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Fan Fiction: The New Frontier

Fan Fiction: the creation of new works based on previously published works to which the secondary creator has no rights. Often a continuation of the original plot line, explorations of what the original might have looked like if elements within it were changed, or the placement of characters or concepts from the original work into new settings with new plot elements. Specifically: What fans do when they cannot let go of an artistic work upon its completion (ex. The Harry Potter fan base) or when they cannot wait for the sequel (ex. The Game of Thrones fan base).

All joking aside, fan fiction, or fanfiction as it is often called, is (as the name suggests) a work of fiction that is created by fans. Fans of what? Fans of the original book, movie, TV show, play/musical, etc. As indicated above, the main goal of fan fiction is to expand upon the original material in (hopefully) new, innovative, and exciting ways. Fan fiction mediums include fan-created pictures, graphic novels/comics, literary works, TV shows, and movies. These mediums often do not mirror the medium of the original work being expounded upon. Here are some concrete examples from popular fan fiction subjects/genres.

After the seventh Harry Potter book came out and the series was completed, many fans were disappointed with the ending of the book (some said the final battle was anti-climactic) or they were just sad that the series was over (this was, of course, before J.K. Rowling had announced her intentions to write a sequel series featuring the Potter children). In an attempt to keep alive the rabid love of the fandom, many fans chose to write fan fiction pieces on a popular website called Fanfiction.net. One such example is this story from a fan who thought Harry should have ended up with Hermione, rather than Ginny (a not uncommon opinion).

Game of Thrones fans are treated to a feast of the senses by the detailed descriptions in George R. R. Martin’s books and by the spectacular combinations of great actors/actresses, sweeping landscapes, fabulous costume designs, intricate sets, and dynamic music in the HBO Game of Thrones TV series. Unfortunately for the fans, the books Martin writes are epic in their length as well as in their subject matter and accordingly are slow in being written and published. Likewise, the TV series only airs for 10 episodes a season from April to June. The fans are then left without any new content for nine months. The fan fiction for this fandom is as varied as for Harry Potter but some of the most amazing examples of fan contributions come in the form of visual art which can yield the same ‘feast of the senses’ effect as the shows themselves. Take this picture of Daenerys Targaryen (played in the TV show by actress Emilia Clarke) with one of her dragons on a popular fan art site called Deviantart.com.

Finally, the Star Trek fan base has been characterized by a loyalty bordering on cult-ish-ness for decades now. While many fans applauded the 2009 reboot for its stunning visuals, great special effects, fantastic casting and its ability to bring in a new generation of fans, some have been left feeling burned by its deviation from Star Trek’s more simple (if cheesy) roots. This feeling closely mirrors the wariness many Doctor Who fans have felt over the technological updates the series has undergone over the years. The Star Trek fans, wanting something more ‘authentic’, decided to undertake the most complicated type of fan fiction: movies. While generally these films have been low budget with actors bearing no notoriety of their own, they are still real, edited movies which thousands of people have been able to watch over the years and which have even become part of the Star Trek universe within some circles.

The issue with fan fictions is, as you might have guessed, one of copyright, trademark infringement, and tort. As there is much to discuss in the copyright realm, I will leave the trademark and tort queries for another day. Every creator of a fixed, original work gains a copyright in that work as soon as it is created or fixed in a tangible medium of expression for the first time. Copyright protection grants a limited monopoly to the author/creator to reproduce, distribute, perform, and display the work as well as to make derivative works; that is, create new works based on the original work such as translations, adaptations, and transformations. The problem then is one of infringement of one or more of these exclusive rights by fans through fan fictions. Say a fan creates a movie, written work, or image which copies elements from the original, say a retelling of a scene from a book to give the reader of the fan creation context, or a picture of a character using that character’s likeness and the setting as it was described/looked in a book, movie, or TV show.  In so doing, the fan has reproduced part of the original work, and if the work is put online (as is often the case) it has likely been distributed, performed or displayed. Additionally, they have made a derivative work of the original.

So why are there so many fan works out there which are not being targeted by copyright holders? The most obvious reason is that it is just not worth it to most copyright owners to attempt to stop the fans because of the cost of litigation and paying people to track down all the possible infringers. Another reason is that it tends to alienate their fans when they go after the ‘little guy’, as it seems unreasonable and greedy to most consumers. The final reason is a fair use argument. Fair use is an exception to the protections granted to an author under the copyright law. This principle was designed to promote the ultimate goal of copyright: to promote creation. Accordingly, fair use allows non-rights holders to use someone else’s work under certain parameters. This is a judgement call on the part of the potential infringer because fair use is a four-factor balancing test, which is used by the courts and it is often hard to determine the likely outcome of a fair use argument without at least beginning to litigate the issue.

The four factors are: (1) What is the purpose and character of the use? Is it commercial? For nonprofit educational purposes?; (2) What is the nature of the copyrighted work?  Is it fictional or factual?; (3) What is the amount and substantiality of the portion of the copyrighted work used in relation to the copyrighted work as a whole?, and (4) What is the effect of the use on the value of the copyrighted work or on the potential market for the copyrighted work? These four factors are balanced against each other and against the purpose of copyright law: to encourage new creations by protecting authors’ rights to them. Accordingly, no single factor is dispositive. The first question looks at what the ‘infringer’ is trying to use the copyrighted work for. If the ‘infringer’s’ purpose is to make money off the work (commercial) then the first factor is likely to weigh against them. On the other hand, if the use is for educational purposes, then the factor is likely to weigh in the ‘infringer’s’ favor. The second question looks at the nature of the original work.  Works that are more creative tend get greater protection than those, which are more factual or composition-based. The third factor examines what, and how much, of the copyrighted work is used. If the ‘infringer’ takes a large amount of the work, or takes something from the work, which is integral to the original then this factor is likely to weigh against them. Finally, what is the market impact of the new work on the original? This question focuses on whether the ‘infringer’s’ creation will divert sales from the original work to the new work (but has no bearing on whether the new work will simply decrease the sales of the original without bolstering its own such as with critique).

The final inquiry is one of transformative fair use. Transformative fair use uses the same four factor test but places emphasis on the first factor by asking whether the purpose or final product of the use is new or different than the original. Generally, when the courts have found that a use was transformative, the other factors are given a lesser weight and fair use is usually found. Transformative fair use takes two forms. The first is that the final product of the ‘infringer’ is physically or actually different. The second form transformative fair use can take is a transformation or difference of purpose between the original artist and the ‘infringer’.

The three fan fiction examples I chose above are not random. As noted, normally fan fiction is not worth the time, energy, and cost, of pursuing the ‘infringers’. However, there are times when the fan fiction may be of such a quality, or gain such renown as to make it worth the while of the copyright holder to consider legal action. In the first example, the Harry Potter fan fiction, the quality of the writing was quite good. This is worth noting because poorly done fan fiction is unlikely to have enough impact on the copyright holder(s) to attract much attention from them. Applying the fair use factors, a court would likely decide that the purpose and character of the use (to have a non-commercial creative outlet) was neutral. This is because courts favor non-commercial uses for the purposes of fair use but (unless it’s something like a parody) the use of integral characters from a book, movie, etc. is almost never transformative. On the second factor, the nature of the original work, a court will likely find in favor of the copyright holder because the original work was highly creative (as most non-fact-based books are).  The third factor will also go against the fan faction ‘infringer’, as most written fan fictions take either important characters or a large quantity of the background story for their works, thus ‘infringers’ often take both ‘the heart of the work’ and a large quantity of the work even if they do not copy the original text verbatim. Finally, the Harry Potter archive is the largest book-based fandom on fanfiction.net at 745,000 written contributions! If fans wanted to, they could forgo the original books altogether, or at least until they were much less expensive, which would have a negative market effect on the Harry Potter books.  In short the court would likely side with J.K. Rowling.  It is worth noting that while actual damages (real loss suffered) would be hard to prove for Rowling, successful claims for the willful infringement of a registered copyright can yield awards up to $150,000 in statutory damages.

The second example, the Game of Thrones artwork, is a great example for infringement of a copyright using images. The Game of Thrones franchise is very popular and sells a large quantity of merchandise to accompany the books and TV show. Fan art of the quality found in the example image may be enough to attract a copyright holder’s attention. Applying the factors: The character and purpose is once again a non-commercial creative outlet.  The nature of the original work was highly creative and thus gets stricter protection. The picture takes both the background/setting and the characters, and thus a significant portion of the original is used. The picture is also available for free download off the website and is good enough to take the place of saleable merchandise that the franchise might want to sell. Lastly, as the picture is intended to serve the same purpose as the original, art/collectable images, it is not transformative. Accordingly, a court could easily find that this was an infringement of the copyright holder’s monopoly on derivative works.

The third example, the Star Trek films, is far less common than fan writing or fan art. Interestingly, very recently a new Star Trek fan film gained a lot of attention in the news because the original Star Trek copyright owner, Paramount and CBS, did choose to pursue legal action against the film’s creators.  Star Trek: Axanar was introduced to fans as a full-length fan movie with real special effects, real actors, and a real budget.  How?  Through crowdfunding. The tiny film company, Axanar Productions, employed a crowdfunding campaign, which succeeded in raising over a million dollars for use in filming, promoting, and paying staff/actors. Combined, the quality of the film, the real Hollywood actors, and the large budget attracted the attention of Paramount. which brought suit for copyright infringement. Applying the factors:  the film is a non-commercial creative outlet, the original works was highly creative, the amount used was likely substantial, and (given the number of the authorized Star Trek films, TV episodes, etc.) it was probably not likely to have a large market impact on the legitimate Star Trek franchise. Axanar is probably not capable of being transformative for the same reasons that the Harry Potter fan writings and the Game of Thrones images aren’t.

In the end, we will never know how the court might have ruled on the Axanar fair use arguments because Paramount and CBS ultimately dropped its case. Interestingly enough, this was because of one of the other reasons for not pursuing legal actions: the fan’s good will. After Paramount and CBS brought suit over the fan film, the Star Trek community (and others) were outraged at what they perceived was the ‘big moguls’ trying to push around the ‘little guy’ in an attempt to make more money for themselves. Even Justin Lin (director for the new Star Trek Beyond) was displeased at the approach the two major studios took. He went so far as to advocate to the studios that a lawsuit was not the right way to handle this issue with the fans. A few weeks later, the studios announced they would be dropping the lawsuit.

The moral of the story? Creating fan fiction will probably not get you much notice by the copyright holders who usually put up with fan creations in order to avoid bad press with the fans and expensive litigation. And of course there is always that pesky fair use issue hanging in the background, which makes litigation more uncertain than the copyright holders would like. A couple rules of thumb to avoid legal ramifications are: one, make sure that the final product is noncommercial, and two, make sure that the final fan product will not have a large, negative market impact on the original work. Fair use is a complicated legal inquiry, which often can only really be understood and handled by a competent attorney. If you have questions about your own fan fiction and what legal impacts you might need to worry about, talk to a lawyer.

CoonrodJessicaBlogby Jessica Coonrod