Where Fan Fiction Stands On Copyright: A Legal Primer

from the know-your-rights dept

Many people who fall in love with a franchise or story will show that love through the creation of fan art, fan fiction and other derivative works. The question over the legality of those works is often a murky area of copyright law. A few weeks back, we highlighted a video that touched on the nature of those works when it comes to copyright and the potential to infringe. However, it did not go into any specifics on the legalities.

Lucky for us, Lauren Davis, over at io9, decided to clear the air a bit by explaining the legal landscape behind fan works, citing case law and the law itself. To help pull it all together she even got the help of Rebecca Tushnet. Lauren's breakdown is pretty thorough and is well worth a full read.

The first area discussed in this breakdown is that of character copyright.
To a certain extent, creators have a copyright on their characters. If I'm writing a story about Harry Potter, for example, J.K. Rowling's copyright definitely comes into play.
Not long ago, we discussed a case revolving the use of public domain stories in which the characters and settings are still in use in copyrighted stories. This case, brought by Edgar Rice Burroughs Inc., relied a lot on the fact that the characters from ERB's Tarzan and John Carter stories are still used in copyrighted works and are trademarked aspects of the estate's business. While that suit revolves primarily around trademark law, it still highlights some of the foggy landscape around the use of characters from others stories. Using the characters from a work currently covered by copyright law can be tricky, especially if it can be shown that your use doesn't fall under fair use.
On a practical level, Professor Tushnet notes that "the boundaries are really super fuzzy. So in general, when courts face an issue like that, they tend resolve them as matters of fair use. They just assume that there's copyrighted character and then analyze what is the fair use."
So what exactly is covered by fair use? Lauren takes a look at the basic four factor test that many judges will use when deciding a case brought against fan fiction.
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
We discuss these four factors quite a bit. Many things including blogging, video walk-throughs and tutorials, news and commentary and many other uses of copyrighted works rely on these four factors to prove their use is fair. Unfortunately, these four factors are not a protection from accusations of infringement, merely a defense when brought to court. This has led to the current climate of takedowns on sites like YouTube and others. So it becomes increasingly necessary for fans to be cautious in how they create and distribute their work.

This climate of cautiousness can often lead to over cautiousness as well. This chilling effect leads many creative people to not create or distribute their derivative works in the fear that they might become a target of a lawsuit. These fears can be compounded by the over zealous use of the DMCA, cease and desist letters and other takedown notices that companies use. As people have fan works taken down without an explanation of why, or because of overly broad copyright claims, the culture of fear spreads.

Hopefully, as more and more creators recognize the value of derivative works, we will see fewer and fewer DMCA notices and cease and desist letters. Until then, it is always important to understand your rights as well as the law if you do work with the creations of other people. Knowing your rights under copyright law and fair use, will help you respond to claims of copyright infringement. While it may not get your works back online, it will help those who rely on such takedowns to understand that we aren't just going to roll over for them.

Filed Under: copyright, fan fiction, trademark

Reader Comments

The First Word

The fans who write fanfiction, make fan videos, etc....are usually the biggest fans of the original work. They're the fans that are often most loyal, and the fans who often spend the most money. And those fans are often what keeps your work alive during "down" times, and once it's completed and not being added to. To attack fan material is to attack those fans.

I've loved fan fiction since I was a little girl and I've grown up reading it in various fandoms of movies, shows, etc...that I've loved. I've also spent scary amounts of money on official product at the same time.

I love conventions, I love fandom. I love being able to share that love with other fans on the internet. It's an example of one of the best things about the internet: the way you can connect to other fans and share your love of something.

Fan fiction is not about money or profitting from a creator's work. It's not about being "unoriginal". It's about loving the material so much and wanting to share in that sandbox with other fans. It's fun and adds to the fandom experience. Start taking that stuff away, and I have less reason to want to stay on the beach.

I would love to write an original novel myself. And if I were ever lucky enough, I would embrace fan fiction of my work wholeheartedly.

And I'll never buy into the idea that because we suddenly have the the internet, we shouldn't do things we've done for years, like share fan work like fan fiction (which used to exist in printed "zines") or that it's "wrong".

Creators: I'm not making a dime off my fan material. But take away my ability to make it and enjoy it, and I'm a lot less likely to spend another dime on the official stuff out of disgust. I don't like being penalized or criminalized for being one of your biggest fans.
—Anonymous Coward

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  1. icon
    PaulT (profile), 16 Aug 2012 @ 7:12am

    Re: Re: Re: Re: Re:

    "They are intertwined without any possible simple way to separate them. The distibution wouldn't happen with out the site, and the site wouldn't have material without the stories. So they are sort of symbiotic here."

    You're aware that fan fiction predates the internet, right?

    "Availability has a lot to do with the size of the market"

    Which has what to do with non-commercial fair use?

    "and can make one wonder at what point the fan fiction goes from merely a cute fun thing for friends and becomes a competitive product."

    When it starts being distributed for profit, perhaps? You seem to be trying to pin that down to the number of people it's available to. I disagree.

    "and thus can perhaps harm sales of the original"

    Or expand them. Try looking at all the angles here, not just the ones that allow you launch half-assed attacks on this site and its commenters.

    "can also dilute the original writer's privilege to write future books in a series or as a sequel."

    Only if you presume that fans will be happy with unofficial knock-offs rather than officially produced books by the original authors. That's a rather strange position to take.

    I'd personally be more concerned with the massive numbers of non-fanfic rip-offs that flood the market to fill the gaps created by people waiting for the official sequels. But they're for-profit and use different character names, so you seem to find those more acceptable for some reason.

    "I can write a civil war book influenced by Gone With the Wind and other books about the era, or I can write "The Wind Done Gone" which copies the characters from the original."

    ...and the difference between those books other than the character names and the direct acknowledgement of influence would be...? Other than the characters, they'd both be original works, who cares what the characters are called if the motivation for writing is not profit?

    "Again, if you are going to hold Disney up as a copycat"

    Try addressing the words I actually say if you're going to attack me. I didn't say that.

    "The intention doesn't matter if the product is getting widespread distribution on commercial or for profit sites."

    Yes it does - to the author. The sites can be prosecuted for profiteering, but that doesn't affect the original work nor the intentions of its author. A pity you seem to think that the actions of a 3rd party should cause problems for an unrelated 1st party, but that is consistent with your other views I suppose.

    "Heck, if the fan fiction is written in part to boost the profile of the writer, there is "intent" to profit, even if it's not directly financially."

    If the financial benefits are not direct, then there's no more problem with an author doing this than a musician covering the songs of others before writing his own original work. Are you saying that all musicians who ever played cover versions for a group should owe their later financial success to earlier musicians? Other than the fact that the internet allow more people to read/hear/view the fan pieces, what's the problem? Should E.L. James hand back all her profits to Stephanie Meyer because the early versions of the story were Twilight fanfic?

    "Tagging yourself as a "fan" doesn't suddenly negate the laws - or common sense."

    Something you display very little of when on your "I'm right you're wrong" high horse, as seen here.

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