Fan Fiction and Copyright: Outsider Works and Intellectual Property Protection

Citation

Sensarkar, N. (2012), "Fan Fiction and Copyright: Outsider Works and Intellectual Property Protection", Arts Marketing: An International Journal, Vol. 2 No. 2, pp. 166-170. https://doi.org/10.1108/am.2012.2.2.166.1

Fictional works vs fan works: copyright dilemmas

In recent times works of fiction, like J.K. Rowling's Harry Potter series, has met with tremendous success by allowing the public to immerse itself in fantastical tales consisting of imaginary worlds and characters possessing magical powers. Such popular works of fiction have substantial fan base who actively engage with the original work through the creation of “fan works” that use the original work's fictional worlds and/or characters inhabiting it (Schwabach, 2011, p. 8). Such works may be fictional or non‐fictional in nature and can be created in any medium. When fan works are fictional they are called “fan fiction” and include “all derivative fiction and related works created by fans, whether authorized or unauthorized by the author of or current rights‐holder in the original work” (Schwabach, 2011). Works of fan fiction are not new, but have generally been at the periphery of the mainstream media business. However, in the age of internet they have experienced rapid growth in terms of volume and popularity amongst the enthusiasts of the original works (Schwabach, 2011, p. 1). This book deals with this phenomenon and its implications for intellectual property rights, specifically copyright law.

Professor Schwabach brings out the legal issues clearly and succinctly. He examines the consequences for the substantive law and its enforcement. With regards to substantive copyright law, he argues that since most works of fan fiction are to some extent “derivative works” as understood within the US Copyright Act 1976, it begs the question whether such works can fall under various exceptions and limitations to copyright and/or could be “protected as transformative uses”? (Schwabach, 2011). This discussion relates to economic rights that is one aspect of any copyright framework. Professor Schwabach goes beyond this facet to examine the potential infringement of the moral rights of authors of the original work by fan fiction, and the limitations of the extant US copyright regime in dealing with such matters. In relation to enforcement of copyrights, the book highlights an interesting dilemma. On one hand, unauthorized fan fiction may infringe exclusive copyright rights of the author/right‐holders in the original work, and may lead to revenue losses. In order to curb this, the author/right‐holders may choose stringent enforcement of their rights. This presents a possibility of alienation of the very fan base which is essentially responsible for the success of the original work. Apart from copyright issues, the book briefly touches upon issues regarding trademark infringement.

The book consists of five chapters. The introduction sets the scene by giving examples of three significant disputes between authors of/right‐holder in original works and authors of related fan fiction works that give rise to the aforementioned legal issues. This is followed by Chapter 1. This is very detailed and informative as it provides the hierarchy within the genre of fan works, by diving it into three categories, namely, fan works, fan fiction and “fanfic” (Schwabach, 2011). Fanfic is understood as a subset of fan fiction, which in turn is subset of fan works. It defines and provides illustrations for all these types of fan‐generated works. From the legal perspective, the relevant portions of this chapter are the discussion regarding “Slash” (Schwabach, 2011, pp. 10‐13) and impact of internet on the relationship between authors of/right‐holder in original works and authors of associated works of fan fiction. “Slash” refers to those fan fiction that explore the romantic and erotic interactions between characters, like Kirk/Spock of Star Trek. Even though such use of the original work does not raise copyright issues, Professor Schwabach gives an example of a US district court's ingenuity in its application of the trademark concept of dilution by tarnishment to copyright to stop such use. The investigation into the challenges posed by the fan fiction, published and disseminated over the internet, regarding copyright, is interesting but not unknown territory for anyone interested in and/or specializing in intellectual property rights.

Focusing on the copyright issues, the Chapters of significance are 2 and 3. They deal with the following two questions, respectively. First, “whether the underlying work or element (such as a character) is protected by copyright, and second, if so, whether the fanfic or other fan work violates that copyright” (Schwabach, 2011, p. 20).

With regards to the first question, the law regarding the copyright protection of fictional characters described in text rather than pictorially in the original work is unclear and hence becomes the focus of the examination undertaken in Chapter 2. This chapter states that it is a common belief amongst authors of the original work and fan fiction that the characters created by the former receive copyright protection independent of the original work in which it appears. Professor Schwabach dispels this notion by presenting a more complicated and an ambiguous picture. He examines the situation by critiquing two tests developed by the courts, namely, “The ‘sufficiently delineated’ test” and “The ‘constitutes the story being told’ test”. The former was developed by the US courts in the Second Circuit in 1930. Thereafter it was applied in the famous case of Burroughs v. Metro‐Goldwyn‐Mayer Inc[1], where the court declared that the fictional character of Tarzan will be protected independently of the original work, that is, the Tarzan of the Apes authored by E.R. Burroughs, as it was fully delineated when introduced in 1912, as Lord Greystoke, a feral orphaned boy, raised in the jungle by apes, whose first human language was French, and who preferred to live in the jungle vis‐a`‐vis human society as he experienced the latter to be more brutal than the former. However, the court significantly did not expressly mention the contours of the test itself, which makes it difficult to apply. The “constitutes the story being told” test, developed by courts in the Ninth Circuit in the case of Warner Bros. Pictures v. Columbia Broadcasting Sys[2], extends protection to fictional characters independent of the original work if they constitute the story being told and are not mere chessmen/women or vehicles driving the game of telling the story[3]. That is, if a story is more dependent on its plot and atmosphere and the characters in it largely represent an attitude or feeling towards society in general, then such characters will not be safeguarded under copyright law (Schwabach, 2011, p. 30). Professor Schwabach is of the view that the generation of this test may have been primarily influenced by the urge to protect the author of the original work through moral rights, which usually plays a minimal role in the US copyright regime. Second, the “constitutes the story being told” test is much harder to satisfy, and thus, gives narrower protection to fictional characters, especially secondary characters like Professor Snape of the Harry Potter series, however, well delineated they may be, than the former. The book examines a plethora of decisions where both these tests have been applied to note that both tests are now being subjected to more restrictive interpretations and that in spite of that the former has received a wider acceptance that the latter. In conclusion, however, the “sufficiently delineated” test and the “constitutes the story being told” tests are not very useful in clarifying whether the fictional characters are safeguarded by copyright independent of the original works and the scope of such protection.

Chapter 3 deals with the other pertinent copyright issue, namely, if the underlying work or the characters in it, as incorporated in the fan fiction are protected, whether fan works violate copyright in them? In other words, even if such fan works are derivative in nature, whereby they seem to infringe the author of/rights‐holder exclusive right in the original work to create derivative works under Section 101 US Copyright Act 1976, can such fan works be protected because they are sufficiently transformative in nature or under the concept of fair use? Professor Schwabach tries to answer these questions by revisiting the current legal understanding of fair use and derivative works through various fan works.

The most interesting example regarding fair use is that of a fan video called “They’re Taking the Hobbits to Isengard!”, which uses content from a single source, the first two motion pictures in the Lord of the Rings series. The fan video has been described to be a comical remix of the scenes and dialogues, and soundtracks from these motion pictures. One of the soundtracks used is called “Shire”, which as written for the motion pictures, was based on hymn that was later set to a traditional English melody meant for Sunday school in 1915. This hymn evoked a sense of nostalgia and innocence about England, which is in contrast to how it was used in Lord of the Rings series. Keeping these facts in mind, the question to resolve is whether the author of the fan video has infringed the exclusive rights of the authors of/right‐holders in the original musical composition on which “Shire” is based, as well as “Shire” itself? The answer to the former query is in the negative as the original musical composition on which “Shire” has been based has long been out of copyright. However, for the latter, Professor Schwabach argues that as long as the author of the fan video can show that his use is non‐commercial in nature such use could be categorized as fair use under Section 107 US Copyright Act 1976. However, how will the issue be decided if the author of the “They’re Taking the Hobbits to Isengard!” wants to release an extended remix CD‐Single of the aforementioned video? This chapter recalls the ambiguity of the fair use test under Section 107; applies it to the issue at hand to conclude that the first factor, purpose and character of the use does not seem to weigh on either side; the second factor, the nature of the copyrighted work weighs against a finding of fair use; the third factor, the amount and substantiality of the portion used weighs in favour of the fan video author; and the last factor, the market effect, also favours the author of the fan video. Thus, overall, the decision should be that of fair use, favouring the fan video author. Nonetheless, this is not a certainty as the four factors are not exhaustive in nature; and the US Congress has given no clear guidance on the hierarchy between them, how are they to be weighed or applied. Such uncertainty may, thus, have a chilling effect on fan works.

With regard to fan works’ potential infringement of the exclusive right to create derivative works, Chapter 3 notes that derivative works as defined in Section 101, inter‐alia, consists of “a work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship”. This aspect of the definition is potentially problematic for fan works as even though in most cases they may be original works protectable under Section 102 US Copyright Act 1976, they often incorporate characters, settings and other story elements from underlying copyrighted works to such a degree that they may infringe the exclusive right to prepare derivative works. Investigation of various fan works reveal that the higher the degree of creativity in a fan work, the more likely the work is transformative, and thus, less likely to infringe the exclusive copyright right to create derivative works.

Next, Chapter 4 highlights and elaborates on three specific interests of authors of the original work that conflict with those of authors of fan works. They include the potential infringement of the moral rights of authors of the original work by authors of fan works; the possibility of authors of the original works infringing their own future works if the fan works anticipate such future works; and potential infringement of the economic rights of reproduction and creation of derivative works by authors of fan works. The last issue seems to be a continuation of the discussion in the preceding chapter, and hence, will not be repeated here. However, it is worth noting that this issue has been analysed through the case of Harry Potter and its various adaptations worldwide, including the Harry Potter Lexicon, which as per Professor Schwabach comes closet to clarifying the position on copyright in characters, derivative works and their transformative use as fair use.

Drawing upon the discussion in the previous chapter, the last chapter, critiques the relationship between the author or/right‐holders in original works and authors of fan works. Professor Schwabach perceives the relationship to be one sided where the law “views the publication of works of fiction […] not as a discourse but as monologue: the author delivers the content, and the audience passively receives it, with no part in shaping it” (Schwabach, 2011, p. 139). With the rapid growth of communication over the internet, the roles of authors of original works and authors of fan works are increasingly getting blurred and interchanged. In such a scenario, the book impresses not on the need for copyright reforms as in many cases fan works are protected by the law, but instead suggests practical solutions like licensing of original works for creation of fan works in consideration of the steady expansion of the copyright regime in the USA and the failure of its music and motion picture industries to enforce copyright in an on‐line world.

Fan Fiction and Copyright is, thus, an interesting read for anyone who enjoys fiction and is curious to know about copyright issues regarding works that are based on or inspired by original works of fiction. The book represents an unique contribution as it brings into focus the genre of fan works which till late has not often been the centrepiece of discussion in the copyright world. It is compact, is lucidly written and well structured. It explains the law as simply as possible and with numerous examples to make it accessible to the legal and non‐legal public alike. Moreover, it contains detailed referencing that is immensely useful for anyone who wishes to undertake a more exhaustive study of the subject. It ends the discussion with the hope of harmonious coexistence of authors or/right‐holders in original works and authors of fan works in this emerging, technology driven, interactive world of creation and dissemination of cultural works.

Seen in the broader context, this book essentially debates the problems the existing copyright regimes face regarding user uploaded content in the digital world. Worldwide solutions are being deviced at the legal, regulatory and business levels. In this light, one possible criticism of the book is that Professor Schwabach does not indulge in debating these options in depth. In the last chapter, the book briefly suggests the way forward in the creation of ingenious business models like YouTube's AudioSwap. It would be more interesting if there was another chapter to elaborate and debate the success of, for example, emerging mechanisms used to monetize and revenue share such user generated content, like voluntary donations, charging users of fan fiction content under pay‐per‐item and subscription models like digital media exchange, advertising‐based models used by platforms like Fanfiction.Net and business models regarding online sales of goods/services to the large captive audience of the original work and related fan fiction (OECD, 2007, pp. 47‐51). Another interesting element could be adding more flesh to the legal issue of licensing, by explaining the complexities involved in it, giving rise to innovative licensing practices or new technologies that facilitate licensing like the conceptually revolutionary creative commons initiative, creation of clearing houses/centres for the attribution of rights to the authors or/right‐holders in original works and authors of fan fiction (OECD, 2007, p. 82). Moreover, the examination of the role of the internet service providers in curbing potential copyright infringement, as discussed in Chapter 1, can be further exploited by briefly introducing the highly contentious topic of digital rights management (DRM), expanding on the problems associated with it, and how backlash against coercive types of DRM has given rise to newer strategies that are being deployed by several media entities to reward the creativity of authors or/right‐holders in original works through royalties and sharing in advertising revenues, while entering into similar arrangements with the authors and users of user uploaded content (Miles, 2007). Lastly, the book could substantially add to the discussion if it were to investigate the socio‐cultural and economic impact of the aforementioned suggestions on the relevant interest groups, with particular focus on socio‐cultural issues like increased user autonomy, participation and communication of user uploaded content leading to diversity of content, encouraging freedom of expression; cultural fragmentation; and matters of inclusion (OECD, 2007, pp. 63‐69).

Notes

519 F.Supp. 388, 391 (S.D.N.Y. 1981).

216 F.2d 945, 948 (9th Cir. 1954).

216 F.2d 945, 948 (9th Cir. 1954) at 950.