Legal Issues With Fan Fiction - United States Copyright Law

United States Copyright Law

Significant amounts of copyrightable creative works such as motion pictures, television programs, music, and computer gaming works are produced in the United States. In addition, a significant amount of fan fiction is created in the United States. For these reasons, although every nation's law is different and different laws may apply to different works of fan fiction, U.S. law is often centrally relevant when determining the legality of writing and/or sharing fan fiction.

Under U.S. Copyright law, the legality of a given work of fan fiction will depend principally on three legal doctrines: (1) copyrightability of the underlying source work; (2) the derivative work right; and (3) fair use.

To have copyright protection under U.S. law, a work must be an "original of authorship fixed in any tangible medium of expression . . . from which can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Such works of authorship include but are not limited to literature, music, plays, pictures and architectural works. Copyright can not be applied to ideas, concepts, facts or other broad principles regardless of whether they are expressed in a tangible medium or otherwise. Copyright goes into effect automatically, even if a work is not published. For works created in 1978 or later, copyright protection persists for the life of the author plus 70 years; in the case of an anonymous work, a pseudonymous work, or a work made for hire, the copyright endures for a term of 95 years from publication, or for 120 years from the year of its creation, whichever expires first.

According to current United States copyright, copyright owners have the exclusive right "to prepare derivative works based upon copyrighted work." A derivative work is any work, including fanfiction based upon one or more preexisting works. In the case where a copyright owner chooses to exercise his/her exclusive right to prepare derivative works against a work of fanfiction, s/he can sue the fanfiction writer for copyright infringement. To prove infringement, an owner must present evidence establishing that the accused has copied protected elements of the original work and the accused work does not constitute fair use. The possible remedies available if infringement can be proven include an order to cease sharing and/or to destroy the work (known as an injunction), or monetary damages. The remedy is dependent on the harm done to the copyright owner, the intent of the infringing person, and the grievousness of the infringement. An example of injunction as remedy was seen in the case of Anderson v. Stallone. There, Sylvester Stallone successfully pursued an action for copyright infringement against Anderson, an author who wrote a proposed script for Rocky IV, by proving that the copyright-protected characters used in the previous Rocky movies were central to the new script. The court enjoined Anderson from pursuing the creation of a movie or other published work based on his script.

Fanfiction is not infringing if it constitutes fair use of the underlying copyrighted work. In determining whether a particular use constitutes fair use, courts consider the following four factors:

1. "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.”

Fair use is assessed on a case-by-case basis. While such genres as parody and criticism are enumerated by statute and case law as presumptively fair uses of a copyrighted work, fan fiction has not historically been recognized by U.S. courts as necessarily constituting these or other enumerated fair use genres, and thus neither falls categorically inside nor categorically outside the presumptive boundaries of fair use. Works of fanfiction are more likely to constitute fair use if they are “transformative” with respect to the original work, if they are non-commercial, if they appropriate relatively little of the original work, and/or if they do not tend to detract from the potential market for or value of the original work.

In a recent case, United States District Court judge Deborah A. Batts permanently prohibited publication in the United States of a book by a Swedish writer whose protagonist is a 76-year-old version of Holden Caulfield of J.D. Salinger's The Catcher in the Rye. Judge Batts explicitly rejected arguments of parody and criticism, stating,

To the extent Defendants contend that 60 Years and the character of Mr. C direct parodic comment or criticism at Catcher or Holden Caulfield, as opposed to Salinger himself, the Court finds such contentions to be post-hoc rationalizations employed through vague generalizations about the alleged naivety of the original, rather than reasonably perceivable parody.

Although this ruling may ultimately hold, the case has since been vacated and remanded by the U.S. Court of Appeals for the Second Circuit with orders to apply the eBay v. MercExchange test in determining whether publication of a work can be prohibited on a theory of intellectual property infringement before the case has gone to trial. The case has not yet been heard on remand.

In contrast, in Suntrust v. Houghton Mifflin Co.,the United States Court of Appeals for the Eleventh Circuit vacated a temporary restraining order and preliminary injunction sought by the copyright holders of Margaret Mitchell's Gone With the Wind against Alice Randall's The Wind Done Gone. In determining whether Randall's work rose to the level of transformative, Circuit Judge Birch used the guidelines for transformative works laid out in the Supreme Court's Campbell v. Acuff Rose Music. Birch found Randall's work to be transformative because it " social benefit, by shedding light on an earlier work, and, in the process, creating a new one." Campbell had already established that the greater the transformative value a work held, the less important the other factors in the fair use test became. Despite Randall and Houghton Mifflin having released The Wind Done Gone as a commercial work, and Randall having used a substantial portion of Mitchell's work in her own, Birch found that the highly transformative nature of Randall's book overcame the other prongs of the fair use test.