Not a bad evening's work
I just wrote this paper for Intellectual Property class. Due Wednesday, but I've got drill this weekend so I needed to get stuff done in advance:
This paper deals with fanfiction and some of the legal issues surrounding it. The questions surrounding the subject are generally if fanfiction is a derivative work, if it is a transformative work, and if it provides any benefit to society. Some authors and creators of television shows are tolerant of fanfiction while others are notoriously litigious. A few legal writers such as Rebecca Tushnet and Christina Ranon have argued for a legal exemption for fanfiction because of this. The main question which Ranon and Tushnet ask are, is fanfiction derivative or transformative? Also, could an exemption be made for it under fair use?
Fanfiction , commonly abbreviated to “fanfic”, “is a broadly-defined term for fiction about characters or settings written by fans of the original work, rather than by the original creators. Fan fiction usually describes works that are uncommissioned and unauthorized by the owner/creators and publishers of the original and usually (but not always) works which are not professionally published.” It is believed to have started as a reflection of popular culture in the late 60s with the show “Star Trek” and has now expanded into fan-written stories about novels (the Harry Potter series in particular), Japanese animation (“Gundam Wing” is perhaps the largest category) and video games (many about either the “Final Fantasy” or “Kingdom Hearts” series).
One of the rights of a copyright holder is to produce derivative works. A derivative work is defined as “a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted.” Given that a fanfiction uses “characters or settings” from another source, there seems to be no doubt that fanfiction is derivative.
However, is it transformative? If it is, the Supreme Court ruled in Campbell v. Acuff-Rose Music, Inc. 510 U.S. 569 (1994) that there is considerable leeway. Campbell dealt with the rap music group 2 Live Crew that parodied the Roy Orbison song “Oh Pretty Woman”. The Supreme Court decided, “(W)hen, on the contrary, the second use is transformative, market substitution is at least less certain, and market harm may not be so readily inferred.” Parody is seen as a transformative use, which is self-referential, saying something about the work and adding aspects that are new.
Since the Supreme Court found that parody fell under fair use, Tushnet and Ranon extrapolate that fanfiction could possibly fall under fair use as well. The definition of fair use contains several factors that would seem to apply. One of them is whether the work is of a commercial nature and another is the effect of the use upon the potential market for the copyrighted work.
Fanfiction is by its very definition not written for profit. Not only does it have uncertain market substitution, it avoids the market altogether. Tushnet and Ranon acknowledge however that not taking money for fanfiction is not a defense. “Fan authors evoke a general social consensus that noncommercial use is fair use,” Tushnet writes in her article “Legal Fictions: Copyright, Fan Fiction, and a New Common Law”, referring to the disclaimers usually found at the beginning of fan-written stories. Ranon clarifies, “Authors of fan fiction neither sell their works nor attribute those works to the canon authors. In addition, it is customary in fandom to add a disclaimer before all works of fan fiction, and courts have held that such disclaimers are adequate to distance the owner of the trademark from the user of the trademark,” Journalist Natasha Walker, writing in the Guardian, calls fanfiction “homage to their favourite tales” and states that “no money changes hands and so nobody feels cheated.”
Ranon, Tushnet, and Walker view fanfiction as “something like an oral society”. “Fan fiction is a way of the culture repairing the damage done in a system where corporations, rather than the folk own contemporary myths,” writes Ranon. “As legends and folktales of Coyote the Trickster or Paul Bunyan previously brought audiences together, modern secondary creativity allows fans to transcend passive reception, using material to which they have easy access,” adds Tushnet.
Reactions by holders of copyrights have been varied. http://www.fanfiction.net carries large disclaimers when an author goes to post a story saying that stories based on novels by Laurel K. Hamilton and Anne McCaffrey will be removed. On the other hand, Harry Potter creator J.K. Rowland is positive towards fanfiction and has commented, “I love that I have made a world that kids want to inhabit,”
Fanfiction occupies a grey area in copyright law. On one hand, it is done as a homage and a labor of love alone with no possibility of financial profit. It is unlikely that it can ever compete with the owner of the copyright for market share, and in fact can be seen as free publicity, advertisement for the products on which it is based. On the other, anyone who has spent an afternoon perusing fanfiction.net knows that much of it is horribly written and an embarrassing testament to the original work. Some of it is sexually explicit, which Rowling has said she finds upsetting. It is possible that the correct place for fanfiction is in the grey area, allowed until a creator asks that his or her work be respected. Literary works are particularly personal, and it seems that if a fan claims to love the original so much, the best homage would be to respect the wishes of its creator.
BIBLIOGRAPHY
Campbell v. Acuff-Rose Music, Inc. 510 U.S. 569(1994)
Christina Z. Ranon, J.D. Candidate, Honor Among Thieves: Copyright Infringement in Internet Fandom, Vand. J. Entern. Tech. Law. Vol. 8:2:421.421-452 (2006).
Rebecca Tushnet, J.D. Candidate, Legal Fictions: Copyright, Fan Fiction, and a New Common Law, Loy. L.A. Ent. L.J. 17,3 651-686 (1997).
Natasha Walker, Works In Progress, The Guardian, online edition, Oct. 27, 2004.
17 U.S.C. §§ 101, 106, 107(2).
This paper deals with fanfiction and some of the legal issues surrounding it. The questions surrounding the subject are generally if fanfiction is a derivative work, if it is a transformative work, and if it provides any benefit to society. Some authors and creators of television shows are tolerant of fanfiction while others are notoriously litigious. A few legal writers such as Rebecca Tushnet and Christina Ranon have argued for a legal exemption for fanfiction because of this. The main question which Ranon and Tushnet ask are, is fanfiction derivative or transformative? Also, could an exemption be made for it under fair use?
Fanfiction , commonly abbreviated to “fanfic”, “is a broadly-defined term for fiction about characters or settings written by fans of the original work, rather than by the original creators. Fan fiction usually describes works that are uncommissioned and unauthorized by the owner/creators and publishers of the original and usually (but not always) works which are not professionally published.” It is believed to have started as a reflection of popular culture in the late 60s with the show “Star Trek” and has now expanded into fan-written stories about novels (the Harry Potter series in particular), Japanese animation (“Gundam Wing” is perhaps the largest category) and video games (many about either the “Final Fantasy” or “Kingdom Hearts” series).
One of the rights of a copyright holder is to produce derivative works. A derivative work is defined as “a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted.” Given that a fanfiction uses “characters or settings” from another source, there seems to be no doubt that fanfiction is derivative.
However, is it transformative? If it is, the Supreme Court ruled in Campbell v. Acuff-Rose Music, Inc. 510 U.S. 569 (1994) that there is considerable leeway. Campbell dealt with the rap music group 2 Live Crew that parodied the Roy Orbison song “Oh Pretty Woman”. The Supreme Court decided, “(W)hen, on the contrary, the second use is transformative, market substitution is at least less certain, and market harm may not be so readily inferred.” Parody is seen as a transformative use, which is self-referential, saying something about the work and adding aspects that are new.
Since the Supreme Court found that parody fell under fair use, Tushnet and Ranon extrapolate that fanfiction could possibly fall under fair use as well. The definition of fair use contains several factors that would seem to apply. One of them is whether the work is of a commercial nature and another is the effect of the use upon the potential market for the copyrighted work.
Fanfiction is by its very definition not written for profit. Not only does it have uncertain market substitution, it avoids the market altogether. Tushnet and Ranon acknowledge however that not taking money for fanfiction is not a defense. “Fan authors evoke a general social consensus that noncommercial use is fair use,” Tushnet writes in her article “Legal Fictions: Copyright, Fan Fiction, and a New Common Law”, referring to the disclaimers usually found at the beginning of fan-written stories. Ranon clarifies, “Authors of fan fiction neither sell their works nor attribute those works to the canon authors. In addition, it is customary in fandom to add a disclaimer before all works of fan fiction, and courts have held that such disclaimers are adequate to distance the owner of the trademark from the user of the trademark,” Journalist Natasha Walker, writing in the Guardian, calls fanfiction “homage to their favourite tales” and states that “no money changes hands and so nobody feels cheated.”
Ranon, Tushnet, and Walker view fanfiction as “something like an oral society”. “Fan fiction is a way of the culture repairing the damage done in a system where corporations, rather than the folk own contemporary myths,” writes Ranon. “As legends and folktales of Coyote the Trickster or Paul Bunyan previously brought audiences together, modern secondary creativity allows fans to transcend passive reception, using material to which they have easy access,” adds Tushnet.
Reactions by holders of copyrights have been varied. http://www.fanfiction.net carries large disclaimers when an author goes to post a story saying that stories based on novels by Laurel K. Hamilton and Anne McCaffrey will be removed. On the other hand, Harry Potter creator J.K. Rowland is positive towards fanfiction and has commented, “I love that I have made a world that kids want to inhabit,”
Fanfiction occupies a grey area in copyright law. On one hand, it is done as a homage and a labor of love alone with no possibility of financial profit. It is unlikely that it can ever compete with the owner of the copyright for market share, and in fact can be seen as free publicity, advertisement for the products on which it is based. On the other, anyone who has spent an afternoon perusing fanfiction.net knows that much of it is horribly written and an embarrassing testament to the original work. Some of it is sexually explicit, which Rowling has said she finds upsetting. It is possible that the correct place for fanfiction is in the grey area, allowed until a creator asks that his or her work be respected. Literary works are particularly personal, and it seems that if a fan claims to love the original so much, the best homage would be to respect the wishes of its creator.
BIBLIOGRAPHY
Campbell v. Acuff-Rose Music, Inc. 510 U.S. 569(1994)
Christina Z. Ranon, J.D. Candidate, Honor Among Thieves: Copyright Infringement in Internet Fandom, Vand. J. Entern. Tech. Law. Vol. 8:2:421.421-452 (2006).
Rebecca Tushnet, J.D. Candidate, Legal Fictions: Copyright, Fan Fiction, and a New Common Law, Loy. L.A. Ent. L.J. 17,3 651-686 (1997).
Natasha Walker, Works In Progress, The Guardian, online edition, Oct. 27, 2004.
17 U.S.C. §§ 101, 106, 107(2).