Advocacy Regarding The Legality of Fan Fiction
In 2007 two UC Davis Law School professors argued in the California Law Review that "Mary Sue" fan fiction "that challenge the orthodoxy of the original likely constitute fair use". Citing Campbell v. Acuff-Rose Music, Inc.—which established that commercial parody can qualify as fair use if it can be perceived as commenting or criticizing on the original—and the subsequent Suntrust v. Houghton Mifflin, the authors wrote that "Similarly, many Mary Sues comment on or criticize the original, while at the same time create something new ... Mary Sues can be commercial and still be fair."
That year, a group of fans who engage in creating fan works and are part of the larger fan community founded the Organization for Transformative Works (OTW). OTW has since advocated the legitimacy of fan fiction due its transformative nature. OTW's position is that fan fiction and other fan labor products constitute copyright fair use under 17 U.S.C. § 107 because they add "new meaning and messages to the original" work, and thus fall under the exemption to U.S. copyright law the Supreme Court defined in Campbell and which was later revisited and followed in Suntrust. OTW's vision includes seeing "all fannish works recognized as legal and transformative and ... accepted as a legitimate creative activity." Toward this end OTW works to educate fan writers and published writers about copyright laws, particularly the open legal questions around fan fiction and other fan works.
OTW also maintains its own fan fiction archive, the Archive of Our Own, commonly called AO3. All fan fiction on the site is recognized as non-profit derivative works. While OTW provides a centralized netspace for fans to acquire knowledge and aid regarding their own creative works, and a voice for the fan community, it does not represent all fans. Fans have many different views on the legalities of fan works, from the pure question of whether these works are transformative, to differences in how fans feel fan works should be disseminated.
Fan writers who argue that their work is legal through the fair use doctrine use specific fair use arguments in the context of fan works, such as:
- Fan works do not deprive the owner of the source material of income
- Fan works may work as free advertisement and promotion of the original source material
- Fan works are usually non-profit.
- Fan works do not copy, or attempt to substitute for, the original work.
OTW is also not the only organization to support the idea that fan works are transformative. In Salinger v. Colting, the New York Times and other major media conglomerates filed an amicus brief supporting Colting's book, as did the Library Copyright Alliance.
Read more about this topic: Legal Issues With Fan Fiction
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