Posted By: Julia Ketchum
Have you ever read a book or watched a movie and thought maybe it should have ended differently? Or have you wanted to see a copyrighted character interact in a new situation outside the normal tale? For fan fiction writers, using copyrighted characters and copyrighted settings to make a new story is an exciting way to show their fan appreciation for their favorite story. Fan fiction is defined by Merriam-Webster is “stories involving popular fictional characters that are written by fans and often posted on the Internet” and has been around for ages, even before the internet. Fan fiction can be based on any media from video games, plays, books, to even fan fiction written about real celebrities. With the rise of the internet, fan fiction is now easy and free to distribute to others on the internet thought such sites as fanfiction.net, archiveofourown.org, and wattpad.com. However, is fan fiction legal? Firstly, we will look at the exclusive rights copyright holders have over their own copyrighted product and whether or not any copyright rights are infringed by fan fiction. Next, we will look at the exception to copyright liability: Fair use. Looking at the factors of fair use, we will try to argue a position on fan fiction and whether or not it is protected by fair use. Overall, the factor of ‘transformative’ will determine if fan fiction is subject to copyright liability or if it should be considered fair use.
In the United States, the statute that grants a copyright owner exclusive rights is 17 U.S. Code § 106. This statute grants six exclusive rights, though only one right applies directly to fan fiction: derivative works. Most of the rights that are omitted in this piece pertain to actual copying the original work, performing the copyright work, or displaying the copyright work. Fan fiction is not about directly copying the work. For example, take the copyrighted character Batman. If Batman were to be a fanfiction, the character Batman would be used. However, the exact storyline of a copyrighted Batman comic (like Alan Moore’s The Killing Joke) would not be copied panel by panel and posted as fan fiction. The story line in a fan fiction would be different, not an exact copy. The exclusive right of performing the copyrighted work or displaying the copyrighted work also are omitted since the copyrighted work is not being displayed or performed. Fan fiction is a written media and it is altered from the copyrighted version rather than an exact copy.
The relevant parts of the statute reads:
“Subject to sections § 107 through § 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
. . .
(2) to prepare derivative works based upon the copyrighted work;
What is a Derivative Work:
As enumerated above, copyright holders have the right to prepare derivative works based upon the copyrighted work. A derivative work is defined in 17 U.S.C. § 101 here. Looking at the statute itself, it seems likely fan fiction would qualify as a derivative work because it is a modification of an original work of authorship. However, the statute is very broad. A lot of works would qualify as derivative works. For example, most books tend to borrow on the ideas of others (see Emerson v. Davies). Thus, it is more useful to look at the case of Micro Star v. Formgen. As noted in this case, the 17 U.S.C. § 101 is overly broad so the court cites case law (see Lewis Galoob Toys v. Nintendo of America and Litchfield v. Spielberg) for a simpler test. Accordingly, the Micro Star court states “One of these is that a derivative work must exist in a ‘concrete or permanent form,’ (citing to Galoob [internal quotation marks omitted]), and must substantially incorporate protected material from the preexisting work.” We will use this test in our analysis.
Why Fan Fiction Would be Considered a Derivative Work:
Using the Micro Star test, both factors will be met. Clearly, factor one is met. Fan Fiction is written so it is in a concrete or permanent form as a written medium, either typed or handwritten. Factor two is also likely met. The Micro Star court examines this factor by looking at if the copyrighted work and the alleged derivative work are substantially similar in idea and expression. Similarity in idea is particularly relevant in a fan fiction analysis since Micro Star considered similar in idea to include plot, theme, dialogue, mood, setting, and characters. In our case, compare a copyrighted work with a fan fiction. Both the copyrighted work and fan fiction will likely share the same mood, setting, and characters. (Though see AU Fanfiction for an example of not using the same idea elements of the copyrighted material). Typically, the fan fiction plot may be slightly different, but like the copyrighted plot. For example, if reading a Batman fan fiction, the exact plot line of The Killing Joke will not likely be coped, but likely Batman will be still doing the same ‘Batman’ activities of fighting crime, doing detective work, being Bruce Wayne, etc. The exact plot is not copied but generally the same plot activities one would expect from a Batman copyrighted comic would be used. The same can be said for the dialogue. The dialogue will not be the exact same, but most fan fiction writers strive to keep the copyrighted characters ‘in character,’ meaning that the copyrighted character will be acting like he or she does in the copyrighted material, including the dialogue used. (Though see crack fic for fan fiction that has a copyrighted character act ‘out of character.’) Continuing with Batman as our example, Batman is a very serious, stoic character in the copyrighted material and in a Batman fan fiction, an ‘in character’ Batman would not be happily conversing about the magic of friendship, discussing hosting tea parties, or talking about unicorn rides and sparkly rainbows, etc. Like the plot, the exact plot is not copied but elements one would expect from the copyrighted characters dialogue would be similar in a fan fiction. As the plaintiffs in the case argues that they did not copy the expression of Duke Nukem, Micro Star continues with this very relevant passage:
“The work that Micro Star infringes is the D/N-3D story itself—a beefy commando type named Duke who wanders around post-Apocalypse Los Angeles, shooting Pig Cops with a gun, lobbing hand grenades, searching for medkits and steroids, using a jetpack to leap over obstacles, blowing up gas tanks, avoiding radioactive slime….and the stories told in the N/I MAP files are surely sequels, telling new (though somewhat repetitive) tales of Duke’s fabulous adventures. A book about Duke Nukem would infringe for the same reason, even if it contained no pictures.”
This comment can easily be applied to fan fiction. Fan fiction uses substantially similar elements of the copyrighted material and typically uses the same character and setting.
However, the analysis is not finished. It is important to look at the ‘subject to sections § 107’ line closely within 17 U.S.C. § 106. This line is states that even if one of the exclusive rights is being violated, it is important to look at section § 107, the Fair Use exception to copyright liability. Thus, even if the right to make derivative rights is violated, if fan fiction is protected by Fair Use, then it is not violating copyright law.
17 U.S.C. § 107 – Limitations on Exclusive Rights: Fair use
In the United States, the statute that defines Fair Use is 17 U.S. Code § 107. It reads:
“Notwithstanding the provisions of sections § 106 and § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(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.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.”
We will break down each factor and see if Fair Use applies to fan fiction keeping these general thoughts in mind. Firstly, a fair use analysis is not a bright line test and requires a case by case analysis (see Campbell v. Acuff-Rose Music, Inc). For the purposes of this discussion, we will be discussing the typical fan fiction, not AUs or crack fics. Secondly, as stated in Field v. Google, the first and fourth factor are typically given the most weight though no single factor determines the analysis. Thirdly, as stated in the U.S. Constitution under Article 1, Section 8, Clause 8, copyright law exists to promote the progress of science and the useful arts. This is echoed in the statute by including the exceptions of criticism, comment, news reporting, teaching, scholarship or research in 17 U.S.C. § 107. It must be conceded that fan fiction does not qualify as any of the express purposes as listed in § 107 and is not promoting the progress of science and the useful arts. While fan fiction can be entertaining to the public and is available to the public, it would be a hard sale to consider it a public good like an internet search engine that will greatly help society at large. Thus, we will proceed to the four factors of fair use:
First Factor: Purpose and Character
Commercial or non-profit
Courts look to see if the allegedly infringing work is commercial or non-commercial in nature. Typically fan fiction is not commercial. Fan fiction writers are unpaid and write for their own amusement. The fan fiction is freely accessible online. Fan fiction writers do not receive any money from their work. A fan fiction writer with over a thousand readers gets the same amount of money as the fan fiction writer who has no readers: zero dollars.
Courts will also examine whether the work is transformative. As defined in Campbell v. Acuff-Rose Music, a work is transformative if it “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” Courts also examine whether the purpose of the alleged copyrighted work is different than the original work. For example, a photo displayed on the internet for aesthetic purposes and then allegedly infringed when displayed as a purpose for electronic search results was determined by the court as serving a different purpose (see Kelly v. Arriba Soft Corp). This court continued the different purpose was useful for determining if the work was transformative. In contrast, a work is not considered transformative if it is merely changing the medium the copyrighted work was displayed to another medium with no changes (see A&M Records v. Napster).
It is unclear if fan fiction would be considered transformative. Following the standard from Campbell, a transformative work would add something new with a further purpose or character and would alter the first with a new expression. It is clear fan fiction does add something new and does alter the first with a new expression if the fan fiction is adding an original story line. For example, a fan fiction using Batman with a new villain with his own background and objectives would have every scene with the new villain in it as a change from the copyrighted story. The fan fiction writer is also making unique decisions when deciding how to tell the new story through word choice and how to describe the scene. A story never presented in the copyrighted comic could be different enough to be considered transformative since it is ‘adding something new’ and ‘altering the first’ even though the characters and setting are the same as the copyrighted work. Fan fiction would also not be considered just a medium change either. Since fan fiction involves a new story, it could not be accused of just switching the medium from a copyrighted comic book to a fan fiction written format. However, unlike Kelly v. Arriba Soft Corp or Fields v. Google, fan fiction is not providing a new purpose like a search engine does. Both the copyrighted work and fan fiction share the same purpose as entertainment.
Could an original plot be enough to give fan fiction a further purpose or character? Raizel Liebler in his article writes that fan fiction should be considered as secondary creativity that does move beyond the copyrighted work, providing a new character/purpose. Many fan fiction writers pride themselves on coming up with original plots and dislike plagiarism. It is unknown how a court would rule on if a fan fiction would be transformative as there has not been a case to address this issue. There is a strong argument that a fan fiction could be original enough to be beyond the copyrighted story but each story would require a case by case examination. Stories that take from one source and use characters from another source add little to no original content. For example, a fan fiction taking the characters from an anime and using the exact story line of Beauty and the Beast adds little in original content. However, the stories that are heavily original story lines would likely be considered transformative.
Second Factor: Nature of the work
This factor seems to weigh slightly against fan fiction as fair use. While the copyright holder has used its one time right to control the manner it was copyrighted in (see Harper & Row, Publishers Inc. v. Nation Enterprises), the copyrighted work is creative in nature (see Campbell v. Acuff-Rose Music). Courts tend to protect copyrighted creative works more than fact intensive works.
Third Factor: Amount Used in the Work as a Whole
This factor is also ambiguous. Fan fiction does use elements from the copyrighted story and adds on its own content. While courts have held that completely copying an original work can prevent a fair use defense, courts have not firmly answered the question of how much is too much to prevent a fair use defense. Even if a small portion is copied, if the small portion is particularly unique, a court could find fair use does not apply (see Baxter v. MCA, Inc.). On the other hand, how do you quantify an amount used when a fan fiction uses a character from a copyrighted work? This factor is also closely related to the transformative factor; if courts found the work to be transformative, this factor would likely be minimized due to the transformative nature of the work like in Field v. Google.
Fourth Factor: Effect on the Market
This factor weighs towards fan fiction. Fan fiction does not drive business away from the copyright material. Fan fiction tends to clearly identify itself as not the copyrighted material so there is no confusion about it being fan fiction. Fan fiction is also written by fans so the fans are still engaging in the copyrighted market rather than superseding the market.
Fan fiction should be considered as fair use under these factors. Factor four, an important factor according to Field v. Google is clearly for fan fiction. Factor one is a close one, but it should support fan fiction. Fan fiction is typically non-commercial. It should also be considered transformative if the fan fiction has added enough original content to add a new character or purpose beyond the copyrighted material. Factor three is close as well since it is unclear how much of the copyrighted work can be used. Fan fiction typically includes lots of original creative choices and an original plot. However, until a case is accepted to clearly define the legal status of fan fiction, fan fiction will continue to live in a state of legal limbo.