Rewriting TV: Fanfiction as Fair Use – Part IV

1 See Section II, supra.

2 Schultz, supra note 25.

3 Id.

4 Meredith McCardle, Fan Fiction, Fandom, and Fanfare: What’s All the Fuss?, 9 B. U. J. Sci. & Tech. L. 433, 449 (2003).

5 Id. Anne Rice in particular has been vicious in her defense of her property, forbidding any fan fiction and threatening fans with harsh legal action if they do not comply.

6 Lloyd L. Weinreb, Fair’s Fair: A Comment on the Fair Use Doctrine, 103 Harv. L. Rev. 1137, 1159-60 (1990).

7 Post by “Sir Winston” on http://www.slashdot.org (April 16, 2003).

8 Cohen, et. al., supra note 86, at 496.

9 17 U.S.C. §107 (2003).

10 Cohen, et. al, supra note 86, at 496.

11 Woods v. Universal Studios, Inc., 920 F.Supp. 63, 65 (S.D.N.Y. 1996).

12 Cohen, et. al., supra note 86, at 541.

13 464 U.S. at 477-78 (Blackmun, J., dissenting).

14 17 U.S.C. §107 (2003).

15 Sony, 464 U.S. at 449.

16 Harper & Row, Publishers v. Nation Enterprises, 471 U.S. 539, 562 (1985).

17 Coombe, supra note 50, at 126.

18 “Majelb,” Like Everything’s Ok, archived at http://www.thealphagate.com (November 2003).

19 “Marcia,” Aversion Therapy 10, archived at http://www.thealphagate.com (November 2003).

20 “Mor_tu,” The Weight of a Shadow, archived at http://www.thealphagate.com (November 2003).

21 “Teand,” A Reason to Smile, archived at http://www.thealphagate.com (November 2003).

22 “Sideburns,” Marking Time, archived at http://www.thealphagate.com (November 2003).

23 See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).

24 See Section II, supra.

25 Id.

26 John Tulloch and Henry Jenkins, Science Fiction Audiences: Watching Dr. Who and Star Trek 175-76 (1995).

27 Id.

28 Id.

29 Id. at 176.

30 Id. at 202.

31 Id.

32 Id. at 203.

33 Id.

34 Id. at 264 [emphasis added].

35 268 F.3d 1257 (11th Cir. 2001).

36 Id. at 1269.

37 Id. at 1271-72.

38 Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994).

39 Jenkins, “Strangers No More We Sing,” supra note 29, at 212.

40 Id.

41 Schultz, supra note 26.

42 Id.

43 Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 586 (1994).

44 See 1 Paul Goldstein, Copyright § 10.2.2 at 10:53.

45 Rebecca Tushnet, Legal Fictions: Copyright, Fan Fiction, and a New Common Law, 17 Loy. L.A. Ent. L. Rev. 651, 677 (1997).

46 Sony Corporation of America v. Universal Studios, 464 U.S. 417, 450 (1984).

47 Campbell, 510 U.S. at 586.

48 Tushnet, supra note 138 at 678.

49 Sony, 464 U.S. at 427.

50 Campbell, 510 U.S. at 591.

51 Jenkins, Textual Poachers, supra note 14, at 65-55.

52 Campbell, 510 U.S. at 571.

53 Id. at 592.

54 Id.

55 Jenkins, Digital Land Grab, supra note 3.

56 Id.

57 Id.

The majority of this section will consider the possible fair use defense for fan fiction, but

before addressing fair use, it is important to consider another defense fans may have. Fan fiction is a fairly entrenched art form.¹ Most, in fact probably all, media copyright owners have known about it for decades. Many of the people working on the TV shows that fans write about enjoy reading fan fiction. Staffers on Buffy and Angel respect the work fan writers do and are proud that something they have created has inspired such an outpouring of imagination. Many of them regularly read the fan fiction, only steering away from anything that might come close to merging with the show—they do not want to be accused of stealing from the fans.² Co-executive producer Frank Spotnitz named a young, idealistic agent on The X-files after a fan fiction writer who was struggling with melanoma as a tribute to her talent and love of the show.³

This acceptance, even lauding, of fan fiction by some owners may give fan writers an implied consent argument. If owners know about the fan fiction writing and have done nothing to quash it, they may have forfeited their right to attempt to stop fan fiction creation and distribution.⁴ Other owners, however, have expressly forbidden fan fiction.⁵ This negates the implied license when applied to their property, but there probably is still a fair use defense however much the owners dislike it.

Fans believe their actions to be fair use, and this belief may help them if owners ever decide to take the next step and prosecute them for infringement. The Customary Use Theory posits that a use should be found to be fair if it is “within…accepted norms and customary practice.”⁶ The majority of America believes that personal, non-commercial uses that give proper attribution should be fair. It is certain that the fan community believes this:

Yes, legally the characters are the IP of their creators or the studios if their creators either sold the IP or created it while under contract to a studio. However, non-commercial use of intellectual property is protected by fair use doctrine, and fan fiction is all done by amateurs… even a very clueless judge would uphold the right of a private citizen to write a story about a character and distribute it non-commercially.⁷

Whether this is truly the fair use doctrine or not, it is what the public believes the doctrine to be. “In practice, whether a particular use is deemed fair depends not only on the particular circumstances, but also on underlying normative theories.”⁸

While limited, §107 does give some guidance as to where to start an analysis of fair use:

§107. Limitations of exclusive rights: Fair use

Notwithstanding the provisions of section 106, the fair use of a copyrighted work…for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use, the factors to be considered shall include—

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 relations 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.⁹

None of these factors is an absolute indicator of whether a use is fair or not. Courts must balance each factor, looking at the surrounding circumstances and considering the public interest in order to reach a decision. The uses listed (criticism, commentary, education, news reporting, etc.) are those that “further the development of a common culture… [and] promote the progress of learning and the arts. These uses also help to produce a public that is educated and informed…about shared values, interests, and debates.”¹⁰ Fair use implicates the First Amendment and public interest considerations as well.¹¹

In general, “a court is more likely to excuse a use as fair if it is productive, adding something new that enhances the benefit the public derives from the earlier copyrighted work. Second, a court is also more likely to take a favorable view of uses that are reasonable and customary, whether under an implied consent theory or under a more general theory of socially acceptable conduct.”¹² In fact, the question of whether a use is productive repeatedly shows up in court decisions. Justice Blackmun was emphatic in his dissent in Sony that the uses listed in §107, while not exclusive are all productive uses, “resulting in some added benefit to the public beyond that produced by the first author’s work. The fair use doctrine, in other words, permits works to be used for ‘socially laudable purposes.’”¹³ Fan fiction is highly productive, with the fan writers adding their own stories, plots, interpretations and meanings. Fiction which builds upon what came before is the tradition of Western culture, thus making it a reasonable and customary use. This overall view supports a finding of fair use for fan fiction. If such a use is found, then despite copying characters and making derivative works, fan fiction will not be found to be infringing.¹⁴ A balancing of the four factors also leads to this conclusion.

A. The Purpose and Character of the Use

The first consideration under this prong is whether the use in question is commercial or non-commercial. Commercial uses are presumptively unfair.¹⁵ A non-commercial work, on the other hand, is far more likely to be found to be fair. “The crux of the profit/nonprofit distinction is not whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price.”¹⁶ Fan fiction is a non-commercial, non-profit exercise. Fans “respect the legal prohibition against selling their writings, videotapes and artworks for profit.”¹⁷ Indeed the disclaimers fans put before their works emphasize the non-commercial aspect of fan fiction, arguing from the start that they ought not to be prosecuted for their actions: “Stargate SG-1 [sic] and its characters are the property of Showtime/ Viacom, MGM/UA, Double Secret Productions, and Gekko Productions. I do not own the characters and indeed am only playing with them for a little while. I am not making any money from this and I’m still paying for everything I own so there’s very little point in suing me.”¹⁸

The disclaimers themselves often act as criticism of the producers as well, claiming that they are mistreating the characters and the fanfic writers only rescuing them: “We all know Stargate SG-1 [sic] is owned by MGM, Stargate Productions, Gekko Productions, et al, even though they *suck* at it. I’d own them if I’d won the lottery. But I didn’t, so I don’t.”¹⁹ “There’s a real fine line between what’s theirs and what’s ours; and although the characters may belong to them – all the words are ours.”²⁰ “Stargate SG-1 [sic] and the characters therein are not mine. Those who are responsible for them, don’t deserve to be.”²¹ “Owned and poorly operated by MGM, SciFi, Gekko, etc. We really need to pool our quarters, ladies and gents. We do.”²²

The second consideration within this prong is whether the use supplants or transforms the original work. Uses which are highly transformative, adding a lot of new material to that which is taken, changing its nature, are more likely to be found to be fair.²³ Fan fiction is highly transformative.²⁴ While it borrows characters and premises from the original programming, it takes those characters and premises and adds the fan writers’ interpretations, meanings, thoughts and desires to the story. What results is something noticeably different than the original. What was action-adventure is now romance; characters who were straight are now bi-sexual; secondary characters take center stage.²⁵

§107 lists several uses that might be fair—criticism and commentary are two of them. As discussed in Section II, much of fan fiction is criticism and commentary. Fans take the source product and rework it to meet their own needs and desires, thus commenting that the original lacked something.²⁶ As an example, one fan novel, written in 1976, offers a critical look at the world of the Federation in Star Trek. Jacqueline Lichtenberg’s fan novel Federation Centennial rethinks a number of episodes which have sparked ideological and academic criticism by having Kirk face a tribunal that questions his imposition of human morality on alien cultures when violating the Prime Directive.²⁷ “Lichtenberg examines the ideological assumptions governing Star Trek, focusing particularly on the series’ representation of the relationship amongst the many alien races that constitute the Federation.”²⁸ Academics who study the Star Trek phenomenon often focus on the same episodes that Lichtenberg criticizes in her novel, looking to see what real world parallels exist within the supposedly utopian society:

If academic critics step outside the narrative’s fictional framework to focus on larger social determinants or institutional contexts, fan criticism operates within the fictional world, framing interpretations that are consistent with fandom’s prevailing realist aesthetic. Ideological contradictions are understood as conflicts between characters and the alien cultures they represent rather than between opposing discourses within a constructed text.²⁹

But the results and the impetus for the criticism is the same.

Henry Jenkins has argued that, “fan writing is a literature of reform, not revolt.”³⁰ It seeks to change things from within the system. While it is a feminine response to mass media—seeking to impose a feminist reading on a masculine text—it is not a Betty Friedan type of feminism calling for a separation of gender. Instead, fan fiction works to explore the dynamics of relationships between characters as it seeks to find a feminism of inclusion, a feminism of sharing of feelings and lives between men and women—one of negotiating our differences and embracing them and learning from them.³¹ Fan fiction thus implicates the political and social concerns of a community as it is shared between writers and readers.³² Jenkins perhaps makes the most eloquent argument for the public interest fan fiction serves:

The political importance of fan fiction cannot therefore be reduced to the content of the stories alone, but must be understood in terms of the dramatic step towards self-determination that comes when someone decides to share their story with the wider women’s community of fandom…Fandom constitutes a site of feminine strength, rather than weakness, as women confront and master cultural materials and learn to tell their own stories, both privately and collectively, through their poached materials…[There is a] collective and political basis [for] these stories, [they serve a role] not as self-expression, but rather as collective cultural capital within a rich and varied subcultural community.³³

The most controversial form of fan fiction, slash, is even more transformative in its use, turning straight characters into gay characters and questioning the very fabric that makes up gender identity within the source product and the “real” world.

Slash…represents a powerful form of resistant reading, an active appropriation and transformation of dominant media content into forms of cultural production and circulation that speak to the fan community’s needs and interests. Slash has proven empowering to its female fan readers and writers, helping them to articulate and explore their sexual fantasies, bringing them together into a community across various barriers which isolate them. Slash, by translating politics into the personal, gave them a way to speak about their experiences and commitments. Some members of [the gay fan community] have embraced slash as a form which can also express their fantasies about the series and their desires for its future development. One slash zine presented itself as a reaction to the failure of a letter writing campaign: “Our motto is: If Paramount can’t give us that queer episode, just make it so!”³⁴

Such a non-commercial, transformative use of the original property weighs the first prong of the fair use doctrine in favor of the fan writers.

Courts have consistently favored transformative works as fair use. In Suntrust v. Houghton Mifflin Company, the court looked at a novel which parodied Gone with the Wind.³⁵ The Wind Done Gone retold the Margaret Mitchell’s novel from the position of Scarlett’s black half-sister.³⁶ The novel copied a great deal from the original. The original was a fictional work, entitled to strong protection under the copyright laws. The Wind Done Gone was a commercial work. However, the court found that it was highly transformative and not likely to affect the market for potential derivatives (see below).³⁷ While the novel was considered a parody of the original, a work does not have to be a parody to be protected. Indeed, “parody” is not even one of the forms listed in §107, but it has been consistently protected. However, it is the transformative nature of the work that the courts consider most. Court ask whether the new work merely supersedes the original,

or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extend the new work is ‘transformative’…the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works.³⁸

Fan fiction may also claim to be fair use as an educational use. Many writers use fan fiction as a way to learn how to write. “Historically, fan publishing has provided an important training ground for professional writers, a nurturing space in which to develop skills, styles, themes and perhaps most importantly, self-confidence before entering the commercial marketplace.”³⁹ Marion Zimmer Bradley, noted science fiction and fantasy author, started her writing career writing fan fiction.⁴⁰ If a writer would like to write for a television show, it is important to learn to use the existing characters—to write with their voices and to be true to the existing characterizations. It is the fantasy of every fan, of course, to be offered a job writing for television. It is a fantasy that is easy to dismiss, except for one thing—it has happened.

Meredyth Smith discovered Buffy the Vampire Slayer in her basement apartment in New York City. She was instantly hooked and became a member of the online fan club, The Bronze. She started posting on the message board regularly, becoming an active member of the fan community. She avidly wrote Buffy fan fiction, working to perfect her craft. In 1998, she flew to LA for a fan convention. She met someone who got her a job as an assistant to the producer on Strange World. After the show was cancelled, she joined the staff of Angel, a Buffy spin-off, as a script coordinator. A year later, she was a writer on the show.⁴¹ In the span of two years she went from sitting in front of the television watching her favorite show to writing for it. She credits her involvement in the fan community with her success.⁴² Such stories invigorate the fans toiling away at their computers, searching for just the right word, just the right expression to convey what they see in their heads to a greater audience.

1. Nature of the Copyrighted Work

Courts generally give more protection to works of fiction and less to works of fact.⁴³ As fan fiction is generally not likely to be written about facts, it is safe to assume that the works the fiction is based on are highly protected. However, this prong also has been interpreted to have a published/unpublished distinction to it. Unpublished works are given a great deal more protection than published works because it is assumed that the copyright owner has an interest in limiting dissemination.⁴⁴ “This supports giving less protection to a work which has been broadly distributed,” like television shows which are broadcast to the general public.⁴⁵

1. The Amount and Substantiality of Use

This is a difficult analysis where fan fiction is concerned. Use of a copyrighted character constitutes use of the entire material. However, only a few characters have been found to stand outside their works completely—i.e. Superman, Mickey Mouse, etc. Luckily for fan fiction authors, the use of an entire work does not mean that fair use cannot be found.⁴⁶ The Court held that this factor should be considered along with the other three to see if it is “reasonable in relation to the purpose of copying.”⁴⁷ Fan fiction could not fulfill its communal and political purpose without relying upon the common characters and premises that make up the cultural community. Therefore, this borrowing might be legitimate because of the transformative, non-commercial use of fan fiction.⁴⁸

1. The Effect on the Market

The fourth and final factor that courts consider when deciding if a use is fair is the infringing work’s effect on both the current and potential markets. This factor is closely tied to the first. There is a presumption against finding market harm when a use is noncommercial.⁴⁹ A second presumption exists against finding harm from transformative uses, because the transformation precludes simple market substitution.⁵⁰ Fan fiction is both of these. It does not cause actual harm to the television show it comments on. In fact, it keeps fans excited about the show from week to week and loyal to the characters.⁵¹ And it is illogical to think that an amateur short story could ever substitute for a television show—they are in two different markets.

However, this factor also considers the effect on potential derivative markets.⁵² It is possible that Star Trek and Buffy and Stargate SG-1 and the other television shows could choose to exploit the derivative market of television show-based fiction. In fact, those listed above, and many others, have already done so. Walk into the science fiction section of the local Barnes and Noble, and you will find an entire section of Star Trek novels and a substantial number of Buffy and Stargate SG-1 novels as well. But fan fiction does not affect this market either.

These novels read very much like the television show. Because of their written form, a reader may get a little more insight into a character’s thoughts, but Star Trek novels are about space adventure and meeting new species and Buffy novels are about fighting some big, bad Evil. While the owners of these franchises may license the writing of fiction based on the show, they most likely would not consider licensing a line of Star Trek romance novels or Stargate SG-1 homosexual erotica. “The market for potential derivative uses includes only those that creators of original works would in general develop or license to others to develop.”⁵³ In addition, copyright owners are not likely to license stories that criticize their version of the universe that the characters reside in. As the Court reminds us in Campbell, “there is no protectible market for criticism.”⁵⁴

Even if owners licensed stories with the same themes and concerns of fan fiction, there would still be little effect on that market. Fan fiction is first and foremost an amateur endeavor. While much of it is good, a great deal of it is really badly written. As per the educational function discussed above, writers often use fan fiction as a way to learn to write. It is fascinating to read, but licensed derivatives would be professionally written and thus hold a different appeal. Besides, such derivative works are marketed to a specific demographic—the fan. While fans are producers, they are also consumers—as evidenced by the success of the licensed novelizations of the television series. There is no reason to assume that just because fan fiction is available a fan would not go out and buy a professionally written story about characters they love.