There is popular misconception that fans who create works of their favorite fictional characters are allowed to create these works as long as they don’t try to make money from it. That supposed “loophole” has led to an entire genre of “fan fiction.” With the rise of the internet, fan fiction has exploded. The non- for-profit site, fan fiction.net, has millions of stories, in languages from all over the world. And it is likely that most authors on that site are actually copyright infringers.
So how do they get away with unauthorized use of copyrighted work?
Well, part of it has to do with a general misunderstanding of “fair use.” The Copyright Act identifies specific activities that are considered fair use; criticism, commentary, research, scholarship, news reporting, and non-profit educational uses. But it also includes a balancing test that weighs four factors in deciding if a use is fair. The four factors are 1) the purpose and character of the use; 2) the nature of the work, 3) the amount and substantiality of the use, and 4) the economic effect. Historically, if the nature of the work was a derivative work created for a non-profit organization or activity, then that weighed heavily in favor of fair use. And those types of works usually had a minimal economic effect, since there was no revenue. If an educational not-for-profit group used artwork, without permission, for a membership drive, courts would likely lean toward fair use. This unspoken rule became bastardized over time to become, “I can make derivatives of works as long as I don’t make any money.”
“GET A LIFE, will you people? I mean, for crying out loud, it’s just a TV show! I mean, look at you, look at the way you’re dressed!
That still doesn’t explain why there are so few lawsuits from an industry that seems to target every other infringer it can find. The likely reason probably has more to do with public relations and less to do with law. Creators really don’t want to anger their biggest fans, especially with the gossip box that is the Internet. It isn’t hard to see how suing a fan, whose only desire is to be part of the magic, could be a PR nightmare. The backlash could turn fans against the author. Plus, fan fiction isn’t that harmful. In a sense, it is like free advertising. While some fan fiction may be horrible, it doesn’t necessarily have a detrimental effect on the original work. Some think it is a valuable service for fans, keeping them entertained and engaged until the next true version of the work hits the shelves.
In the end, it is the fans themselves that have managed to make fan fiction safe from legal trouble by ensuring that works don’t hurt the creators’ ability to profit from the work. Fans are self-policing. Even to the point of policing continuity with the original works. Remember William Shatner talking to Star Trek fans on Saturday Night live: “GET A LIFE, will you people? I mean, for crying out loud, it’s just a TV show! I mean, look at you, look at the way you’re dressed! . . . You, you must be almost 30… have you ever kissed a girl?”
Some sites even set up rules for their users to follow. According to Plagiarism Today, fans agree to not profit from or sell copies of their creations. Second, they always proclaim that their work is unofficial and has no connection with the creators. Finally, they respond to requests from the copyright holder to remove content and work with the creator as needed.
That keeps most creators satisfied, but not all of them. Some authors such as Anne Rice, have been very aggressive in stopping fan fiction. In other cases, when fans have gone too far, lawsuits ensue. J.K. Rowling won a case against a fan who had spent seven years working on a Harry Potter Guidebook. The difference here was that a Michigan book publisher was set to sell it. Rowling has said “I took no pleasure at all in bringing legal action . . . The proposed book took an enormous amount of my work and added virtually no original commentary of its own.”
Fan fiction, then, has become a necessary evil and is likely here to stay. While fans’, and fan fiction writers’, understanding of copyright law may be wrong, it has become the unwritten rule that most creators seem to abide by. I guess the moral of the story is to never underestimate the power of your fans
As a photographer and Patent Attorney with a background in marketing, Steve has a unique perspective on art, law, and business. He is currently serving as the Chief Product Officer at Artrepreneur. You can find his photography at artrepreneur.com or through Fremin Gallery in NYC.