Tag Archives: Fan Fiction

Where Fan Fiction Stands On Copyright: A Legal Primer

Originally Published on Techdirt.

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 storiesin 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.

Understanding The Legal Ramifications of Fan Fiction

Originally Published on Techdirt.

Fan fiction is one of those areas that treads that fine line between what some people find to be fair use and others find to be infringing. These derivatives of the original work often take form in ways that the original creators did not intend, expect or find reasonable. When it comes to some creators, fan fiction is something to be embraced, but some also feel that it violates their copyright. So with such murky water in this area, how are fan fiction writers to know if their creative work is fair use? This is where Rebecca Tushnet comes in with an interview with Reason.

In this interview, Rebecca highlights the ways in which many companies have accepted fan fiction and other fan created derivative works as a necessary part of getting consumers to engage with the content.

It takes a big studio to make The Avengers, but it doesn’t necessarily take a big studio to write a piece of Avengers fan fiction. Big content companies largely recognize that fan activities are really good for them because they engage people.

Additionally, Rebecca is a member of the Organization for Transformative Works, which helps fan fiction creators understand their legal rights and defend themselves in those cases where the original creator seeks to take down such works—something that happens far too often, even when the creator has shown support in the past.

Regardless of the potential legal ramifications, creators need to realize just how much of a cultural impact their works have on their fans. As people grow to love certain works, they seek to express that love by creating and distributing content that they feel expresses their fondness for it. What we shouldn’t see, and what makes this organization so important, is creators lashing out at fans for being fans. Think about how ridiculous that sounds. Why would anyone want to punish a fan for nothing more than loving the original work or artist? Sadly, ridiculousness is not above the mindset of many people and companies. However, by embracing such fan creativity, not only are you fostering the overall community and culture that surrounds your work, but you are also allowing real and powerful growth. As more people find your work through derivatives, they will seek to support you as well.