Fan Fiction and Copyright: Outsider Works and Intellectual Property Protection

December 1, 2011

Fan fiction is simply fiction created by fans of other works, who borrow characters or fictional worlds from these works and create short stories, books or (increasingly) audiovisual content using those characters as a starting point. This development has been rightly touted as the democratisation of literary production, since virtually all literature of the past was created by a small subset of the public, who, if they were successful, developed a fanbase - or consumers - of their work. Fan fiction reverses this traditional flow of creative content so that fans are no longer merely consumers, but creators as well.

The result has been an outpouring of works from a diversity of new and distinctive voices, as creators with non-commercial or niche messages find audiences online. Best known of the genre's forms is "slash", a tradition in which characters such as Star Trek's Kirk and Spock, or Harry Potter and Hermione Granger, are fictitiously developed in worlds where they are lovers, vampires or what have you. Indeed, their fictional lives can be as wild as the imaginations of the amateur authors.

A generation ago, fan-fiction writers shared their works by sending photocopies to one another; accordingly, most such groups were small and isolated from each other and from mainstream commercial culture. But the internet has allowed fan fiction to flourish by facilitating both the sharing of work and its creation. There are now thousands of websites showcasing fan fiction based on commercial works such as the Twilight films and books. Unsurprisingly, the genre has drawn the interest of scholars in disciplines ranging from media studies to feminist studies.

Copyright issues are at the core of fan fiction because using the characters and fictional worlds of commercial authors to create fan works is arguably a violation of the law from the outset. Thus, whatever one might say about it from other disciplinary perspectives, it is highly relevant whether fan-fiction activities are legal or illegal. While they may be well intentioned, when authors untrained in the law attempt to make statements of legal moment, they are inclined to get things horribly wrong.

Here, Aaron Schwabach, a professor of law, considers the relevant copyright issues for an intended readership not of experts but of an educated public. He confronts the daunting task faced by all specialists seeking to address a wider audience, which is to present the material in a less technical manner than is standard in the profession so as to communicate to non-specialists, while still having something to say to scholarly peers. For the most part, he succeeds admirably. For the copyright specialist, the book has great value as an in-depth study of the phenomenon, much of which is not contained in the case law - the usual grist of law scholars.

While scholars such as Rebecca Tushnet have mapped out the basic landscape, this work has mainly appeared in law reviews and hence in a venue and form relatively inaccessible to a more popular audience. An exception is Lawrence Lessig's Remix: Making Art and Commerce Thrive in the Hybrid Economy (2008), which covers similar ground. This book compares favourably with Remix in that Schwabach assembles, in one place for the first time, key disputes both in case law and (more importantly, because less accessible) in non-litigated disputes. He also does a good job of offering non-specialist-friendly explanations of legal doctrines such as "derivative works", "transformative use", "fair use" and the role of parody. This is a valuable service, as the online growth of fan fiction means that more and more non-lawyers will need to get to grips with its legal status.

The book's strength is its fairly careful discussion of important cases and controversies in a field where there is relatively little case law. It offers, for instance, a lengthy discussion of the litigation between Steven Vander Ark and Harry Potter author J.K. Rowling and the film company Warner over The Harry Potter Lexicon, a collection of Potter trivia that Vander Ark sought to publish in book form. Here, inevitably, Schwabach must trade some legal precision for comprehensibility. The sad truth is that the issue as to whether or not a particular piece of fan fiction is likely to be an infringement or not, and thus illegal or not, cannot be reduced to a formula that will produce a concrete result agreed to by all copyright lawyers, much less non-lawyer literary types. In determining legality, all fan works must be put to the test of fair use, which is notoriously difficult and unpredictable.

Schwabach also considers the unsettled issue of the copyrightability of works and characters via case law involving such characters as Sam Spade and James Bond, and explains how it is likely to apply to fan fiction. This is useful for practitioners or those who would like to offer policy prescriptions, but wish to have a better sense of the legality of the alternatives before they do so. After fleshing out the circumstances and conditions pertaining to copyrightability, he then asks: if characters are copyrightable, do fan works and characters infringe upon these protections?

This discussion is the heart of the book for the general reader whose concern is whether she is likely to be legally liable for her behaviour, or conversely, from the owner's perspective, whether the use of her works by fans is likely to constitute infringement. While Schwabach does not provide a detailed fair-use analysis, what matters for most readers is that the conclusion is correct: much fan fiction is legal. This fact may well be highly determinative of choices made by various actors. He also dispels some myths, such as the claim that non-commercial uses are thereby fair uses. On the whole, this book is of great value to the general reader and contains enough for the more specialised reader as well.

Fan Fiction and Copyright: Outsider Works and Intellectual Property Protection

By Aaron Schwabach. Ashgate, 184pp, £55.00. ISBN 9780754679035. Published 5 July 2011

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Reader's comments (1)

May I ask who wrote this article?