Gavin Howe
Fan-made works are a double-edged sword for the original creators of a book or series. On the one hand, they can help keep the hype going strong and maintain relevance. On the other hand, fan-made works can violate copyright laws if they are reproduced or sold without permission, which is considered a clear violation. Fan creators usually cite the fair use doctrine when defending their use of copyrighted characters and materials, but this argument is not always successful in court. The line between fair use and copyright infringement is blurry, and what constitutes transformative work is often debated. Ultimately, it is up to the original creator or their estate to decide whether to take legal action against fan-made works, and this decision can have a chilling effect on the entire fan creator community.
| Characteristics | Values |
|---|---|
| Fan-made works legality | Fan-made works live in a legal grey area, with the "fair use" doctrine being used as a defence against copyright violation charges. |
| Copyright infringement | Using copyrighted material without permission is illegal, and creators can sue for infringement. |
| Financial incentives | When money is involved, the original creators have a financial incentive to stop fan creators from profiting off their work. |
| Community impact | Fan-made works can help keep a series relevant and build community, but anti-fans can create negative communities that engage in harmful behaviours. |
| Legislative action | The FANS Act and Fans First Act are examples of legislation aimed at addressing fan frustrations with ticket sales and sports blackouts. |
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What You'll Learn
Fan-made works and copyright laws
Fan-made works are a testament to the passion of their creators and can help a book or series remain relevant. However, they can also be a legal minefield, with creators potentially facing copyright infringement claims. The key issue is whether the fan-made work qualifies as "fair use" or requires permission from the copyright holder.
Fan-made creations that are derived from copyrighted works can raise complex legal issues. Fan creators need to understand intellectual property law to ensure their works do not infringe upon others' copyrights. The purpose and character of the use are important factors in determining whether a fan-made work qualifies as fair use. Generally, the less of the original work that is used and the more it is transformed into something new, the stronger the case for fair use. Fan-made works that are non-commercial and transformative or parodying the original are more likely to be considered fair use.
Obtaining proper copyright clearance is crucial for legally selling or distributing fan-made creations. Creators should research whether their work qualifies as fair use or needs explicit permission from the copyright holder. They should also maintain thorough documentation of any permissions granted or license agreements and understand any limitations, such as non-commercial use only permissions. Consulting a lawyer can help fan creators better understand the boundaries of fair use and ensure their works do not infringe upon others' copyrights.
While fan creators may argue that their work falls under the fair use doctrine, the original creator or their estate can still sue for copyright infringement. The original creators of a work have a financial incentive to stop fan creators from profiting off their intellectual property. Every shirt, drawing, or keychain a fan creator sells is a profit the copyright holder could have made through authentic merchandise. If original creators decide to crack down on people selling fan art, it could have a chilling effect on all fan-made work.
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Fan fiction and the fair use doctrine
Fan fiction is a creative work that uses elements from an existing work, such as characters, settings, or moments, and reimagines them in a new narrative. While fan fiction can be a fun and engaging way for fans to explore their favourite worlds and characters, it can also raise legal concerns, particularly regarding copyright infringement.
In the United States, fan fiction writers often rely on the "fair use" doctrine to defend their use of copyrighted characters and materials. Fair use allows people to use copyrighted works under specific circumstances. These circumstances typically include using the work for educational or non-commercial purposes and ensuring that the work does not include a substantial portion of the original or infringe on its reputation or value.
The "fair use" doctrine is particularly relevant when the fan-made work is "transformative". This means that the new work adds something new or presents the original work with a different character, expression, meaning, or message. The more transformative a work is, the more likely it is to be considered fair use. For example, in the case of *Campbell v. Acuff-Rose Music, Inc.*, the U.S. Supreme Court held that a commercial parody could qualify as fair use if it could be perceived as commenting on or criticising the original work. This case set a precedent for fan fiction, as it recognised that transformative works could fall under the fair use doctrine.
However, it is important to note that the original creator can still sue for copyright infringement, even if the fan-made work falls under the fair use doctrine. Fan fiction writers can only use fair use as a defence against charges of copyright violation. Additionally, if the fan-made work becomes commercial, it may be less likely to be considered fair use, as the original creator may have a financial incentive to protect their work.
While fan fiction writers should be aware of the legal considerations, fan fiction can also have positive effects on the original work. Fan-made creative works can help keep interest in a book or series alive between new releases or seasons, benefiting the original creator. Overall, while fan fiction writers should be mindful of copyright laws and the fair use doctrine, fan fiction can be a legitimate form of creative expression that engages and expands the original work's fanbase.
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Authors' stance on fan fiction
Fan fiction is a legal grey area. While fan fiction writers can usually cite the "fair use" doctrine to defend their use of copyrighted characters and materials, they can still be sued by the original creator or the estate of the original creator. Thus, many authors have taken a stance against fan fiction, while others have embraced it.
Authors Against Fan Fiction
Some authors have been very vocal about their dislike of fan fiction. For example, Anne Rice, the author of Interview with the Vampire, initially objected to fan fiction based on her characters and formally requested that FanFiction.Net remove stories featuring them. However, in 2012, she took a milder stance, saying, "I got upset about 20 years ago because I thought it would block me... However, it’s been very easy to avoid reading any, so live and let live." Similarly, George R.R. Martin has always been against fan fiction, stating, "Every writer needs to learn to create his own characters, worlds, and settings. Using someone else’s world is the lazy way out." Orson Scott Card, author of Ender's Game, also threatened to sue fan fiction writers, arguing that fan fiction is "an attack on my means of livelihood."
Authors Embracing Fan Fiction
On the other hand, some authors have embraced fan fiction, seeing it as a compliment and a way to keep their work relevant. For instance, K.A. Applegate, the author of the Animorphs series, thanked fan fiction writers in the author's note to the final book, expressing her hope that they would carry the story forward. Likewise, Kelley Armstrong, the author of the Otherworld series, said she would be thrilled if anyone wrote fan fiction based on her books, considering it a compliment. J.K. Rowling, the author of the Harry Potter series, has also given her blessing to fan fiction, despite having similar commercial issues as other authors.
Authors with Conditions
Some authors have a more nuanced stance on fan fiction, setting certain conditions for fan fiction writers to follow. For example, Melissa Marr, the author of the Wicked Lovely series, says she can't read fan fiction but is okay with others writing it as long as they don't make money off of it or post explicit content where minors can easily find it. Similarly, D.J. MacHale, the author of the Pendragon series, is supportive of fan fiction as long as it's non-commercial, while Susan R. Matthews, the author of the Jurisdiction series, has given the okay to fan fiction licensed as "derivative, non-commercial fiction under the Creative Commons umbrella."
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YouTube and copyright claims
Fan-made works often live in a legal grey area. In the United States, fan creators usually cite the "fair use" doctrine when defending their use of copyrighted characters and materials. However, even if fan-made works are non-commercial and transformative, the original creator can still sue for copyright infringement.
YouTube is a platform where copyright claims are prevalent, and it has gained a reputation for not adequately protecting content creators from such claims, even when they are within fair use rules. When a copyright owner finds their copyright-protected content on YouTube without authorization, they can submit a copyright removal request, also known as a "takedown notice". This is a legal request to remove content from YouTube due to alleged copyright infringement. Alternatively, copyright owners can use Content ID, a tool that automatically scans YouTube for copyright-protected content and either blocks, tracks, or monetizes the content depending on the owner's settings.
If a YouTube channel receives a copyright removal request, a copyright strike is applied. This can be resolved, and there are ways to clear the strike from a channel. However, this process can be time-consuming and costly, and large corporations may take advantage of this by threatening lawsuits, even if they know the accused would win.
To avoid copyright claims on YouTube, it is essential to ensure that any copyrighted material used falls within the fair use doctrine. This includes considering whether the work is used in an educational or non-commercial way, if it is demonstrably true, if it includes a substantial percentage of the original, and if it infringes on the reputation or value of the original.
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IP and copyright infringement
Fan-made works and IP infringement is a complex and nuanced area of law. Fan art and fan fiction are considered derivative works, based on copyrighted intellectual property, and as such, they occupy a legal grey area. Creators of fan art and fan fiction must navigate copyright law, trademarks, and IP rights to avoid legal repercussions.
The key legal concept in this area is "fair use" or "fair dealing". In the US, "fair use" dictates that people can use copyrighted works under limited circumstances, such as for educational or non-commercial purposes, criticism, commentary, news reporting, teaching, scholarship, or research. The work must also be used in an educational or non-commercial way, be demonstrably true, and not include a substantial percentage of the original. Fan-made works that are considered "transformative" enough, such as parodies or commentaries, may qualify as fair use and be legal to sell without permission. However, the criteria for fair use is complex and difficult to summarise, and it's important to note that even if a fan-made work falls under fair use, the original creator can still sue for copyright violation.
To avoid infringement, fan creators should get permission from the rights holder. If selling fan art, it is important to obtain licenses from IP rights holders, as many franchises have official licensing programs that allow the approved use of copyrighted elements. Fan creators should also be cautious when using trademarks, as these are separate from copyrights and do not fall under fair dealing or fair use defences. Trademarks can be used on names, titles, logos, slogans, and distinctive elements of a game or brand, including its characters.
In the case of fan-made video games, takedown notices have often been used to stop fan-driven projects. However, it's worth noting that what is considered unlawful and what will receive a takedown notice are often two different things. Many companies will decide their own criteria for enforcement, depending on commercial factors. For example, a large company with extensive merchandise operations may be more likely to enforce their IP rights than a smaller, independent studio.
To summarise, fan creators should understand the licensing limitations around monetisation and seek proper permissions and protections to ensure their fan commerce is ethical, legal, and rewarding for all parties. Consulting an IP lawyer or intellectual property attorney can provide guidance on safely selling fan art or fan fiction without legal repercussions.
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Frequently asked questions
Technically speaking, there are no laws against making and selling fan art in the US. However, copyright owners can sue infringers in federal civil court. If they win, they could claim money from you.
If you want to avoid the threat of a lawsuit, your best option is to get permission from the copyright owner. Some artists are more willing to give permission than others. If you are sued, you can argue that your fan art constitutes fair use, but this can be a stretch.
Copyright infringement occurs when you directly reference or reproduce a pre-existing work, or put your own spin on it. The more closely your work resembles the original, the more likely it is to be considered copyright infringement.
