fanworks.

Disney's terms of use can be found here. (The direct English-language link is here). They govern the use of various (unidentified) Disney "products" such as websites, software, applications, contests, and services. What does that mean? Well, although this scope is broad, Disney can't use terms of service to govern what people do out in the world -- they can only govern what people do in Disney's own platforms, (such as Disney's websites, apps, software, and contests). Even if Disney would like to control what people do outside of those spaces, they just don't have that power: out in the world, the usual rules of copyright, trademark, and fair use law apply.

The part that has attracted the most attention in fandom circles has been Section 7: Submissions, User Generated Content, DMCA Takedown Notices. So what does this term mean?

First, 7A asserts that you have no expectation of compensation for any ideas or materials submitted to Disney. This is an important rule of thumb: Always be careful when submitting ideas or materials to anyone, not just Disney!

7B then goes on to discuss user generated content ("UGC"). It defines UGC as content by users that Disney "asks for" or "allows." This refers to be content uploaded to Disney's platforms, sites, and such. What do Disney's terms mean when they say they cover content uploaded to third-party platforms "integrated" with Disney? This seems to refer to Disney platforms that you can get through various devices and tools such as Xbox, Apple iOS, or Android. Of course, we can't promise that Disney won't try to assert these terms over content posted elsewhere--but the law limits their ability to succeed in that sort of broad assertion.

Disney's terms appear to refer to two categories of UGC made available via these platforms:

(1) If the UGC is entirely your own original work, then the terms state that you grant Disney a non-exclusive, royalty-free worldwide license to do what it wishes with the UGC. This license means Disney can use the UGC in a variety of ways, without attribution or compensation. Non-exclusive, royalty-free worldwide licenses are fairly common in the UGC world. Indeed, these licenses are often necessary for social media and other UGC websites to function (otherwise, they might not be able to display your content at all, which generally isn't what people want when they post something!). However, the license purportedly taken by Disney in its terms of use is somewhat unusual in its breadth and duration. Again, the extent to which Disney can assert its terms of use over UGC posted to third-party websites, apps, and platforms is limited, but please be aware of this term when interacting with any of Disney's platforms.

(2) The other type of UGC referenced in the terms is UGC that Disney has "authorized" users to post, upload, distribute, display, or perform that incorporates Disney's copyrighted works. Although we can't be sure, this probably refers to works that Disney has invited or challenged users to create and post. In that situation, Disney asserts that it has granted a license for that use of its copyrighted works within the UGC, with the condition that all rights in the resulting derivative work UGC is assigned back to Disney. The terms go on to state that a refusal to assign the rights in the derivative work to Disney would result in Disney revoking the license to use its copyrighted works in the UGC. Like the first category, this term is unusual in its breadth.

But it is important to note that not all uses of Disney's copyrighted works in UGC require a license from Disney. You do not need a license to create any derivative work that would be protected by fair use, and it is the OTW's position that noncommercial fanworks are creative and transformative works protected by the fair use doctrine. Therefore, Disney's terms grant your UGC a license on the condition that you assign all of your rights to Disney; but not all UGC requires that license in the first place. In that case, revoking the license would just mean that ordinary copyright law, including fair use, governs the UGC.

What's the tl;dr here? If you post something on a Disney platform (website, app, service, etc.), Disney's terms are likely to be enforceable. However, we do not believe Disney's one-sided assertion of control over anything it "allows" is broadly enforceable. If you post something on a non-Disney platform without doing anything to agree to Disney's terms, then copyright and trademark law, including fair use, provides the rules.


The Organization for Transformative Works is the non-profit parent organization of multiple projects including Archive of Our Own, Fanlore, Open Doors, Transformative Works and Cultures, and OTW Legal Advocacy. We are a fan run, entirely donor-supported organization staffed by volunteers. Find out more about us on our website.

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The OTW began receiving reports on Friday, February 14, about apps that are making available fanfic from AO3 without authorization. The first app is Fanfic Pocket Archive Library, which has been available on both the Apple and Google app stores. As far as the OTW can tell, this app provides an interface that allows users to access works on AO3, and it may not actually copy, store, or redistribute any data from AO3. This app has a premium option that allows users to access extra features of the app for a monthly fee; it also hosts ads. At the time of writing, it appears that this app has been removed from the Google Play store but remains available on the App Store.

The second app is actually not just one app, but a collection of them by a company called Woodsign j.d.o.o. The apps are available in the Apple app store. They are called Harry Potter Fan Fiction, P.J. Fan Fiction, K-POP Fan Fiction, Bulletproof Boys Scout / ARMY, 1D Fan Fiction, MCU Fan Fiction, Fantastic Beasts Fan Fiction, Sherlock Homes Fan Fiction, Slashfic, TWD Fan Fiction, and Real Person Fiction. These apps do appear to be redistributing fanworks. They also charge for access to many fanworks. We cannot say for sure that all works contained on these apps are being redistributed without permission, or that all of the works contained on these apps are from AO3, but user concerns and Tumblr discussion suggest that at least some are.

Below are some of the things we have told concerned users in responding to emails. We also highlight some of the steps users can take if they do not want their works on these (or other) apps or sites.

If you have further questions, please ask them here. That will make it easier for us to answer and will let more people benefit from the same information.

Can the OTW/AO3 get my work taken down from these apps?

The OTW does not own the copyright in the fanworks displayed on the Archive. When you post a work on the AO3, you give the Archive the right to display your work - that’s all. And that’s good! It means that when you post fanworks on AO3, you keep your copyrights. For that reason, the OTW cannot issue a copyright notice to apps on behalf of our users. Copyright owners, in this case affected fan authors, must do that for their own works. Although the OTW uses trademark law to ensure that app makers do not mislead users into thinking those apps are official OTW projects, we do not have any legal right to what you share on AO3. For that reason, we cannot get those works removed from other apps or sites.

As a fan author, do I even own the copyright in my fanworks?

Yes! As a fan author, you automatically own the copyright in your original expression. You don’t own any rights in elements of the canon you base your fanworks on, such as characters or settings, but you do own the rights in what you yourself have added to them. That means that people cannot copy and/or sell your fanworks without your permission.

What can I do if I do not want my works displayed on these apps?

Fan authors who find their works being distributed on apps without their permission can request that their works be removed. Most sites have takedown procedures (known as DMCA takedown procedures) that allow copyright owners, including fan authors, to request the removal of their works. Even if these particular apps do not have an official DMCA procedure, copyright owners can always use the contact information listed on the app’s description page to demand that their works be taken down from places they are not authorized. This means you can submit a notice containing the information below and ask the app maker to remove your works. As a matter of copyright law, sites or apps should comply with DMCA takedown notices and demands for removal.

What do I say in a DMCA takedown notice to get my works off an app I do not want them on?

If you want your works removed from one of the apps discussed (or anywhere else!), you can submit the information below in a takedown notice:

  • Your Name and/or Pseudonym as an e-signature
  • Link(s) to the unauthorized works (such as a link to the pdf, mobi, or hosting page) or other information sufficient to allow the site or app to identify the precise unauthorized works you want removed
  • Link(s) to an authorized version of your work (whether on AO3, Tumblr, or somewhere else)
  • An email address of the submitter (include it again even if it’s in the header)
  • This statement: “I have good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.”
  • This statement: “The information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.”

Finally, both the Google and Apple app stores have procedures for reporting apps that infringe copyright. They can be found at the following links:

App store: https://www.apple.com/legal/internet-services/itunes/appstorenotices/#?lang=en

Google Play store: https://support.google.com/legal/troubleshooter/1114905

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Published:
2019-04-01 17:02:32 UTC
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Banner by Erin of a spotlight shining the OTW logo behind the text spotlight on legal issues

It's an active time for OTW's copyright-law advocacy, and if you're in or from New Zealand, we need your help! Here's what you can do.

We're hard at work arguing for fan-friendly law around the world. In addition to our continuing work in the EU and our upcoming testimony to the U.S. Copyright Office about the importance of safe harbors for online service providers, we'll also be submitting a comment to the government of New Zealand in connection with that country's review of its Copyright Act.

Here's where you come in! As we've done in many countries, including Canada, Australia, the U.S., and South Africa, we'd like our New Zealand submission to include first-hand accounts from New Zealanders about the benefits of laws that promote the creation and sharing of transformative works.

If you’re in or from New Zealand and have expressed yourself, gained skills, been part of creative communities, or otherwise experienced the benefits of being able to create transformative works, we’d love to hear your stories. They can be long or short--just give us some specifics about why making and enjoying fanworks matters to you, so we can include those stories in our submission.

The deadline is approaching quickly! Please send your stories to us by April 3 using our contact form (scroll down to "Legal Advocacy") or e-mailing us at legal [at] transformativeworks.org. (Feel free to use a pseudonym if you don't want us to share your personally identifying information.)

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