Fandom and Fair Use

Fandom and Fair Use

Melissa Pepe

University of Arizona

Author Note

LIS 584 Intellectual Property/Copyright Final Topic Paper

Abstract

This paper explores fan works that includes: fanfictions, fan art, and other fan-created medias and fan work context to the fair use doctrine of copyright. The paper will discuss how fan works even if transformative do not always equate fair use when a creator makes a derivative work of an intellectual property. The paper will examine fair use doctrine, if it can be applied to fan works and provide examples of cases in which lawsuits challenged unauthorized works involving intellectual property. It will also discuss ownership of intellectual property by corporations and proposed adaptations to the law to help protect artists, writers, and creators when they wish to create work based on an existing fandom.

Keywords: fair use, transformative, parody, fanfiction, fan art, intellectual property, copyright, tropes,

Introduction

A fan may wish to showcase their love of a franchise with a drawing, creating their own interpretation of a comic character, by writing another chapter of their favorite book with a fanfiction, or collaborating with other fans to create a fan film to pay homage to a fandom they are part of. But can these activities be considered copyright infringement? If fans do not own the original content of the works they adapt, are they breaking the law by creating derivative works?

Unauthorized derivative works of intellectual property protected by copyright can be a violation of copyright law even if there was no intent by the fan to break the law. Many fan creators would claim their works fall under fair use, as it is transformative in nature made in good faith and often the creators do not seek to profit. However, commercialization of fanwork does occur. Examples include fanart being sold as merchandise, commissions for characters protected under copyright without obtaining licensing, and fan writers transitioning works into mainstream sales. The fandom can be beneficial to the market for the original owners of the IP by spreading the word and sharing the love of the fandom, creating and fostering a growing community fanbase, which oftentimes lead to more sales of the original products and demand for new materials. Fanwork such as fanart, fanfiction and fan made video content do not currently fall automatically under fair use as the fair use law is judged case-by-case basis, and perhaps there should be legal adjustments to allow non-commercial fanworks for popular intellectual properties, as these creations promote new artistic interpretations and voices and can lead to growth and value of the original works these fans are inspired by.

Who does fanwork harm? In most cases, the rights holders are multi-billion dollar corporations with monopolies on the intellectual properties they own. These entities are unlikely to suffer any financial loss from the existence of outside fans creating art or stories based on copyrighted materials. Fandoms create fanlore, exploring headcanon, addressing gaps in the original narrative, and contributing fresh ideas inspired by media. Fandoms can coexist in a thriving envoirment of culture that promotes the creation of art and new stories in a shared universe. While some fanwork can be potentially damaging to the original work by providing some competition or creating a narrative that is offensive to the original maker, most fans making fanwork are doing so because of their love for the original content.

What is Fandom

Fandom refers to a community of individuals who share an interest, knowledge, and enjoyment of an intellectual property. Becker defines a fan as “someone who enjoys a particular fictional world…” and fan work as any work made by someone who is a fan and not the original owner. (Becker, 2014). For example, Star Trek fans are commonly known as Trekkies and are familiar with the plot, characters, and details of the TV show. Fans can be part of multiple fandoms, such as Harry Potter and also like Game of Thrones. The medium inspiring fandoms can be from TV shows, movies, books, comics, video games, or other media. Some franchises have a wide range of far reaching content and expanded universes, but there are also fandoms of stand alone content. Fandom communities often group together to discuss, share, and promote the content they are a fan of online or in person at conventions.

What is Fair Use

The Fair Use Doctrine also known as Section 107 can be used as a legal defense against copyright infringement lawsuits. Section 107 was designed to protect freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances. Fair use is judged case-by-case on four factors.

The four factors are: the purpose and character of the use, the nature of the copyright work, the amount and substation portion used, and the effect on the potential market for, or value of the work. When fair use is considered for fandom, the main points evaluated tend to be the purpose and character of use and the effect on the potential market. The portions used will also be examined if the work contains any copied text from the original work. Fan works rarely involve the second aspect of fair use: the nature of the copyright work, because the material is usually already published and well known. There is no measure of ‘how much’ content is ‘fair’ or ‘the heart of the work’ or what defines ‘transformative 'so a creator cannot guarantee the work they make is fair use even if that is the intent. Since transformative is not defined, there have been attempts to establish guidelines to what may be considered transformative such as ‘new purpose’, ‘creative metamorphosis’ and ‘new insight’ (Becker, 2014). One measure a creator can take when claiming fair use is to complete a Fair Use Analysis when using work that is protected by copyright. Lipton states “much of fanfiction is highly transformative” and there’s a strong case for fair use when it’s non-commercial. (Lipton, 2014).

Fair use is determined case-by-case, so not all instances of fanwork can instantly be considered fair use even if one instance of such work was determined as such. Not all fanwork can be seen as infringement if another fanwork loses a lawsuit. Because of the complexities involved with fair use, the legal status of a fanfiction cannot be stated, (Becker, 2014) and remains in a gray area even if it’s a non-profit use. A way to possibly update the law to include an additional category in fair use to protect fanwork for non-profit purposes which might be a step in easing the landscape of the grey area fandom work currently resides in. Fanfiction usually aims to be transformative in nature as it does not copy the original verbatim story instead creates a new narrative with its own plot and does not ‘take the heart’ as the fans reading fanfiction are aware of the work the fanfiction is based on. (Bandali, n.d).

What part is Protected under copyright

Part of the complexity of fair use is by nature fandom is taking part of an original work but how does one determine if it’s ‘the heart of the work’ or what is a substantial portion? In cases of claiming transformative aspects, when art is inspired by another piece of art then how much needs to be different? Is fanfiction in any competition with the original work when it relies on the original work to exist? Is using a singular character enough to be struck down? Aren't artists and authors always inspired by pre-established stories and art? Commercialization of fanwork can be problematic. The initial fear of being worried about being sued if someone draws Spiderman as a cowboy may prevent someone from learning to draw at all. Fanfiction allows writers to focus on developing plot and writing styles since the characters and setting are often set up by the work they are inspired by, and often place disclaimers they do not claim ownership of those elements, yet there is no current legal protection of the activity even if it’s done for non-profit purposes. It can be unclear to a fan if the activity is illegal and IP licensing can be complicated and expensive to obtain.

Important Court Cases

Omegaverse Lawsuit

Tropes, scene a faire, genres or common story elements, cannot be protected under copyright. The idea itself of a wizard school is not unique and not protected under copyright law. However, the expression of that idea in the Harry Potter series by the popular author J.K. Rowling, along with the characters, setting, and plot elements is protected under copyright. Rowling has also established trademarks for many of the names linked to the franchise. Common character archetypes are also not protected, such as the ‘hero’, only specific uniquely identifiable characters can be protected, such as Rocky in the court case Anderson v. Stalone (Becker, 2014)

No singular case has set precedent to fanfiction. However some court cases have delved into fandom, fanwork, and intellectual property rights. One example is Ellis v. Cain also known as the Omegaverse Lawsuit. Two authors who wrote omegaverse books based on ‘werewolf’ genre tropes found themselves in a lawsuit . The author Cain and her publisher send DCMA takedown notices to remove the books written by Ellis that featured similar ideas common among the trope of the shared omegaverse. The court ruled that no plagiarism had occurred as both books had common elements; there was no copy of characters or content, just plot elements that would exist in the genre of any written material set in the Omegaverse. This court case is important to show that common trope elements of a story cannot be protected by copyright.

Tolkien Estate Vs. Demetrious Polychron

In the latest news of copyright, the author of a book based on the Lord of Rings Trilogy sued Amazon and the Tolkien estate for the Rings of Power TV show using elements of the plot from his book The Fellowship of the King. However his work was an unauthorized derived work of the copyrights owned by the Tolkien estate. The case of Polychron’s lawsuit was dismissed by a judge and then Demtrious was sued by the Tolkein estate. The Tolkien estate won and the author was required to destroy all the copies of his work. Polychron claimed initially he tried to get permission from the Tolkien Estate to write his book but never received permission or feedback to authorize the fan sequel. This case is important to show how a commercialized fanwork can be a violation of the IP owners. (Rufo, 2023)

Axanar vs Paramount

The Paramount company sued Axanar Productions for copyright infringement involving two Star Trek fan films made. The fanfilms used elements from Star Trek such as characters, species, costumes, and other elements, protected by copyright and trademarks. The court did decide Axanar’s work was not fair use because it used crowd source funding for profit and was not transformative because it was too similar to Star Trek. This court case was settled out of court, and Paramount studio developed guidelines for future fan films. This is an important case to show how the studio was willing to give fans feedback on how to make future fan productions that would avoid lawsuits and liability by establishing guidelines to follow when creating work based on Star Trek (Geuss, 2016).

Warner Brothers Entertainment v. RDR Books

The Harry Potter Lexicon was a fan made website that collected terms from the popular Harry Potter book series as written by J.K Rowling. However when a book version was going to be put into a published print version, the author Rowling and Warner Brothers sued the publishing company claiming the content was not transformative for fair use and violated copyright. The book was meant as a reference but included long quotes from the original materials. This case showcases that even though the intent was to make a fair use guidebook it can still be seen by court as infringement even though it was informative and educational in nature because the court saw it used substantial portions of copy (Schwabach, 2009). The Harry Potter Lexicon was rewritten with massive edits and eventually published removing the plagiarism portions of mass copy.

Suntrust Banks v.Houghton Mifflin

This case involved an unauthorized derivative work of the Gone with the Wind book The new book called The Wind Done Gone was written as a parody and found to be fair use as it was not a market substitute for the original and the purpose of the book was a parody. This case shows how adapting a pre-existing work in a unique way can fall under fair use when the intent purpose is parody, and even though the derivative work used characters and elements from the original book, there was a clear distinct variation and the parody was unlikely to replace the demand for the Gone with the Wind book in sales.

Salinger v. Colting

This case involves an unauthorized sequel to the Catcher in the Rye book. The fan sequel 60 Years Later: Coming Through the Rye tells the tale 60 years later but uses all the characters of the original book without permission. However the case was found to be a violation of the copyright because not enough context was changed by placing all the characters 60 years in the future. There was not any parody or critique of the characters by placing them in the future and the book was being sold for profit and would be a market threat if Salinger ever wished to write his own sequel book.

Anne McCaffrey

This is an example of an author actively seeking ways to not issue lawsuits. Instead Anne McCaffrey author has created guidelines for her fans to write works based on her intellectual property that take place in her created universe of Pern. Like with the Paramount case, this is an example of a creator setting standards rather than seeking legal action or lawsuits in order to provide fans a space for creation.Other authors have also expressed a willingness and even encouragement of fanwork so long as it is non-commercial and gives credit such as Neil Gaimen, who himself writes fanfictions, and George RR Martin. Gene Roddenberry the creator of Star Trek has also expressed approval of fan adaptations, “I have no objections to plays similar to Star Trek or even identical to Star Trek if done … on a non-profit basis as long as appropriate credit is given to the source materials” (Tushnet, 1997). Several publishers of Role Playing Games and systems have also encouraged fans to make original fan content, so long as they are not directly copying the books or using trademarks owned (Tushnet, 1997).

Not all authors are supportive of fanwork. Anne Rice has continually requested fanfictions based on her work be removed from websites like fanfiction.net and defends the copyright to her stories and characters. Rice’s attorneys and others have attacked Anne Rice fan-fiction writers, threatening copyright infringement claims (Greenburg, 2022).

It started in Fandom

Fifty Shades of Grey

The most notable work that started as a fanfiction is the book series Fifty Shades of Grey by E.L. James. This book started out as a Twilight fanfiction, inspired by the work of Stephanie Meyer. If it was ‘illegal’ to write fanfiction in the first place, we would have never gotten the transformative version. Fanfiction allows authors to use a preexisting setting and characters to develop their own ideas and writing styles. Stephanie Meyer has expressed no desire for suing James, and Twilight and Fifty Shades are clearly different stories for different audiences, even if the book started out as a fanfiction of Edward and Bella characters.

Cassandra Clare

The author Cassandra Clare who wrote the series Shadow Hunters and her book Mortal Instruments, City of Bones,started as a fanfiction writer for the popular Harry Potter series. She gained some popularity with her fanfictions involving the Draco Malfoy character. She adapted the work and transformed it into her own book series, removing the notable elements of Harry Potter and creating her own world and settings. This author did face an unrelated infringement lawsuit from a different author Sherrilyn Kenyon over similar terms such as ‘shadow hunter’ and certain magical objects used in the books; however the court found no plagiarism had occurred as the elements were not unique to Kenyon’s work.

"The Love Hypothesis" by Ali Hazelwood

This published book was originally penned as a Kylo Ren and Rey fanfiction of the Star Wars franchise. Once again the author adapted the work of the alternative universe to its own original content in a modern day setting. One can see the inspiration for the characters however the context, names, and plot are unique to the story and not at all related to Star Wars. These are a few examples of fan writers making books from the content showcase how writing fanfiction can develop new original stories. Similarly many artists start out careers by drawing their favorite characters.

The “Problem” with Intellectual Property

One of the main barriers to fan creators making fanwork is that many of the intellectual properties are not often owned by a singular creator but a mass corporation such as Disney. The Disney company has been purchasing the licensing rights and ownership of other popular fandoms, such as Marvel and Star Wars. With work for hire as well, many artists never own the rights to their own creations due to the agreements they signed when working for a company. So as an individual they do not profit after the work or character is created. Some examples lead to lawsuits such as Todd McFarlin worked with Neill Gaimen on the Spawn comic series and there was some dispute over who owned the character Angela from this venture which led to a lawsuit over the rights. Another notable instance is Steve Ditko’s estate with Marvel as Ditko created many characters before he worked with Marvel that later entered into the Marvel comics. A court judge also found that comic-book characters initially created by artist Marv Wolfman became works for hire even though he was not contracted when he enhanced them for Marvel Comics (Greenberg, 2022). Large companies like Nintendo, Disney, Studio Ghibli can hire agencies to actively search the internet and do takedowns notices of content including unlicenced fanart of properties and characters they own. Copyright protection in constitutional goals for the public good. Judge Kozinski has stated “overprotection of intellectual property is as harmful as under protecting it” (Tushnet, 1997). Work for hire and corporation controls also makes it difficult for fans to determine whom to licence from, (Greenburg, 2022) as characters may be classified as work for hire owned by a company, sold to another company or owned by the original creator.

How many intellectual properties are derivative of preexisting works such as fairy tales, myths, and public domain stories? Many of Disney’s properties are in a way their own fan version of a work. So Disney don’t own Alice in Wonderland, which is public domain, but they do own their version of the movie created based on the Lewis Carroll work and the right to make art, products, and merchandise based on this Disney’s Alice. Now when other creators make a new version of Alice, they are influenced by the original story but also by Disney and have to make sure that their adaptation is not similar enough to Disney’s vision of Alice because Disney owns the copyright to that character design.

It is also important to note the way characters change and evolve over time due to the image the companies wish to have of the characters they own or the character changing hands. A company has the right to control how the character is over time because they have bought the rights to from the original owners, such as DC updates Batman and Superman, so much they are distinct and unique from previous interactions (Tushnet,1997). However, fans may have their own visions or prefer older iterations or a preference for older canon such as Star Wars pre-Disney and in the Lucas Films era. Fanwork created and inspired by these old elements can be transformative and unique and still fall under fair use when done for non-profit purposes.

The small-time fan creator is rarely a threat. The length of copyright law has continually extended to now be 70 years past the death of an author or 120 years past it’s initial creation when made by a company, meaning in our lifetimes none of these fandoms will become public domain. The public domain is meant to benefit the masses, but by extending copyright terms, the only ones who seem to profit are wealthy corporations that buy up the rights of intellectual properties. Even when a character is placed in the public domain, such as Mickey Mouse, or Winnie the Pooh, only certain variations of these characters can be used, and the companies make other variations and versions and own trademarks and still protect products such as Mickey Mouse from being used by the public. The copyright law is meant to promote the progress of arts and fandom is about creating works, yet fans are under the potential threat of lawsuit and being punished for making derivative content even if there is a transformative nature to the piece. Media inspired by public domain works see several unique adaptations and varieties because they are allowed to thrive without the threats of lawsuits for infringement. BBC and CBS both had adaptations of Sherlock Holmes with two different TV series, and there was a market for both versions, so it is possible that fanwork can also exist alongside and not take away profits from corporations. (Romanenkova ,2014).

Kindle Worlds

Amazon released the service Kindle World in 2013 a website designed for self-publishing fanfictions based on certain licenced products the company owned. Kindle and Amazon saw potential commercial markets for fanfiction writing (Lipton, J. D. 2014). However the success of the Kindle Worlds seemed limited and this service was shut down in 2018. Commercialization and a licensed market for fanfiction can potentially lead to more corporate control over stories and fandom by legal copyright laws. Unauthorized and unofficial works still existed outside of the attempt. Kindle World was a corporate attempt to offer licensing rights with restrictions on content, and overall, fans just weren’t ‘buying’ into the idea of paying to write stories even with royalty incentives. While researching Kindle Worlds, other older defunct sites such as FanLib, where fans would enter contest to write for TV shows, show a trend in encouraging fans to write content for properties but then deny the fan writers any rights to the intellectual property to the finished content, as submitting work is then owned by the website (Jenkins, 2007).

The argument that fanwork takes away market shares from official licensed merchandise is hard to see, when Star Trek novels continue to sell even though thousands of unauthorized Star Trek fanfictions also exist on the internet for free (Tushnet, 1997). Fandoms usually consume both mediums, the products produced by other fans, and the materials offered by companies of the intellectual properties.

The Organization for Transformative Works

Archive of Our Own is a popular website that hosts fanfictions. Other fan ficiton websites, such as fanfiction.net, and Wattpadd are for profit, however A03 is a non-profit. The organization that created this website is dedicated to “We are committed to defending fanworks against legal challenge” and have created petitions for the copyright office such as “2023-2024 Petition to the Copyright Office in favor of a DMCA exemption for makers of noncommercial remix”

Conclusions

Fandom works show a fans love of an intellectual property, however the rights holders may see it as a potential threat when it's monetized. Fans often create work such as fanfiction with no intent to profit, yet there is no guarantee protection that such works are fair use as transformative as that is currently decided on a case-by-case basis. There needs to be updates to the Fair Use Law that helps protect transformative fanwork made for non-profit from large corporation lawsuits when they simply are inspired to make work based on well known franchises and characters, and their footprint is unlikely to take away profits from these companies and the work can coexist. Fans then have opportunities to learn and grow in artistic endeavors with the inspiration of stories and characters like previous generations being inspired by fairytales and mythologies that are now housed in the public domain. Another possible solution is for companies, corporations, and fandom communities to create guidelines, clearer legal licensing, and a safe space to create fan work (Romanenkova, 2014).

References

Bandali, Narisa.(2019)."I Wrote This, I Swear!: Protecting the "Copyright" of Fanfiction Writers from the Thievery of Other Fanfiction Writers." Journal of the Patent and Trademark Office Society, vol. 101, no. 2, October 31, 2019, pp. 274-312. HeinOnline, https://heinonline-org.ezproxy2.library.arizona.edu/HOL/P?h=hein.journals/jpatos101&i=278.

Becker, Jane M (2014).. "Stories around the Digital Campfire: Fan Fiction and Copyright Law in the Age of the Internet." Connecticut Public Interest Law Journal, vol. 14, no. 1, Fall-Winter 2014, pp. 133-156. HeinOnline, https://heinonline-org.ezproxy2.library.arizona.edu/HOL/P?h=hein.journals/cpilj14&i=143.

Ellis, L. (n.d.). Into The Omegaverse: How a Fanfic Trope Landed in Federal Court. YouTube. https://www.youtube.com/watch?v=zhWWcWtAUoY

Friedman, Emily C. (2024). “What We Talk about When We Talk about Fanfiction.” Eighteenth Century Fiction, vol. 36, no. 1, Jan. 2024, pp. 159–68. EBSCOhost, https://doi.org/10.3138/ecf.36.1.159.

Greenberg, M. H. (2022). Fandom and the law : A guide to fan fiction, art, film & cosplay. American Bar Association.

Geuss , M. (2016, June 26). Unswayed by Axanar, CBS and Paramount offer 10 rules for fan film makers. Ars Technica. https://arstechnica.com/gaming/2016/06/cbs-paramount-offer-rules-for-fan-film-makers-amid-axanar-dispute/

Jamar, S. D., & Glenn, Christen B'anca. (2014). When the author owns the world: copyright issues arising from monetizing fan fiction. Texas A&M Law Review, 1(4), 959-978.

Jenkins, Henry. (2007, May 22). Transforming fan culture into user-generated content: The case of Fanlib - pop junctions. http://henryjenkins.org/blog/2007/05/transforming_fan_culture_into.html

Kundle, Shivani. (2022). "Fanfiction, Fan-Culture , Fan Art, And Copyright Law." Mondaq Business Briefing, 1 Apr. 2022, p. NA. Gale Business: Insights, link.gale.com/apps/doc/A698952900/GBIB?u=uarizona_main&sid=bookmark-GBIB&xid=da9309de. Accessed 13 Sept. 2024.

Lipton, J. D. (2014). Copyright and the commercialization of fanfiction. Houston Law Review, 52(2), 425-466.

Romanenkova, Kate. (2014). The fandom problem: precarious intersection of fanfiction and copyright. Intellectual Property Law Bulletin, 18(2), 183-212.

Rufo, Y. (2023, December 18). Lord of the Rings Fan Fiction Writer sued for publishing own sequel. BBC News. https://www.bbc.com/news/entertainment-arts-67753073

Schwabach, A. (2011). Fan fiction and copyright : Outsider works and intellectual property protection. Taylor & Francis Group.

Schwabach, Aaron. (2009). "The Harry Potter Lexicon and the World of Fandom: Fan Fiction, Outsider Works, and Copyright." University of Pittsburgh Law Review, vol. 70, no. 3, Spring 2009, pp. 387-434. HeinOnline, https://heinonline-org.ezproxy2.library.arizona.edu/HOL/P?h=hein.journals/upitt70&i=393

Stendell, Leanne. (2005). Fanfic and fan fact: how current copyright law ignores the reality of copyright owner and consumer interests in fan fiction. SMU Law Review, 58(4), 1551-1584.

Tushnet, Rebecca. (1997). Legal fictions: copyright, fan fiction, and new common law. Loyola of Los Angeles Entertainment Law Journal, 17(3), 651-686.

Williams, Ellen. (2022). “I’ll Take It from Here: The Psychology of Fanfiction and Its Relationship with Copyright Law.” Law & Psychology Review, vol. 47, Mar. 2022, pp. 225–47. EBSCOhost, research.ebsco.com/linkprocessor/plink?id=79e86082-e887-3266-82c8-a32e552ea30c.

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