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 @ 8:20am

    Re: Re: Re: Re: Re: Re: Re:

    "But it's a similar question to the difference between mix tapes and bit torrent: Scale."

    Well, ignoring the stupid attempt you're making to try and equate fanfic and piracy - so? Are you honestly saying that the only thing that keep people buying original work instead of reading fan fiction is its availability? Because if so, that not only reflects poorly on the quality of the original, it does show a misunderstanding of why and how people create/consume these works to begin with. Certainly my experience of such fiction is that it fills the gaps for the biggest fans while they wait for the official stuff. Casual fans will just do something else unrelated until the next sequel comes along.

    "In part because you have the potential to harm the original writer's ability to make a living from the characters they created, by "using them up" in fan fiction stories. You could very directly diminish the market for a sequel, as an example."

    Is this just what you "feel", or do you have anything to back this up? Do you honestly think that the huge number of Harry Potter stories out there means that Rowling wouldn't be able to sell a sequel, for example, or that Meyer couldn't sell the next Twilight book if she decided to finish it?

    As with your anti-piracy comments, this seems to come from a vague feeling rather than anything related to reality. Can you name a franchise that's been stopped due to fan fiction? Because I can name a great many that have coexisted with fan fiction for decades...

    I also notice you don't address the other side of the coin (a constant stream of fan material can keep interest alive in an otherwise dormant franchise).

    "The second book would have not existed but for the first, this collection of characters, time, and subject matter are only relevant because of the first book, and as a result unfairly enriches itself from them."

    Again, what does this matter if it's a non-commercial work created purely for fans to have something to enjoy after consuming everything that's officially available?

    "No, it does not. The author puts the work out there knowing it will get distribution, seeding it on bit torrent or publishing it on a site "for free" that sells fan fiction as a compilation download. Putting it on a commercial site, even if the writer does not get specific commercial benefit, should still be an issue for the writer"

    Wow. So your position is literally that the author should have some responsibility for profit gained from the work, even if they personally put it out for free and somebody else profited later on without their blessing or intent? That's a mighty stretch there.

    "Yes, and the musician has to pay for the rights to use the song."

    No they don't. If they're recording or playing professionally, yes, but did Justin Beiber pay royalties when he played the cover version that got him noticed, or the thousands of other amateur musicians posting videos of them singing? Did other musicians pay royalties for the music they played to friends or on a pirate radio station before they got proper gigs? No, but it's the same thing.

    "Thanks for making my point for me!"

    You seem to be deliberately misunderstanding both the point and my words. What a surprise.

    "Umm, hello Mr Ad-hom"

    Aw, sorry did I hurt your delicate feelings? I can't help but notice you get all upset about that but don't address your false attribution of earlier comments to me. Keep it civil, but if you're the AC I think you are you really don't have room for the moral high ground.

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